16-980-cv
Revellino & Byczek, LLP v. Port Authority of New York & New Jersey

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of March, two thousand seventeen.

Present:
            ROBERT D. SACK,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
_____________________________________

REVELLINO & BYCZEK, LLP, ANTHONY MAHONEY,

                         Appellants,

ERIC RAMIREZ,

                         Plaintiff,

                v.                                                   16-980

PORT AUTHORITY OF NEW YORK & NEW JERSEY
(PANYNJ), Police Officer KEVIN SCHPAKOW,
Police Officer THOMAS JARDINES, Police Officer
ROBERT JOSEPH, Police Officer COLLIN JOURNEY,
Police Officer ANDREW VANNATA, THE CITY OF
NEW YORK, Police Commissioner WILLIAM
BRATTON, THE NEW YORK CITY POLICE
DEPARTMENT, NEW YORK COUNTY D.A. CYRUS
VANCE, JR., Individually and as District Attorney of
New York County, ASST. D.A. RACHEL EHRHARDT,
Individually and as an Assistant District Attorney,



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                       Defendants-Appellees,

PORT AUTHORITY POLICE DEPARTMENT OF NEW
YORK & NEW JERSEY, Police Officer JOHN DOE 1-5,
Assistant District Attorney JOHN DOE, Individually
and as an Assistant District Attorney all being sued
in their Official and Individual Capacities,

                  Defendants.
_____________________________________

For Appellants:                             ANTHONY MAHONEY, Revellino & Byczek, LLP, Lake
                                            Success, NY

For Defendants-Appellees:                   JUAN M. BARRAGAN, (Karla Denalli, on the brief), The
                                            Port Authority of New York and New Jersey, New
                                            York, NY

                                            ELIZABETH N. KRASNOW, (Patricia J. Bailey, on the
                                            brief), for Cyrus R. Vance, District Attorney of New
                                            York County, New York, NY

                                            MEGAN E.K. MONTCALM, (Deborah A. Brenner, on the
                                            brief), for Zachary W. Carter, Corporation Counsel of
                                            the City of New York, New York, NY

       Appeal from an order of the United States District Court for the Southern District of New

York (Cote, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Appellants Anthony Mahoney and the law firm with which he is associated, Revellino &

Byczek, LLP, appeal from an order of the United States District Court for the Southern District

of New York (Cote, J.) dated March 7, 2016, as amended by the district court’s order of March

15, 2016, which imposed sanctions under Federal Rule of Civil Procedure 11(c)(3).         We assume

the parties’ familiarity with the facts, procedural history of the case, and the issues on appeal.




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       Our standards for the imposition of sanctions under Rule 11(c), and for our review of

such sanctions, are relatively well established. In general, Rule 11(c) permits a district court to

impose sanctions for violations of Rule 11(b).       That subsection of the rule, in turn, provides,

inter alia, that “[b]y presenting to the court a pleading, written motion, or other paper . . . an

attorney or unrepresented party certifies that to the best of the person’s knowledge, information,

and belief, formed after an inquiry reasonable under the circumstances . . . the factual

contentions [therein] have evidentiary support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation or discovery.”    Fed.

R. Civ. P. 11(b)(3).

       Rule 11 sanctions may either be pursued by an opposing party or raised sua sponte by a

district court.   Rule 11(c)(2) addresses the situation in which opposing counsel initiates

sanctions proceedings.    In those situations, opposing counsel must serve a notice of the

sanctions claim twenty-one days before moving for sanctions to give the other party an

opportunity to correct the asserted improper filing.     Rule 11(c)(3), on the other hand, permits

the district court to initiate sanctions proceedings sua sponte. In Rule 11(c)(3) cases, however,

“the [twenty-one day] safe harbor does not apply and the court may impose sanctions without

providing opportunity to withdraw the misstatement.”       Muhammad v. Walmart Stores E., L.P.,

732 F.3d 104, 108 (2d Cir. 2013) (per curiam).

       “For sanctions issued pursuant to a motion by opposing counsel, courts have long held

that an attorney [may] be sanctioned for conduct that [is] objectively unreasonable.”            Id.

