NUFRIO v. MORRIS/SUSSEX VICINAGE PROBATION SERVICES DIVISIONS JOHN DOES 1-5 AND JIM DOES CORPS 1-5 et al
Filing
26
OPINION. Signed by Judge William J. Martini on 2/9/12. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARC NUFRIO,
Plaintiff,
11-CV-3232
v.
OPINION
PATRICIA QUINTAVELLA, et al.,
Defendants.
This matter comes before the Court on a motion by Defendants Drinker
Biddle & Reath LLP, Drinker Biddle & Shanley, LLP, Andrew White, Robert
Ciolek, Karyn Nufrio, and Essex County Volunteer Lawyers for Justice
(collectively the “Moving Defendants”) for sanctions against Plaintiff Marc Nufrio
pursuant to Federal Rule of Civil Procedure 11.
For the reasons discussed below, the Court will grant the motion and
sanction Mr. Nufrio.
I.
Factual and Procedural Background
Mr. Nufrio has a long history of frivolous litigation. Mr. Nufrio and his wife,
Defendant Karyn Nufrio, divorced in 1999. Since that time, Mr. Nufrio has
continuously sued his wife and any other party or entity that has had any
involvement in the related litigation. He has been sanctioned at least four different
times relating to this incessant litigation:
• On December 22, 2002, the Honorable Thomas P. Zampino, J.S.C.,
Superior Court of New Jersey, Chancery Division, Family Part, Essex
County, barred Mr. Nufrio from filing any suits or motions in the
entire State of New Jersey naming Ms. Nufrio as a defendant for a
period of six months.
• On January 12, 2004, the Honorable Dennis V. Nieves, J.S.C.,
Superior Court of New Jersey, Chancery Division, Family Part,
Middlesex County, found that Mr. Nufrio’s “countless requests are
duplicative, unintelligible and lack any legal basis.” Judge Nieves
also noted that Mr. Nufrio had “attempted in his filings to modify
1
many prior orders that have either previously been litigated and
decided by other Courts or upheld [on appeal].” Among various relief
he granted, Judge Nieves barred Mr. Nufrio from making further
baseless filings naming Ms. Nufrio as a defendant because Mr.
Nufrio’s conduct “amounted to harassment, vexatious litigation and
an abuse of process.” Judge Nieves also ordered Mr. Nufrio to pay
$7,500 in attorney’s fees as a sanction. Finally, Judge Nieves further
ordered that Mr. Nufrio would face sanctions of $500 for any future
frivolous filings.
• On December 14, 2004, the Honorable Ariel A. Rodriguez, P.J.A.D.,
Superior Court of New Jersey, Appellate Division, found that Mr.
Nufrio’s objective was “to harass his adversary [Ms. Nufrio]” and
barred Mr. Nufrio from further filings in the suit. Judge Rodriguez
also entered an order to show cause why Mr. Nufrio should not be
ordered to pay attorney’s fees.
• On March 14, 2006, the Honorable Joseph L. Rea, J.S.C., Superior
Court of New Jersey, Chancery Division, Family Part, Middlesex
County, ordered Mr. Nufrio to pay $5,000 as a monetary sanction for
his litigation conduct. Judge Rea also ordered Mr. Nufrio to pay
$2,000 in attorney’s fees.
More recently, on August 20, 2009, the Honorable Joseph J. Riva, J.S.C.,
Superior Court of New Jersey, Law Division, Civil Part, Passaic County, warned
Mr. Nufrio that “your motion is frivolous, [and] as sure as I’m sitting here, there
will be sanctions.” 1
On June 3, 2011, Mr. Nufrio filed the above-captioned action with this
Court. His list of defendants grew far beyond his ex-wife to include various parties
that he alleged were involved in deprivation of various unspecified civil and
constitutional rights. Aside from Ms. Nufrio, he named as defendants in this action:
Patricia Quintavella; Morris/Sussex Vicinage Probation Services; the State of New
Jersey; the County of Morris; Morris County Sheriff; Ms. Nufrio’s former pro
bono counsel and Drinker Biddle & Reath LLP, the firm with which her pro bono
counsel was associated; Drinker Biddle & Shanley, a predecessor entity to Drinker
Biddle & Reath LLP that no longer exists; the Administrative Office of the Courts
(presumably of New Jersey); Essex County Volunteer Lawyers for Justice, a nonprofit organization that previously provided free legal services to Ms. Nufrio; and
various fictitious entities.
On December 5, 2011, this Court dismissed the above-captioned action for
1
These prior state decisions are public records of which the Court takes judicial notice. Pension Benefit Guar. Corp.
v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
2
lack of subject matter jurisdiction.2 ECF No. 22. The Court found that the parties
were not completely diverse because both Mr. Nufrio and various defendants
resided in New Jersey. The Court also found that it lacked federal question
jurisdiction over the action. In doing so, the Court noted the frivolous nature of Mr.
