CRESCI v. GYESS

Filing 41

OPINION. Signed by Judge Kevin McNulty on 4/8/2019. (sm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PETER J. CRESCI, et al.,

Civ. No. 17-2342 (KM/MAR)

Plaintiff,
V.

OPINION

SUSAN GYESS (aka SUSAN GYESS
GREGORY), et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:

By Opinion (DE 30) and Order (DE 31)1 granted the motion of defendant
Susan Qyss’ to dismiss the amended complaint. Ms. Gyss filed a motion (DE
36) before Magistrate Judge Michael A. Hammer for the imposition of
sanctions. Judge Rammer filed a Report and Recommendation (“R&R”, DE 39)
that the motion be denied. Gyss timely filed an Objection (DE 40) to the R&R.
For the reasons set forth below, the R&R is adopted and affirmed, and the
motion for sanctions is denied.
I.

STANDARD OF REVIEW
The appropriate standard of review turns on whether the Magistrate

Judge’s ruling is deemed dispositive or nondispositive. “[T]he [Federal
Magistrates Act authorizes district courts to refer nondispositive and
dispositive motions to magistrate judges. Unlike a nondispositive motion (such
as a discovery motion), a motion is dispositive if a decision on the motion would
effectively determine a claim or defense of a party.” Equal Employment
Opportunity Comm’n a City

of Long Branch,

866 F.3d 93, 98—99 (3d Cir. 2017).

A district court may refer a nondispositive motion to a
magistrate judge “to hear and determine,” under subparagraph (A)
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As noted in the earlier opinion, she spells her name “Gyss,” not “Gyess.”
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of 636(b)(1). 28 U.S.C. § 636(b)(l)(A). Following a magistrate
judge’s issuance of an order on a nondispositive matter, the parties
may serve and file objections to the order within 14 days of being
served with a copy of the order. Fed. It Civ. P. 72(a). If a party
objects to a magistrate judge’s order regarding a nondispositive
matter, the district court “must consider timely objections and
modify or set aside any part of the order that is clearly erroneous
or is contrary to law.” Id.; 28 U.S.C. § 636(b)(1)(A). This standard
requires the District Court to review findings of fact for clear error
and to review matters of law de novo. Haines v. Liggett Grp. Inc.,
975 F.2d 81, 91 (3d Cir. 1992).
If no party objects to the magistrate judge’s order regarding a
nondispositive matter, the magistrate judge’s order becomes
binding “unless the district court takes some action to overrule it.”
See United Steelworkers of Am. v. N.J. Zinc Co., 828 F.2d 1001,
1005 (3d Cir. 1987). “[AJ party’s failure to object to a magistrate’s
ruling waives the party’s objection.” Id. at 1006.

Under subparagraph (3), a district court may refer a
dispositive motion to a magistrate judge “to conduct hearings,
including evidentiary hearings, and to submit to a judge of the
court proposed findings of fact and recommendations for the
disposition.” 28 U.S.C. § 636(b)(1)(B). The product of a magistrate
judge, following a referral of a dispositive matter, is often called a
“report and recommendation.” Parties “may serve and file specific
written objections to the proposed findings and recommendations”
within 14 days of being served with a copy of the magistrate
judge’s report and recommendation. Fed. R. Civ. P. 72(b)(2). If a
party objects timely to a magistrate judge’s report and
recommendation, the district court must “make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). If a party does
not object timely to a magistrate judge’s report and
recommendation, the party may lose its right to de novo review by
the district court. Nara v. Frank, 488 F.Sd 187, 194 (3d Cir. 2007)
(citing Henderson v. Carlson, 812 F.2d 874, 878—79 (3d Cir.
1987)). However, we have held that because a district court must
take some action for a report and recommendation to become a
final order and because “[t]he authority and the responsibility to
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remains with the judge,”
make an informed, final determination
Mathews v. Weber, 423 U.S. 261, 271, 96 S.Ct. 549, 46 L.Ed.2d
483 (1976), even absent objections to the report and
recommendation, a district court should “afford some level of
review to dispositive legal issues raised by the report,” Henderson,
812 F.2d at 878. We have described this level of review as
“reasoned consideration.” Id. If a party fails to object timely to the
magistrate judge’s report and recommendation, we generally
the district court’s order for plain error. Brightwell v. Lehman, 637
F.3d 187, 193 (3d Cir. 2011); Nara, 488 F.3d at 194. But see Lena
v. Williams, 504 F.3d 357, 363—64 (3d Cir. 2007) (applying de novo
se litigant did not timely object to a
appellate review when a
magistrate judge’s report and recommendation and the magistrate
judge did not “warn[ ] that [the litigant’s] failure to object to the
Magistrate Judge’s report would result in forfeiture of his rights”);
Henderson, 812 F.2d at 878 n.4 (“IWJhen the district court elects
to exercise its power to review a magistrate’s report de novo, a
party’s previous failure to object becomes irrelevant.”).
...

