      16‐2944 (L)
      Kim v. Kimm 
       

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3                                  August Term, 2017
 4              (Submitted: October 23, 2017        Decided: February 27, 2018)
 5                             Docket Nos. 16‐2944, 16‐3115

 6 
 7 
 8                                      DANIEL KIM,
 9                           Plaintiff‐Appellant‐Cross‐Appellee,

10                                             v.

11      MICHAEL S. KIMM D/B/A KIMM LAW FIRM, MICHAEL‐HYUN W. LEE, HYUNG SUK
12      CHOI A/K/A STEPHEN CHOI, CHUL HO PARK A/K/A/ CHARLIE PARK, JIN YOUNG
13       CHUNG A/K/A JAMIE CHUNG, CHARLIE AND YOU, INC. D/B/A SIK GAEK, SWAN
14                             U.S.A., INC. D/B/A SIK GAEK,
15                        Defendants‐Appellees‐Cross‐Appellants, 
16                                             
17                              MICHAEL‐HYUN W. LEE,  
18                                 Defendant‐Appellee, 
19 
20                        HYUNG SUK CHOI, AKA STEPHEN CHOI,
21                                   Defendant.
22 
23    Before:     JACOBS, SACK, AND PARKER, Circuit Judges.

24          Plaintiff‐Appellant Daniel Kim appeals from a judgment entered in favor

25    of Defendants‐Appellees Michael S. Kimm, Michael‐Hyun W. Lee, Hyung Suk

26    Choi, Chul Ho Park, Charlie Park, Jin Young Chung, Charlie and You, Inc., and
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                                                                            Kim v. Kimm, et al. 
       
 1    Swan U.S.A., Inc., by the United States District Court for the Eastern District of

 2    New York (Allyne R. Ross, Judge). Kim alleges that the defendants were

 3    members of two enterprises that conspired to sue him for, inter alia, trademark

 4    infringement, and brings claims against them pursuant to the Racketeer

 5    Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. In two

 6    opinions, the district court granted the defendantsʹ motion to dismiss, denied the

 7    plaintiffʹs motions to disqualify the defendantsʹ counsel and for leave to amend

 8    his amended complaint, and denied the defendantsʹ motion for sanctions. We

 9    agree with the district courtʹs resolution of these motions. Accordingly, the

10    judgment of the district court is


11          AFFIRMED.


12                                           DANIEL KIM, Haworth, NJ, Plaintiff‐
13                                           Appellant‐Cross‐Appellee, pro se.
14                                           MICHAEL S. KIMM, ADAM GARCIA, Kimm
15                                           Law Firm, Englewood Cliffs, NJ, for 
16                                           Defendants‐Appellees‐Cross‐Appellants. 
17    SACK, Circuit Judge:

18          The plaintiff Daniel Kim brings this action pursuant to the Racketeer

19    Influenced and Corrupt Organizations Act (ʺRICOʺ), 18 U.S.C. § 1961, et seq.,

20    alleging that the defendants engaged in a scheme to fraudulently bring suit


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                                                                             Kim v. Kimm, et al. 
       
 1    against him for, inter alia, trademark infringement. The defendants moved to

 2    dismiss the action for failure to state a claim under Federal Rule of Civil

 3    Procedure 12(b)(6), arguing that their prior acts, as part of litigation they brought

 4    against the plaintiff, do not constitute predicate acts for purposes of RICO. Kim

 5    subsequently moved to disqualify defendant Michael S. Kimm as counsel for the

 6    defendants and sought leave to further amend his amended complaint.


 7          The United States District Court for the Eastern District of New York

 8    (Allyne R. Ross, Judge) dismissed Kimʹs action for failure to state a claim,

 9    agreeing with the defendants that Kim could not sustain a RICO action based on

10    the defendantsʹ prior litigation activities. The district court also denied Kimʹs

11    motion for leave to amend and to disqualify Kimm as counsel for the defendants.