Nufrio’s papers:
Despite being seventy-two pages in length, the Complaint alleges no
specific statements with respect to these Counts, and it does not allege
how these unspecified statements could violate either Section 1983 or
any federal civil discrimination statute. Indeed, the Court is at a loss to
see how any of the factual allegations of the Complaint could state
any causes of action with respect to these statutes. The Counts appear
to have resulted from shotgun pleading, modeled after some kind of
form complaint, and drafted with the intent of alleging that nearly
every defendant violated some vague federal law through essentially
unspecified conduct. The references to non-specific federal law
scattered throughout these allegations appear to be little more than an
attempt to create federal jurisdiction.
Id. at 4.
On December 9, 2011, the Moving Defendants filed this motion for
sanctions alleging that Mr. Nufrio’s filings necessary failed for multiple reasons –
including the lack of subject matter jurisdiction – and arguing that Mr. Nufrio
made the filings purely for the purpose of harassing the Defendants.
II.
Legal Analysis
A. Rule 11 Procedural Requirements
Prior to assessing whether sanctions are appropriate, the Court must consider
whether the Rule 11 Movants properly complied with the necessary procedure.
Rule 11(c)(2) contains a safe-harbor provision requiring that parties that are about
to file a Rule 11 motion should first serve in accordance with Federal Rule of Civil
Procedure 5 a copy of that motion on the parties moved against and then wait at
least twenty-one days prior to filing the motion with the court. This creates an
opportunity for the alleged violator to review his claims and withdraw or correct
his filings as appropriate to avoid violating the rule.
Here, the Moving Defendants have complied with the safe-harbor provision.
Counsel for the Moving Defendants served Mr. Nufrio with a copy of their motion
for sanctions via certified mail, return receipt requested, on November 9, 2011.
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The Court retains subject matter jurisdiction to consider the motion for sanctions even though it does not have
subject matter jurisdiction over the merits of the case. Lazorko v. Pennsylvania Hosp., 237 F.3d 242, 247 (3d Cir.
2000).
3
The Moving Defendants did not file their motion for sanctions with the Court until
December 9, 2011, more than twenty-one days after they served Mr. Nufrio with
the copy. Mr. Nufrio did not withdraw his motion in the interim.
B. The Rule 11 Standard
Rule 11 requires that the party submitting a particular pleading make a
reasonable inquiry into both the facts and law supporting that pleading at the time
of filing. Schering Corp. v. Pharmaceuticals, Inc., 889 F.2d 490, 496 (3d Cir.
1989). 3 Sanctions under Rule 11 do not require a showing of bad faith – the party
to be sanctioned need only have engaged in objectively unreasonable conduct in
filing the pleading or in later advocating it. In re Taylor, 655 F.3d 274, 282 (3d Cir.
2011). Of course, filings made in bad faith or for an improper purpose, such as
harassment, delay, or increasing the costs of litigation, also violate Rule 11. See
Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 616 (3d Cir. 1991).
Although the Court does not hold Mr. Nufrio, who is pro se, to the same standard
applicable to an attorney, the obligations of Rule 11 still apply to pro se parties.
See, e.g., Toll v. American Airlines, Inc., 166 F. App’x 633, 637 (3d Cir. 2006)
(affirming award of monetary sanctions under Rule 11 against pro se plaintiff).
Finally, the Court considers the reasonableness of Mr. Nufrio’s action under the
circumstances as they were at the time of his filing. See Ford Motor Co. v. Summit
Motor Prod. Inc., 930 F.2d 277, 289 (3d Cir. 1991).
C. Rule 11 Sanctions
Here, sanctions are appropriate. Normally, a court should not order sanctions
merely because a pro se plaintiff filed a purported federal lawsuit over which no
federal court would actually have subject matter jurisdiction. Subject matter
jurisdiction is technical and of course confusing to an individual who is untrained
in the law. But the Court must consider the filing in the total circumstances of this
case when assessing whether Mr. Nufrio was acting reasonably and without an
improper purpose. And a review of the total circumstances makes clear that not
only did Mr. Nufrio fail to make an objectively reasonable investigation into the
legal and factual basis for his claims, he also filed the action for the improper
purpose of harassing the Defendants.
3
Specifically, Rule 11(b) provides: “By presenting to the court a pleading, written motion, or other paper – whether
by signing, filing, submitting, or later advocating it – 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: (1) it is
not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and] (3) the
factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery . . .”
4
First, the Court should consider the complaint itself. As the Court noted in
its December 5, 2011 order, Mr. Nufrio filed a shotgun-style pleading that was
purposefully vague and as widely encompassing as possible. And, accounting for
fictitious entities, the complaint names over one-hundred parties as defendants with
the common theme appearing to be Ms. Nufrio, any firm or individual who has
ever provided Ms. Nufrio with legal services in lawsuits in which Mr. Nufrio was
opposing his wife, and various state agencies and entities responsible for
adjudicating the prior lawsuits between the parties and enforcing prior judgments
against him. The complaint is replete with vague, qualifying phrases and terms
such as “and/or” for the purpose of casting as wide a net as possible. See, e.g.,
Compl. ¶ 186 (“Drinker Biddle & Reath LLP and [sic] and/or defendants, by an
through continuous actions as herein above described, has in the part and continues
to the present have committed fraud and/or misconduct and/or engaged in unethical
activities and/or engaged in deceptive conduct and/or engaged in criminal acts
and/or mail fraud against Plaintiffs [sic] Marc Nufrio.”). The purported factual
allegations are vague, generalized conclusions that fail to come close to providing
the specificity needed to state proper legal claims putting defendants on notice.