review

EEOC

ii.

City of Long Branch, 866 F.3d at 99—100 (footnotes omitted).

There are easy cases, of course: A summary judgment motion is
dispositive, and a motion to compel answers to interrogatories nondispositive.
A Magistrate Judge’s order denying a motion for sanctions, however, falls
somewhere in between. As to this particular issue, the Third Circuit has not
spoken as to the appropriate standard of review.
The Magistrate Judge took the cautious option of assuming that the
award or denial of sanctions is dispositive and proceeding by way of Report and
Recommendation, Erring on the side of the non-prevailing party (La, Ms. Gyss),
I will do the sane and review the Magistrate Judge’s order de novo. See 28
U.S.C. § 636(b); Fed. R. Civ. P. 72(b); Loc. R. 72.lc(2). I have reviewed the
relevant record (which, for the most part, concerns matters that occurred
before me), and examined anew the Magistrate Judge’s decision. Finding myself
in agreement with Judge Hammer’s well-reasoned R&R, I adopt and affirm it. I
do so largely for the reasons expressed in the R&R, but add some
supplementary analysis.
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II.

DISCUSSION
The defendant, Ms. Gyss, has filed a motion2 to impose sanctions upon

the plaintiff; Mr. Cresci, pursuant to Rule 11, Fed. R. Civ. P.:
By presenting to the court a pleading... an attorney or
unrepresented party3 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;

The Third Circuit long ago adopted a supervisory nile requiring that all motions
requesting Rule 11 sanctions be filed before the entry of a final judgment. See Mary
Ann Pensiero, Inc. v. Lingle, 847 F.2d 90 (3d Cir. 1988). It is true that this motion for
sanctions (DE 36) was filed after I had entered my Opinion and Order dismissing the
amended complaint. Earlier, however, the plaintiff had filed a Rule 11 motion with
respect to the original complaint. (DE 12) The Magistrate Judge terminated that first
motion as moot after the plaintiff filed his amended complaint. (DE 16) Ms. Gyss filed
a second motion for sanctions, this thne in relation to the amended complaint. (IDE 20)
That motion was administratively terminated by the Magistrate Judge without
prejudice, subject to renewal 14 days after my decision on the then-pending motion to
dismiss the amended complaint. (IDE 26) After I dismissed the amended complaint (IDE
30, 31), Ms. Gyss filed this, her third motion for sanctions, for consideration by the
Magistrate Judge.
The Third Circuit’s Lingle rule is supervisory, not jurisdictional; it was adopted
as a means of ensuring “that Rule 11 motions be filed and decided in a timely
manner.” Simmennan v. Corino, 27 F.3d 58, 59 (3d Cir. 1994). Given this procedural
history, I do not think Ms. Gyss has violated the spirit or even the letter of the Lingle
rule. Ms. Gyss did file her motion (twice) in advance of the court’s order dismissing the
case. The Magistrate Judge administratively terminated the second motion and
directed Gyss to refile later; she had little choice but to comply. (She might have done
more, however, to bring to the Magistrate Judge’s attention the potential for a Lingle
problem if the pending motion to dismiss were granted.) The Magistrate Judge’s order
is understandable; he did not know whether the motion to dismiss would succeed (for
that matter, neither did the parties), and he was hardly going to rule on the merits of
the amended complaint in advance of my ruling. The better course, in hindsight,
would have been for the Magistrate Judge to stay the pending motion for sanctions,
rather than administratively terminate it subject to renewal. It is a nice procedural
point, but the bottom-line outcome would have been the same.
2