12    The defendants then moved for sanctions pursuant to Federal Rules of Civil

13    Procedure Rule 11. The district court denied the motion.


14          Kim, now proceeding pro se, appeals the district courtʹs judgment

15    dismissing his action and the district courtʹs denial of his motions for leave to

16    amend and to disqualify Kimm. Kimm and his co‐defendants cross‐appeal,

17    challenging the district courtʹs denial of sanctions against Kim. We agree with

18    the district court that the alleged litigation activities do not constitute RICO

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                                                                                Kim v. Kimm, et al. 
       
 1    predicate acts. We also conclude that the district court did not abuse its

 2    discretion in denying Kim leave to amend, Kimʹs motion to disqualify, and the

 3    defendantsʹ motion for sanctions. The judgment of the district court is therefore

 4    affirmed. 


 5                                      BACKGROUND 


 6          I.     The Sik Gaek I Lawsuit 


 7          The instant action arises from an earlier litigation, Sik Gaek, Inc. v. Yogiʹs II, 

 8    Inc., et al., No. 10‐CV‐4077 (ARR) (E.D.N.Y. 2010) (ʺSik Gaek Iʺ), which was filed in

 9    the United States District Court for the Eastern District of New York on

10    September 7, 2010. In Sik Gaek I, Sik Gaek, Inc., the owner and operator of a

11    restaurant, sued Daniel Kim and the restaurant Kim owned, Yogiʹs II, Inc., over

12    the use of a trademark that Sik Gaek, Inc. allegedly owned. Sik Gaek, Inc.

13    alleged that Kim and Yogiʹs II, Inc. had failed to pay a $2 million fee pursuant to

14    a trademark license agreement and that, ʺin a sinister scheme,ʺ Kim had

15    attempted to circumvent the license and register the trademark himself.  

16    Appellant Appʹx at 48–52. Sik Gaek, Inc. brought claims against Kim and Yogiʹs

17    II, Inc. for, inter alia, breach of contract, fraudulent trademark registration, and

18    trademark infringement. The district court granted summary judgment in favor

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                                                                              Kim v. Kimm, et al. 
       
 1    of the defendant Kim on August 14, 2014. Sik Gaek, Inc. v. Yogiʹs II, Inc., 2014 WL

 2    4063403, 2014 U.S. Dist. LEXIS 113165 (E.D.N.Y. Aug. 14, 2014). On August 21,

 3    2014, the remaining claims against the defendant Yogiʹs II, Inc. were dismissed

 4    by agreement of the parties.


 5          II.    District Court Proceedings 


 6          On August 15, 2015, Daniel Kim, a lawyer and a defendant in Sik Gaek I,

 7    filed the instant action, bringing claims against parties in the Sik Gaek I lawsuit:

 8    the owner of Sik Gaek, Inc., his wife and business partner, their two attorneys,

 9    and an accountant. In his amended complaint, Kim alleges that the defendants

10    were members of two criminal enterprises that conspired to sue him for

11    trademark infringement and breach of contract in Sik Gaek I. According to Kim,

12    the Sik Gaek I lawsuit was nothing more than an ʺill‐conceived scheme or artificeʺ

13    designed to ʺextort $2 millionʺ from him. Appellant Appʹx at 9. Kim alleges that

14    the defendants completed false paperwork to pose as the owners of a trademark,

15    licensed the trademark to a third‐party, and then sued Kim for violating the

16    licensing agreement. Kim claims that these false legal documents were intended

17    to mislead the district court and therefore were predicate acts of obstruction of

18    justice, mail fraud, and wire fraud that constituted a pattern of racketeering

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                                                                            Kim v. Kimm, et al. 
       
 1    activity. Kim also brought a RICO conspiracy claim, alleging that ʺthe entire

 2    scheme or artifice could never have been set in motion without the express

 3    agreement, cooperation and coordination of each individual defendant and his

 4    assigned role.ʺ Appellant Appʹx at 40. 


 5          On September 11, 2015, the defendants filed a motion to dismiss for failure

 6    to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 7    The defendants argued that Kim had failed adequately to allege a pattern of

 8    racketeering activity, as required to state a RICO claim. The defendants raised

 9    other arguments supporting their motion to dismiss, based on, inter alia, the

10    doctrines of collateral estoppel and res judicata. Kim subsequently moved to

11    disqualify Kimm as counsel in this litigation and to bar him from participating in

12    any defendantʹs defense other than his own. Kim also opposed the defendantsʹ

13    motion to dismiss and moved for leave to file a second amended complaint.  


