Bradley v. Tucker et al

Filing 30

ORDER finding that the conduct of Plaintiff's counsel, Nicholas Pagano, warrants the imposition of sanctions. Accordingly, Defendant Officer Tucker's counsel is ordered to provide, within fourteen (14) days of this Order, information regarding number of hours expended on this litigation and the fees charged in order to assist the Court in fashioning a reasonable amount of sanctions. Signed by Judge J. Randal Hall on 07/01/2015. (jah)

IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

ALBERT BRADLEY,

*

Plaintiff,

*
*

v.

*

CV 414-165

*

CHRISTOPHER TUCKER,

in his

*

personal capacity, and JOHN AND

*

JANE DOES 1-20,

*
*

Defendants.

*

ORDER

On

January

Nicholas

6,

Pagano,

2015,

to

show

the

Court

cause

as

ordered

to

why

Plaintiff's

the

Court

sanction him for his conduct in this litigation.1
Pagano

After

has

a

response

timely

review

of

complied

the

with

record

to the Court's

in

the

Court's

this

case

show cause order,

should

(Doc. 28.)

order.

and

counsel,

of

(Doc.

Mr.

not

Mr.
29.)

Pagano's

the Court concludes that

Mr. Pagano's conduct warrants imposition of sanctions.

I.

Under Federal

are

imposed

legal

1

theory

In

that

"when
that

Order

Rule

[a]
has

the

of

RULE

Civil

party

files

11

STANDARD

Procedure

a

no

reasonable

Court

explained

11,

pleading
chance

that

Mr.

sanctions properly

that
of

is

based

success

Pagano

has

on

a

and

that

twice

"come

before the Court and cited his lack of experience in federal court and
unfamiliarity with the Court's Local Rules and Federal Rules of Civil
Procedure as cause for excusing his failure to participate in the Federal
Rule of Civil Procedure 26 conference."

(Doc.

28 at 1.)

cannot be advanced as a reasonable argument
law."

Massengale

v.

(quotation omitted) .

frivolous

claims,

maneuvers."

Ray,

F.3d

"The goal

defenses,

Id. at 13 02

11 thus "imposes

267

1298,

to change

1301

existing

(11th Cir.

2001)

of Rule 11 sanctions is to reduce

or

motions,

and

to

deter

meritless

(internal quotation marks omitted).

a duty on attorneys to certify

that

Rule

they have

conducted a reasonable inquiry and have determined that any papers

filed with the court are well grounded in fact,
and

not

interposed

for

any

improper purpose."

Hartmarx Corp.,

496 U.S.

384,

omitted).

attorney

violates

research

An
legal

precedent

393

(1990)

this

adequately

729

F.

Supp.

1329,

obligation

or

1332

Cooter

& Gell v.

(internal quotation marks

by

"by

seeking

clearly inapposite or nonexisting precedent."
Hialeah,

legally tenable,

(S.D.

failing

relief

to

under

Gutierrez v. City of
Fla.

1990)

(citation

omitted).

In determining whether Rule 11 sanctions are appropriate,
Eleventh
First,

Circuit

the

Court must

objectively

Second,

frivolous,

that

courts

"determine[]

frivolous — in

Worldwide Primates,

1996) .

directs

Inc.

v.

view

employ

whether

of

McGreal,

the
87

a

two-step

the party's

facts

or

F.3d 1252,

the

test.

claims

are

law . . . ."

1254

(11th Cir.

if the Court finds that the claims are objectively

it must ask "whether the person who signed the pleadings

should have been aware that they were frivolous;
he

would have

If

the

Court

been

aware

finds

that

had he made

an

"attorney

a

that

reasonable

failed

to

is,

whether

inquiry."

make

a

Id.

reasonable

inquiry,

then

attorney's

the

good

court

faith

must

belief

impose

that

the

sanctions

claims

despite

were

the

sound."

Id.

(emphasis added).

Importantly,

under Rule
Due

"[ajttorneys

11 have

Process

.

.

.

facing

possible

discipline

interests qualifying for protection under the

Clause

of

819 F.2d 1551, 1558

the

Fifth Amendment."

(11th Cir. 1987).

Donaldson v.

Clark,

Thus, Courts must provide an

attorney who

is facing discipline notice and an opportunity to be

heard.

Id.

The Court has provided Mr. Pagano with notice of the

conduct

at

Court's

invocation

issue and Mr.
of

Pagano has

Rule

11.

responded in writing to

(Doc.

29.)

Thus,

the

Court

sanctions

test,

the

that

claims

the
will

now turn to the appropriateness of Rule 11 sanctions.

II.

Turning

previously

to

the

found,

first

and

pertaining

to

warrantless

search of

APPLICATION

prong of

reiterates

Officer

the

here,

Tucker — claims

an

the

arising

automobile — were

advanced

out

objectively

Court

of

the

frivolous.