As noted in my prior opinion, Mr. Cresci was initially represented by his own
law firm, but his status was modified to that of a pro se plaintiff when he was
suspended from the practice of law. See DE 30 n. 1.
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(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;
(3) the factual contentions have evidenfiaxy 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).
“If, after notice and reasonable opportunity to respond, the court
determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule
or is responsible for the violation” Fed. I?. Civ. P. 1 1(c)(1). Such sanctions may
include “nonmonetary directives; an order to pay a penalty into court; or
an order directing payment to the movant of part or all of the reasonable
attorney’s fees and other expenses directly resulting from the violation.” Fed. R.
Civ. p. i 1(c)(4). The interpretive case law, and the “exceptional” circumstances
that warrant (but do not require) the imposition of sanctions, are reviewed in
the R&R at pp. 4—5 (citing, inter cilia, Bensalem Twp.

ii.

Int’l Surplus Lines Ins.

Co., 38 F.3d 1303, 1314 (3d Cir. 1994)).
I do not here review the allegations or repeat the analysis of the
Magistrate Judge, with which I agree, but focus on Ms. Gyss’s claims of error.
First, Ms. Gyss objects to Judge Hammer’s statement that there was no
evidence, or even really a contention, that the complaint was filed for an
“improper purpose.” This language, she says, implies that Judge Hammer must
have held the legally erroneous belief that sanctions could not be imposed
absent a showing of improper motive at the time of filing of a pleading.
(Objection p. 4, citing R&R p. 6)
The objection is not well-taken. The phrase “improper purpose” is taken
directly from Rule 1 1(b)(1) itself, quoted supra. Filing a complaint for an
“improper purpose,” such as for harassment or delay, is one of the three forms
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of litigation conduct prohibited by the quoted subparagraphs of the Rule.
Judge Hammer committed no error when, in the course of denying sanctions,
he noted that one of the three forms of sanctionable conduct was absent.
Relatedly, Ms. Gyss argues that Mr. Cresci did file the complaint for an
improper, vindictive purpose. Gyss notes that Cresci was dismissed from a
municipal position in 2009 and has since filed four actions against the City of
Bayonne or its related entities and officials. She “concedes that she did not
argue” this point before the Magistrate Judge. (Objection p. 8) This Court, she
says, should take additional evidence or remand the matter to the Magistrate
Judge so that he can hear additional evidence of improper purpose. If it does
not do so, she argues, Mr. Cresci is likely to continue to bring baseless actions
against the City of Bayonne and related parties.
I decline to do so. This action asserts a specific grievance relating to the
pursuit of criminal proceedings, later dismissed, against Mr. Cresci. The
existence of other actions does not establish that this action was brought for
some collateral, improper purpose. The other actions make separate claims,
and, at least as described by Ms. Gyss, they seem to have been brought against
officials other than herself. This action is not abusive in the sense of being
duplicative. There is no indication that, in bringing this action, Mr. Cresci
(whether rightly or wrongly) sought any ulterior outcome aside from an award
of damages for a claimed wrong. To the extent his claims lacked a sufficient
factual or legal basis, Judge Hammer dealt with that issue separately, and so

will I, infra.4

Relatedly, Ms. Gyss notes that Mr. Cresci persisted in his claims despite having
the flaws in his original complaint “forcefully brought to [his] attention.” (Objection
(citing Opinion, DE 30 p. 24)) That wake-up call, however, did not come from the
Court as such; Gyss is referring here to her own prior motions to dismiss and for
sanctions, to which Cresci responded by amending his complaint.