14          By unpublished opinion and order dated August 9, 2016, the district court

15    granted the defendantsʹ motion to dismiss. Appellant Appʹx at 257–76. The

16    court decided that Kim had failed to state a RICO claim because he had not

17    alleged predicate acts constituting a pattern of racketeering activity. The court

18    found that most of the alleged predicate acts concerned litigation activity in Sik 

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                                                                             Kim v. Kimm, et al. 
       
 1    Gaek I—specifically, the preparing, signing, and filing of declarations by Chul Ho

 2    Park, Michael Kimm, and Hyung Suk Choi, all of whom are defendants in the

 3    instant action—and reasoned that ʺ[w]ell‐established precedent and sound

 4    public policy preclude such litigation activities from forming the basis for

 5    predicate acts under [RICO].ʺ Dist. Ct. Op. at 8, Appellant Appʹx at 264. The

 6    district court noted that Kimʹs amended complaint also included pre‐litigation

 7    activities alleged as predicate acts, but found these allegations deficient as a

 8    matter of law.


 9          In its August 9, 2016, opinion and order, the district court also denied

10    Kimʹs motion to disqualify Kimm as counsel, concluding that the motion was

11    rendered moot by the district courtʹs dismissal of Kimʹs amended complaint.

12    Finally, the district court denied Kim leave to amend his complaint, reasoning

13    that amendment would be futile because the proposed amendments only added

14    additional litigation activities by the defendants which, as such, were insufficient

15    to form the basis for a RICO predicate act. 


16          The defendants then moved for sanctions against Kim, arguing that his

17    lawsuit was meritless and seeking to recover fees expended in defending the Sik 

18    Gaek I litigation. The district court denied the motion and in an unpublished

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                                                                                    Kim v. Kimm, et al. 
       
 1    opinion and order dated August 12, 2016, concluded that Kimʹs claims were

 2    neither legally nor factually frivolous. The district court reasoned that although

 3    it had joined the majority of courts in concluding that litigation activity could not

 4    be predicate acts under RICO, at least some courts held differently and sanctions

 5    were therefore inappropriate.


 6                  Kim timely appealed to this Court from the district courtʹs dismissal of his

 7    action and denial of his motions for leave to amend his complaint and to

 8    disqualify Kimm. The defendants timely cross‐appealed from the district courtʹs

 9    denial of their motion for sanctions. 


10                                                                   DISCUSSION 


11               I.         Failure to State a RICO Claim


12                  The first issue in this appeal is whether the district court erred in granting

13    the defendantsʹ motion to dismiss pursuant to Rule 12(b)(6). Kim challenges the

14    district courtʹs holding that the defendantsʹ alleged litigation activities did not

15    constitute predicate acts for purposes of RICO.1


                                                                  
         Kim does not raise any arguments regarding the district courtʹs holding that the
          1

      alleged pre‐litigation activities failed to state a RICO claim. We therefore conclude that
      Kim has waived any such argument. See Norton v. Samʹs Club, 145 F.3d 114, 117 (2d Cir.
      1998).
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                                                                                 Kim v. Kimm, et al. 
       
 1           ʺWe review de novo a district courtʹs dismissal of a complaint pursuant to

 2    Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations

 3    in the complaint as true, and drawing all reasonable inferences in the plaintiffʹs

 4    favor.ʺ Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive

 5    a motion to dismiss, a complaint ʺmust contain sufficient factual matter, accepted

 6    as true, to state a claim to relief that is plausible on its face.ʺ Ashcroft v. Iqbal, 556

 7    U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)

 8    (internal quotation marks omitted)).


 9                     A.     RICO 


10           Section 1964(c) of RICO, 18 U.S.C. §§ 1961–1968, provides a private right of

11    action to any person injured in its business or property by reason of a violation of

12    the activities prohibited by section 1962. ʺTo establish a RICO claim, a plaintiff

13    must show: (1) a violation of . . . 18 U.S.C. § 1692; (2) an injury to business or

14    property; and (3) that the injury was caused by the violation of Section 1962.ʺ

15    Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir. 2013) (quoting DeFalco v. 