However, we have held that “the power of the court under Rule 11 to issue sanctions sua sponte

without affording the offender the opportunity to withdraw the challenged document . . . is akin

to the court’s inherent power of contempt.” Id.       Thus, much like contempt orders, sua sponte


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sanctions imposed without permitting the offender the opportunity to withdraw the problematic

filing should issue only upon a finding of subjective bad faith.        Id. (citing In re Pennie &

Edmonds LLP, 323 F.3d 86, 91 (2d Cir. 2003)).

       We review the district court’s decision to impose sanctions for abuse of discretion,

though we have explained that, since the “district court is accuser, fact finder and sentencing

judge all in one,” our review in Rule 11(c)(3) cases “is more exacting than under the ordinary

abuse-of-discretion standard.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 579 F.3d 143, 150

(2d Cir. 2009) (internal quotation marks omitted).     We review the factual findings supporting

the district court’s decision for clear error. S. New Eng. Tel. Co. v. Global NAPS Inc., 624 F.3d

123, 143 (2d Cir. 2010).

       Applying this standard to the facts of this case, we hold that the district court did not

abuse its discretion in finding that the evident elisions in Ramirez’s complaint demonstrate that

the filing was submitted in bad faith, and subjectively so.    See Sec. & Exch. Comm’n v. Smith,

710 F.3d 87, 97-98 (2d Cir. 2013) (holding that omissions can support a finding of bad faith

under Rule 11(c)(3)). The district court appropriately focused, first, on the fact that Mahoney

represented Ramirez in both his criminal and federal civil rights cases and, second, on the ways

in which the representations made in or directly implied by Ramirez’s federal civil rights

complaint, which was signed by Mahoney, run contrary to statements made by Ramirez in

seeking the dismissal of the indictment against him in state court.

       Because the complaint’s key allegations turn on whether the defendant police officers had

probable cause to arrest and to refer the case to the district attorney’s office for prosecution, the

circumstances surrounding his arrest were essential to the merits of Ramirez’s civil case. See

Fabrikant v. French, 691 F.3d 193, 214 (2d Cir. 2012) (holding that probable cause “requires an


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officer to have knowledge or reasonably trustworthy information sufficient to warrant a person

of reasonable caution in the belief that an offense has been committed by the person to be

arrested” (internal quotation marks omitted)). But, as the district court observed, the complaint

makes “no reference at any point . . . to Mr. Ramirez, the plaintiff, having called the Port

Authority officers, having reported in that phone call that there was a gun in the car, [and having]

report[ed] where the car was located and who was in the car with the gun.”             App’x 643.

Further, “[n]ot only is the phone call not reported, there appears to be an accusation here that Mr.

Ramirez has no idea why he was arrested at all other than potentially racial profiling. This

accusation of racial profiling . . . without a description of the phone call is entirely misleading

and false.” Id.

       Appellants make several arguments against the imposition of sanctions. None of these

arguments are availing. Appellants first argue that the officers could not have had probable

cause to arrest because Ramirez later asserted that his wife told him that the weapon was in the

car only when they arrived in New York, and that he parked the car to call the police soon

thereafter. But this is both legally incorrect and unresponsive to the issue at hand. Appellants’

position is legally incorrect because once the police knew that Ramirez knew the gun was in the

car, then the police, upon investigation, and after questioning Ramirez’s wife, who accused

Ramirez of planting the weapon, had probable cause to arrest both Ramirez and his wife. It is

also unresponsive to the issue because, by implying that the officers had no relevant information

supporting probable cause, and specifically alleging that Ramirez had no “knowledge of [the

weapon] being in the automobile while” travelling in the vehicle, the complaint presented the

district court with a set of factual contentions for which appellants had no evidentiary support.

See App’x 23; 136.


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       Appellants also focus us on the “safe harbor” requirement of Rule 11(c)(2), which affords

a party charged with violating Federal Rule of Civil Procedure 11(b) by another party to the case

twenty-one days to withdraw or correct the challenged submission. But, as noted above, this

provision is inapplicable to cases like this one in which the district court issues a sua sponte

order to show cause on sanctions.   See Fed. R. Civ. P. 11(c)(3); Muhammad, 732 F.3d at 108.

       We therefore conclude that the district court did not err in finding that essential

components of the factual allegations in Ramirez’s complaint were unsupportable at the time

they were made and that Mahoney’s familiarity with Ramirez’s case demonstrated his subjective

bad faith.   Hence we find no abuse of discretion in the district court’s decision to impose

sanctions.

                                        *      *       *

       We have considered appellants’ remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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