4

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Second, Ms. Gyss objects that Judge Hammer failed to make findings as
to whether Mr. Cresci made a reasonable prefihing inquiry as to the underlying
facts, and whether the pleading was warranted by existing law or a good faith
argument for extension of existing law. (Objection pp. 5—8)
As to a “pre-filing inquiry” regarding the facts, I see no need for further
findings. Mr. Cresci, remember, is suing on his own behalf; he did not have to
do any research into the basis for what his “client” was telling him.
With her motion, Ms. Gyss has submitted her own certification. (DE 363) She acknowledges that a criminal complaint for harassment was filed
against Mr. Cresci. The complainant, she properly notes, was not herself but
Cresci’s tenant. Gyss admits, however, that she took it upon herself to pursue
an appeal when Municipal Judge Frank Carpenter made a finding of no
probable cause. She acknowledges that, as Mr. Cresci alleges, the appeal was
taken over by the Hudson County Prosecutor’s Office. (She does not state, but
presumably does not deny, that her husband was Acting County Prosecutor at
the time.) The Municipal Judge’s order was reversed. The matter continued in
Keamy Municipal Court, where it was dismissed.
Many key factual allegations, then, are not contested, although the
implications, both factual and legal, are. Mr. Cresci rarely fails to assign the
most malign and conspiratorial motives. In broad outlines, however, he and
Ms. Gyss tell a similar factual story. Cresci was criminally charged. When the
charge was dismissed for want of probable cause, Gyss stepped in to pursue
the matter on appeal, and the case was reinstated. The criminal case, however,
went nowhere; now in Kearny, it was dismissed. I cannot say that the plaintiffs
grievance, whatever its legal merits, was feigned or fabricated (although, again,
I ultimately found it to be lacking in substance).
As to the amended complaint’s lack of legal viability, I see more of a basis
for Gyss’s argument. In a 24-page Opinion, I detailed the shortcomings of the
amended complaint and dismissed it. (DE 30) Those shortcomings were many
and serious. Mr. Cresci alleged that Ms. Gyss performed her prosecutorial

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functions in a wrongful manner, but did not, 1 found, allege enough to pierce
prosecutorial immunity. The allegations that might conceivably have sufficed, I
found, were phrased too vaguely. The lack of any physical seizure of Cresci
doomed the Fourth Amendment claims. The claim of First Amendment
retaliation fell outside the two-year statute of limitations. State law claims I
dismissed as a matter of discretion under 28 U.S.C.

§ 1367, because the

federal claims were not substantial.
I decline to exercise my discretion to impose sanctions based on the
claims’ lack of legal foundation. See generally Bnibaker Kitchens, Inc. v. Brown,
280 F. App’x 174, 185 (3d

Cir. 2008) (“It is well-settled that the test for

determining whether Rule 11 sanctions should be imposed is one of
reasonableness under the circumstances, the determination of which falls
within the sound discretion of the District Court.”)(quoting Gary v. Braddock
Cemetery, 517 F.3d 195, 201 n. 6 (3d Cir. 2008)). Sanctions are not warranted
merely because claims are weak. Nor would I impose sanctions merely because
a party’s allegations were ineptly or confusingly presented. Indeed, to grant
sanctions on this basis risks chilling legitimate advocacy. (See R&R pp. 6—8,
and cases cited.) Here, for example, I would see the need to grant the plaintiff
some latitude to argue that a prosecutor’s alleged “steering” of an appeal to her
husband’s office exceeded the prosecutorial role, even though that argument
did not succeed.
III.

CONCLUSION
For the reasons stated by Judge Hammer and in this Opinion, the R&R

(DE 39) is adopted and affirmed. The defendant’s motion for imposition of
sanctions (DE 36) and her objection to the R&R (DE 40) are denied. An
appropriate order accompanies this Opinion.
Dated: April 8, 2019

KEVIN MCN LTY, U.S.D.J.

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