16    Bernas, 244 F.3d 286, 305 (2d Cir. 2001)). This appeal implicates the first of these

17    requirements, viz., whether the plaintiff has adequately alleged a violation of

18    section 1962. To establish such a violation, a plaintiff must show ʺ(1) conduct

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                                                                              Kim v. Kimm, et al. 
       
 1    (2) of an enterprise (3) through a pattern (4) of racketeering activity.ʺ DeFalco v. 

 2    Bernas, 244 F.3d 286, 306 (2d Cir. 2001) (quoting Sedima, S.P.R.L. v. Imrex Co., 473

 3    U.S. 479, 496 (1985)).


 4          Here, the defendants argue—and the district court held—that Kim failed

 5    adequately to allege a pattern of racketeering activity. ʺRacketeering activityʺ is

 6    defined to include any ʺactʺ indictable under various specified federal statutes,

 7    including the mail and wire fraud statutes and the obstruction of justice statute.

 8    See 18 U.S.C. § 1961(1) (defining ʺracketeering activityʺ to include offenses

 9    indictable under 18 U.S.C. §§ 1341 (relating to mail fraud), 1343 (relating to wire

10    fraud), and 1503 (relating to obstruction of justice)). A ʺpattern of racketeering

11    activityʺ is defined by the statute as ʺat least two acts of racketeering activityʺ

12    within a ten‐year period. 18 U.S.C. § 1691(5).


13                    B.       Litigation Activity as RICO Predicate Acts 


14          Here, Kim purports to allege various predicate acts of mail fraud, wire

15    fraud, and obstruction of justice allegedly committed by the defendants. Most of

16    the alleged predicate acts concern actions purportedly taken by the defendants

17    during the Sik Gaek I litigation. Specifically, Kim alleges that the defendants

18    committed obstruction of justice, mail fraud, and wire fraud by:

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                                                                              Kim v. Kimm, et al. 
       
 1           Preparing, signing, and electronically filing a November 14, 2010,

 2              declaration sworn by defendant Chul Ho Park;


 3           Preparing, signing, and filing a December 21, 2010, declaration sworn to

 4              by defendant Park;


 5           Preparing, signing, and filing a February 13, 2012, declaration sworn by

 6              defendant Kimm; and


 7           Preparing, signing, and filing a March 14, 2014, declaration sworn by

 8              defendant Hyung Suk Choi.


 9          Kim alleges that each of the four declarations were prepared, signed, and

10    filed with full knowledge that they contained fraudulent representations

11    intended to persuade the district court to find in favor of Sik Gaek, Inc.  The

12    district court concluded that these litigation activities could not provide a basis

13    for predicate acts under Section 1962(c). It therefore dismissed Kimʹs complaint

14    for failure to state a claim. We affirm for substantially the reasons set forth by

15    the district court.


16           Although we have not spoken directly on the issue, other courts have held

17    that ʺ[i]n the absence of corruption,ʺ such litigation activity ʺcannot act as a



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                                                                               Kim v. Kimm, et al. 
       
 1    predicate offense for a civil‐RICO claim.ʺ Snow Ingredients, Inc. v. SnoWizard, Inc.,

 2    833 F.3d 512, 525 (5th Cir. 2016); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1087–88

 3    (11th Cir. 2004) (deciding that the ʺalleged conspiracy to extort money through

 4    the filing of malicious lawsuitsʺ were not predicate acts of extortion or mail fraud

 5    under RICO); Deck v. Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir. 2003)

 6    (deciding that meritless litigation is not a predicate act of extortion under RICO);

 7    Gabovitch v. Shear, 70 F.3d 1252 (table), 1995 WL 697319, at *2, 1995 U.S. App.

 8    LEXIS 32856, at *5 (1st Cir. 1995) (per curiam) (concluding that ʺproffering false

 9    affidavits and testimony to [a] state courtʺ does not constitute a predicate act of

10    extortion or mail fraud); see also Curtis & Assocs., P.C. v. Law Offices of David M. 