There was no allegation in the complaint that Officer Tucker lacked

probable

cause

concedes

that

to
he

search
filed

the

this

automobile.
cause

of

existence of probable cause . . . ."
gravamen

of

despite

the

the

purported

existence

probable

action

"in

(Doc. 29 at 4.)

claim against

of

Indeed,

Officer

cause,

Mr.

spite

Pagano
of

the

Rather,

the

Tucker

Officer

was

that,

Tucker's

warrantless

search

of

the

automobile

were no exigent circumstances.

But
to

was

unlawful

because

there

(See Doc. 1 at 6.)

where "a car is readily mobile and probable cause exists

believe

it

contains

contraband,

the

Fourth

Amendment . . . permits police to search the vehicle without more."

Pennsylvania v. Labron,

518 U.S.

938,

940 (1996) .

Plainly, under

established Supreme Court precedent, this "automobile exception" to
the

warrant

Maryland

v.

requirement
Dyson,

527

"has

no

U.S.

separate

465,

466

exigency

(1999).

requirement."

Thus,

the

Court

easily finds that the claims arising out of the allegedly unlawful
search of his automobile were objectively frivolous.

Turning now to the second prong of the Rule 11 analysis,
Court
into

finds
the

Pagano

that

merit

of

advances

cause of

Mr.

Pagano

his

two

failed

client's

bases

to

to make

purported

justify his

action against Officer Tucker,

a reasonable

cause

of

pursuit

both of

of

the

inquiry

action.
his

Mr.

client's

which demonstrate

that he did not, and still has not, engaged in a reasonable inquiry
of the applicable law.

First,

Mr.

Pagano explains

"unique fact situation that
situation

where

the car away at
4.)
would

A

brief

have

the

owner

revealed

of
to

his

[he] ha[d]
of

the time of

search

that

an

client's

never come across" — i.e.,

automobile

the warrantless

was

Pagano

that

the

not

search.

controlling precedent
Mr.

case presented a

able

(Doc.

on point,

Supreme

to

a

drive

2 9 at

however,

Court

of

the

United

States

has

encountered

such

a

situation.

Indeed,

in

Michigan v. Thomas, the Supreme Court found it
clear that the justification to conduct such a warrantless
search does not vanish once the car has been immobilized;
nor does it depend upon a reviewing court's assessment of
the likelihood in each particular case that the car would
have been driven away, or that its contents would have
been tampered with, during the period required for the
police to obtain a warrant.

458 U.S. 259, 261 (1982).2
Mr. Pagano's position evinces a misconception of what "readily
mobile"

means

Supreme

under

Court

corrected

and

this

automobiles,

the

"automobile

Eleventh

Circuit

cases

It

the

misconception.

as

opposed

to

is

U.S.

1286

364,

(11th

367

Cir.

readily mobile]

(1976);

2003)
element

is

see also United States v.

J.,

dissenting)

United

("All

("This

But

on

"inherent

that

Ross,

the

is

v.

would

necessary

798,

is

830

rationale

is

329

to

have

mobility"

that

Watts,

automobile

456 U.S.

^mobility'

search of

of

justifies

See South Dakota v.

States

that

a

point

mobility-in-fact,

warrantless searches of automobiles.
428

exception."

Opperman,
F.3d

satisfy

1282,

[the

operational.");

(1982)

(Marshall,

something

of

a

misnomer since the police ordinarily can remove the car's occupants

and secure the vehicle on the spot.
of

the

vehicle ... is

automobile

exception

to

a

However,

principal

the

warrant

the inherent mobility

basis

for

the

requirement."

Court's

(citation

omitted)).

2
To be sure, the fact situation presented in Thomas was even more
"unique" than the one presented here, as the automobile in Thomas was
impounded, and its owner had been arrested, at the time of the warrantless
search.

See Thomas,

458 U.S.

at 260.

Second,

Mr.

Pagano

states

that

he

"made

the

decision

proceed with this cause of action based on Gant v. Arizona
556

U.S.

332

inapposite

(2009)

as

the

.

.

.

."

Supreme

"automobile exception,"

but

Court

(2009);

at

there

police

to

not

a

search

Gant

with

is

the

556 U.S.

332,

774 F.3d 711, 720-21

Further, Mr. Pagano's

Gant

warrant

automobile incident to a lawful arrest.

[sic] ,

an automobile

See Arizona v. Gant,

is incorrect.

obtain

But

search of

(noting the limit of Gant).

characterization of Gant

4.)

dealt

see also United States v. Baldwin,

(11th Cir. 2014)

require

29

rather with a

incident to a lawful arrest.
335

(Doc.

to

does not

before

Rather,

invariably

searching

an

under Gant, police

may search a vehicle incident to a recent occupant's arrest "if the

arrestee is within reaching distance of the passenger compartment
at

the

time

of

the

vehicle

contains

U.S.