See, e.g., id. ¶ 84 (“On or about November 29, 1999 to present defendants fail to
disclose a material fact to a tribunal when disclosure is necessary to avoid assisting
an illegal, criminal or fraudulent fact by the client.”). Nor do Mr. Nufrio’s
allegations appear to have any basis in fact. For example, Mr. Nufrio makes the
facially ridiculous allegation that unspecified individuals – including some or all of
the Defendants – schemed to extort money from him by requiring him to pay Ms.
Nufrio child support. As evidentiary support for this conspiracy theory, Mr. Nufrio
points to a 1999 court order awarding Ms. Nufrio sole custody of their child,
ordering Mr. Nufrio to pay child support, and further ordering Mr. Nufrio to attend
counseling sessions. How this supports rather than refutes Mr. Nufrio’s allegation
is beyond understanding. It is clear that Mr. Nufrio did not even attempt to make
an objectively reasonable investigation into the legal and factual basis for his
claims. That alone is a violation of Rule 11 justifying the imposition of sanctions.
But the Court must also consider Mr. Nufrio’s history of frivolous litigation.
As delineated above, Mr. Nufrio has been sanctioned numerous times by New
Jersey state tribunals for filing ridiculously expansive lawsuits for the improper
purposes of harassing Ms. Nufrio and other individuals. This context makes clear
that this federal lawsuit is merely one more case in Mr. Nufrio’s long line of
vexatious lawsuits.
Finally, the Court considers Mr. Nufrio’s briefs submitted over the course of
the present litigation, which contain baffling and sometimes misleading statements
regarding the conduct of the Moving Defendants. Two examples will suffice. First,
in a letter dated December 9, 2011, Mr. Nufrio accuses the Moving Defendants of
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having improper ex parte discussions with the Court, including at conferences and
other unspecified proceedings to which Mr. Nufrio was not invited. This is
factually incorrect. The Court has not had any ex parte discussions with any of the
parties or their counsel, and the Court has not held any proceedings of any kind
relating to this case.4 Second, in his January 3, 2011 letter filed in opposition to the
motion for sanctions, Mr. Nufrio accuses the Moving Defendants of perpetrating
fraud on the Court and insists that he never received the November 9, 2011 notice
regarding the Moving Defendants’ intent to file a motion for sanctions. But Mr.
Nufrio’s December 9, 2011 letter provides strong refutation for this assertion: he
attached a copy of the November 9, 2011 notice, which included a proposed
motion, a supporting brief, and a proposed order, to his December 9, 2011 letter.
He even attached a photocopy of the FedEx envelope, addressed to him, in which
the November 9, 2011 notice ostensibly was shipped. How he can now claim that
he was not properly served those papers is beyond this Court’s understanding. And
Mr. Nufrio makes no attempt to explain it. But his conduct in submitting and
composing these briefs seems par for the course – Mr. Nufrio makes whatever
statements and accusations he deems necessary to keep his lawsuit alive without
regard to the objective reasonableness or truth of his utterances.
D. Appropriate Sanctions
In assessing the proper sanctions, the Court should grant sanctions that are
“limited to what suffices to deter repetition of the conduct or comparable conduct
by others similarly situated.” Fed. R. Civ. P. 11(c)(4). Mr. Nufrio has shown in the
past that little deters him from his course, and that only a formal bar will prevent
him from future frivolous filings. Therefore, the Court will order that Mr. Nufrio
may not file any further actions in this District naming any of the same defendants
as are parties to this case without permission from the Court. The Court will also
order Mr. Nufrio to pay $1,000 to the Clerk of the Court as a modest deterrent to
future violations of Rule 11. See Snow Machines, Inc. v. Hedco, Inc., 838 F.2d 718,
725 (3d Cir. 1988)(approving of awarding of sanctions payable to district court
rather than opposing party as “recognize[ing] that deterrence of improper behavior,
not simply compensation of the adversary, is a goal of Rule 11.”). Although he is
proceeding pro se, Mr. Nufrio is not proceeding in forma pauperis, and so the
sanction, while not insubstantial, is appropriate to his financial means. The Court
will also formally advise Mr. Nufrio that attempting to file future frivolous motions
or lawsuits will result in the imposition of additional monetary sanctions, including
reasonable attorney’s fees and costs.
4
Nor was the Court required to hold any. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b).
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III.
Conclusion
For the foregoing reasons, the Court will grant the motion and order the
sanctions described herein. An appropriate order follows. 5
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
5
Mr. Nufrio has also applied for the appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1). Aside from the
fact that Mr. Nufrio has not presented any facts or evidence suggesting he is indigent – he was able to pay the filing
fee for initiating this action – the Court will deny the application due to the obviously frivolous nature of his suit.
See Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (holding that district court must first assess whether
underlying case has arguable merit in fact and law before even considering whether appointment of counsel is
appropriate).
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