11    Bushman, Esq., 758 F. Supp. 2d 153, 171–72 (E.D.N.Y. 2010) (collecting cases from

12    district courts in the Second Circuit deciding ʺthat the litigation activities alleged

13    in [the complaint before the court] cannot properly form the basis for RICO

14    predicate actsʺ). We agree with the reasoning of these opinions and conclude

15    that allegations of frivolous, fraudulent, or baseless litigation activities—without

16    more—cannot constitute a RICO predicate act.


17          As the district court explained, there are compelling policy arguments

18    supporting this rule. First, ʺ[i]f litigation activity were adequate to state a claim


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                                                                                Kim v. Kimm, et al. 
       
 1    under RICO, every unsuccessful lawsuit could spawn a retaliatory action,ʺ which

 2    ʺwould inundate the federal courts with procedurally complex RICO pleadings.ʺ

 3    Dist. Ct. Op. at 10–11, Appellant Appʹx at 266–67; see also Nora F. Engstrom,

 4    Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 MICH. L. REV. 639, 696

 5    (2017) (permitting RICO suits based on prior litigation activities would

 6    ʺengender wasteful satellite litigationʺ). Furthermore, ʺpermitting such claims

 7    would erode the principles undergirding the doctrines of res judicata and

 8    collateral estoppel, as such claims frequently call into question the validity of

 9    documents presented in the underlying litigation as well as the judicial decisions

10    that relied upon them.ʺ Dist. Ct. Op. at 11, Appellant Appʹx at 267; see also

11    Gabovitch, 1995 WL 697319, at *3, 1995 U.S. App. LEXIS 32856, at *7‐8 (ʺIn essence,

12    simply by alleging that defendantsʹ litigation stance in the state court case was

13    ʹfraudulent,ʹ plaintiff is insisting upon a right to relitigate that entire case in

14    federal court . . . . The RICO statute obviously was not meant to endorse any

15    such occurrence.ʺ). Moreover, endorsing this interpretation of RICO ʺwould chill

16    litigants and lawyers and frustrate the well‐established public policy goal of

17    maintaining open access to the courtsʺ because ʺany litigantʹs or attorneyʹs

18    pleading and correspondence in an unsuccessful lawsuit could lead to drastic


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                                                                               Kim v. Kimm, et al. 
       
 1    RICO liability.ʺ Dist. Ct. Op. at 11, Appellant Appʹx at 267 (quoting Curtis & 

 2    Assocs., 758 F. Supp. 2d at 173); see also Engel v. CBS, Inc., 182 F.3d 124, 129 (2d

 3    Cir. 1999) (noting the ʺstrong public policy of open access to the courts for all

 4    parties and [the need] to avoid ad infinitum [litigation] with each party claiming

 5    that the opponentʹs previous action was malicious and meritlessʺ (internal

 6    quotation marks and citations omitted) (second brackets in original)).


 7          Kim relies on Sykes v. Mel S. Harris & Associates LLC, 780 F.3d 70 (2d Cir.

 8    2015) to argue that this Court ʺhas recognized RICO claims against attorneys . . .

 9    for obtaining default judgments under false pretenses set forth in sham affidavits

10    of services.ʺ Appellant Br. at 16. Kimʹs reliance on this case is misplaced. As a

11    preliminary matter, it seems likely that Kim meant to cite a district court opinion

12    in that case, Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413, 418 (S.D.N.Y.

13    2010), instead. There, the district court denied the defendantsʹ motion to dismiss

14    the plaintiffsʹ section 1962(c) claims, observing that the plaintiffs pleaded a

15    pattern of racketeering activity that included ʺat least twenty allegedly

16    fraudulent statements and eighteen acts involving use of the mail and wires over

17    three years, in furtherance of the alleged fraud.ʺ Id. at 425. Our 2015 opinion

18    cited by Kim addressed whether the district court abused its discretion by


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                                                                             Kim v. Kimm, et al. 
       
 1    certifying class actions; we did not review the district courtʹs denial of the

 2    defendantsʹ motion to dismiss. See Sykes, 780 F.3d at 79–80.