351

at

question
Indeed,

the

2013

require

an

underlying

the

assessment

is

reasonable

offense

of

Clearly,

Supreme

requirement

the

of

it

validity

one of "a

considerations,
McNeely,

the

or

added).

continued

in

warrant

evidence

(emphasis

exception" as

the

search

of

Gant

the

Court

to

the

Gant,

556

arrest."

does

not

"automobile

recognized

the

call

into

exception."
"automobile

limited class of traditional exceptions to

that

of

exception,

apply

categorically and

whether

which

the

may

1559 n.3

(2013)

thus

do

not

policy

justifications

include

exigency-based

are implicated in a particular case."

133 S. Ct. 1552,

believe

Missouri v.

(emphasis added).

Thus,
client's

Mr.

claim

Pagano's
suffer

offered

from

the

justifications
same

for

deficiencies

itself — they are objectively frivolous.

pursuing
as

the

his

claim

It is important to note

that this is not the first time the Court has rejected Mr. Pagano's

theories.

The

justifications

offered here

largely mirror

those

advanced in opposition to Officer Tucker's motion to dismiss.

The

Court explained why Mr. Pagano's theories of recovery are unfounded

in

granting

Tucker,

Officer

Tucker's

2015 WL 64944,

motion

at *6-9

(S.D.

to

Ga.

dismiss,
Jan.

see

Bradley v.

5,

2015),

and does so

not

the

again here.

Mr.

Pagano's

reasonable research,

theories

plainly

are

the position he

Pagano,

however,

Court must

advances

violated

he would have discovered

is patently without merit.3

failed to conduct that research and,

for that,

Mr.
the

sanction him.

III.

Mr.

of

for if he had engaged in even a brief inquiry

of the law governing his client's claims,

that

product

CONCLUSION

Pagano remains resolute in his belief that Officer Tucker
his

client's

constitutional

rights.

But

even

an

attorney's good faith belief in the merits of his client's cause is

3

Even Mr.

Pagano's response to the latest show cause order demonstrates

a serious lack of understanding of his case.
He opens his response by
stating that the Court dismissed with prejudice the claims against Defendant
Tucker but "allow [ed] this case to go forward as to John Does 1-20 . . . ."
(Doc.

29

at

1.)

This

is

incorrect.

Indeed,

the

Honorable

B.

Avant

Edenfield's Order clearly states that "the Court will DISMISS Plaintiff's
Complaint . . . as to the unidentified defendants WITHOUT PREJUDICE."
(Doc.
25 at 13.)

of

no

matter

Primates,

to

the

Inc.,

objective one.

87

Court

F.3d

in

at

Donaldson,

applying

1254.

Rule

The

11.

See

Court's

819 F.2d at 1556.

Worldwide

inquiry

Thus,

is

an

the Court asks

"whether a reasonable attorney in like circumstances could believe

his

actions

were

DaimlerChrysler,

factually

A.G.,

and

legally

331 F.3d 1251,

justified."

1255

Kaplan

(11th Cir.

2003).

v.
The

Court finds that no reasonable attorney could believe the position
that Mr. Pagano has taken with regard to the search of his client's
automobile is legally tenable.

As officers of the Court, attorneys owe a duty to "diligently
research"

their

F.3d 1092, 1095

clients'

claims.

(11th Cir. 1994).

of loyalty to their clients,

not

outweigh

the

justice system.
1546

objectives

For that,

Windsor

Ins.

Co.,

31

And, though attorneys owe a duty

an attorney's loyalties to a client do

attorney owes

to

the

Court

Ltd.,

and

to

the

987 F.2d 1536,

1993).

Court
to

duty an

v.

Malautea v. Suzuki Motor Co.,

(11th Cir.

The

Burns

finds

that

"override"

Mr.

the

Pagano

duties

he

has

allowed

owes

the

his

Court.

client's
See

id.

the Court concludes that sanctions are necessary in order

to deter such conduct in the future.4

Accordingly,

within

FOURTEEN

Officer

(14)

Tucker's

DAYS

of

counsel

this

Order,

is

ORDERED

to provide,

information

regarding

number of hours expended on this litigation and the fees charged in

4

Mr. Pagano also requests that "this Court reverse itself in dismissing

this case with prejudice against Defendant Tucker and allow this case to go
forward."

(Doc.

29

at

5.)

For

the reasons

stated herein,

this meager attempt at arguing for reconsideration.
8

the

Court DENIES

order

to

assist

the

Court

in

fashioning

a

reasonable

amount

of

sanctions.

ORDER

ENTERED

at

Augusta,

Georgia,

this

A

day

2015.

HONORABM^J.

RANDAL HALL

UNITED SPATES DISTRICT JUDGE
}QU3!tfEEN DISTRICT OF GEORGIA

of

July,