 3          The district court opinion, even were it binding on us—which, unlike this

 4    Courtʹs subsequent decision, of course, it is not—is also distinguishable from the

 5    case at bar. The plaintiffs in Sykes alleged that the defendants engaged in a

 6    ʺmassive scheme,ʺ in which a debt‐buying company, a law firm, a process‐

 7    serving company, and others conspired with one another by buying consumer

 8    debt, initiating actions against the debtors and improperly serving them, and

 9    then filing fraudulent documents in state court to obtain default judgments. Id.

10    at 418–20. Accordingly, even though those defendants used litigation to carry

11    out their scheme, they also engaged in a variety of other out‐of‐court actions to

12    further this activity. In the case at bar, by contrast, the entire alleged scheme

13    involved the creation of fraudulent court documents.


14          We decline to reach the issue of whether all RICO actions based on

15    litigation activity are categorically meritless. We conclude only that where, as

16    here, a plaintiff alleges that a defendant engaged in a single frivolous, fraudulent,

17    or baseless lawsuit, such litigation activity alone cannot constitute a viable RICO

18    predicate act. We therefore agree with the district courtʹs thorough and well‐

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                                                                              Kim v. Kimm, et al. 
       
 1    reasoned analysis to that effect and affirm its dismissal of Kimʹs amended

 2    complaint.


 3        II.      Leave to Amend the Complaint 


 4              Kim contends that the district court also erred by denying him leave to file

 5    a second amended complaint. We review the district courtʹs denial of leave to

 6    amend for abuse of discretion. ATSI Commcʹns, Inc. v. Shaar Fund, Ltd., 493 F.3d

 7    87, 108 (2d Cir. 2007). ʺAlthough Rule 15(a) of the Federal Rules of Civil

 8    Procedure provides that leave to amend ʹshall be freely given when justice so

 9    requires,ʹ it is within the sound discretion of the district court to grant or deny

10    leave to amend.ʺ McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

11    2007) (citation omitted). Leave to amend may be denied ʺfor good reason,

12    including futility, bad faith, undue delay, or undue prejudice to the opposing

13    party.ʺ Id. Here, Kimʹs proposed second amended complaint only added more

14    litigation‐related predicate acts, such as allegations pertaining to deposition

15    testimony, declarations, and court filings that he contends were fraudulent.

16    These proposed amendments do not change the nature of the alleged predicate

17    acts—litigation activities—which for the reasons discussed above, are deficient as

18    a matter of law. Therefore, because the proposed amendments would have no

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                                                                               Kim v. Kimm, et al. 
       
 1    impact on the basis for the district courtʹs dismissal and would consequently be

 2    futile, the district court did not abuse its discretion in denying Kim leave to

 3    amend. See Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) (ʺ[I]t is well established

 4    that leave to amend a complaint need not be granted when amendment would be

 5    futile.ʺ).


 6        III.      Motion to Disqualify


 7               Kim next argues that the district court erred by denying Kimʹs motion to

 8    disqualify Kimm as counsel for the defendants. We review the district courtʹs

 9    failure to disqualify counsel for abuse of discretion. See Bobal v. Rensselaer 

10    Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990). Kim contends that the district

11    court should have disqualified Kimm under the ʺadvocate‐witnessʺ rule. “The

12    advocate‐witness rule applies, first and foremost, where the attorney

13    representing the client before a jury seeks to serve as a fact witness in that very 

14    proceeding.” Ramey v. Dist. 141, Int’l Ass’n of Machinists & Aerospace Workers, 378

15    F.3d 269, 282 (2d Cir. 2004) (first emphasis added; second emphasis in the

16    original). Here, the district court decided that Kimʹs motion to disqualify was

17    moot because it had already dismissed Kimʹs amended complaint with prejudice.

18    This was not an abuse of discretion. After the district court dismissed Kimʹs

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                                                                                        Kim v. Kimm, et al. 
       
 1    amended complaint, there was no likelihood that Kimm would testify as a fact

 2    witness before a jury. Therefore, the district court properly dismissed Kimʹs

 3    disqualification motion as moot.


 4            IV.           Motion for Sanctions

 5                  The defendants argue that the district court erred in denying their motion

 6    for sanctions against Kim, which they sought pursuant to Rule 11 of the Federal

 7    Rules of Civil Procedure and 28 U.S.C. § 1927.2 Rule 11 requires the ʺattorney or

 8    unrepresented partyʺ filing litigation documents to certify that the documents:


 9                          (1) [are] not being presented for any improper purpose, such as
10                          to harass, cause unnecessary delay, or needlessly increase the
11                          cost of litigation [and] (2) the claims, defenses, and other legal
12                          contentions are warranted by existing law or by a nonfrivolous
13                          argument for extending, modifying, or reversing existing law or
14                          for establishing new law.
15 
16    Fed. R. Civ. P. 11(b). 28 U.S.C. § 1927 provides that ʺ[a]ny attorney . . . who so

17    multiplies the proceedings in any case unreasonably and vexatiously may be

18    required by the court to satisfy personally the excess costs, expenses, and


                                                                  
         Although 28 U.S.C. § 1927 only reaches attorneys, the provision was potentially
          2

      applicable because Kim was represented by counsel before the district court, only
      proceeding pro se in this appeal. Insofar as Kim himself had undertaken conduct
      violating § 1927, he also could have been sanctioned under that provision because he is
      in fact a lawyer, and we have held that § 1927 reaches litigants proceeding pro se who
      are lawyers. See Sassower v. Field, 973 F.2d 75, 80 (2d Cir. 1992).
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                                                                              Kim v. Kimm, et al. 
       
 1    attorneysʹ fees reasonably incurred because of such conduct.ʺ To impose

 2    sanctions under this provision, ʺa court must find clear evidence that (1) the

 3    offending partyʹs claims were entirely without color, and (2) the claims were

 4    brought in bad faith—that is, ʹmotivated by improper purposes such as

 5    harassment or delay.ʹʺ Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir. 2000)

 6    (quoting Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999)).


 7    We review the district courtʹs denial of sanctions for abuse of discretion. Perez v. 

 8    Posse Comitatus, 373 F.3d 321, 325–26 (2d Cir. 2004).


 9          The defendants argue that sanctions were appropriate because Kimʹs

10    claims were legally and factually frivolous. We conclude, however, that

11    although Kimʹs amended complaint ultimately failed to state a RICO claim, his

12    claims were not so obviously foreclosed by precedent as to make them legally

13    indefensible. At the time Kim filed this suit, there was no binding precedent in

14    this Circuit as to whether litigation activities could serve as predicate acts for

15    purposes of RICO. Indeed, some courts had endorsed the viability of some such

16    claims. See Sykes, 757 F. Supp. 2d at 425–26. Therefore, Kimʹs claims ʺwere not

17    foreclosed a priori by binding precedent even if they were unlikely to succeedʺ

18    and Kimʹs position ʺwas not unsupported by case law even though the cases he

                                                19
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                                                                             Kim v. Kimm, et al. 
       
 1    cited were not binding on the court adjudicating his claims.ʺ Fishoff v. Coty Inc.,

 2    634 F.3d 647, 655 (2d Cir. 2011).


 3          The defendants assert that sanctions are also appropriate because Kimʹs

 4    claims are barred by the doctrines of collateral estoppel and res judicata,

 5    rendering Kimʹs lawsuit frivolous. However, the defendants raise this issue only

 6    in a cursory manner, without advancing any substantive arguments to support

 7    their claim that Kimʹs lawsuit is precluded by earlier litigation. We therefore

 8    conclude that the defendants have waived this argument. See Lederman v. New 

 9    York City Depʹt of Parks & Recreation, 731 F.3d 199, 203 n.1 (2d Cir. 2013)

10    (ʺ[A]ppellants must include in their briefs their ʹcontentions and the reasons for

11    them, with citations to the authorities and parts of the record on which the

12    appellant relies.ʹ Issues not sufficiently argued will be deemed waived and

13    ineligible for appellate review.ʺ (quoting Fed. R. App. P. 28(a)(9)(A))).


14          For these reasons, we conclude that the district court did not abuse its

15    discretion in denying the defendantsʹ motion for sanctions.




                                                20
                                                                       16‐2944, 16‐3115
                                                                      Kim v. Kimm, et al. 
      
1                                   CONCLUSION 
2           We have considered the partiesʹ remaining arguments on appeal and find

3    them to be without merit. For the foregoing reasons, we AFFIRM the judgment

4    of the district court.




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