Smith v. Westchester County Department of Corrections et al
OPINION AND ORDER re: 133 MOTION for Sanctions Against Michael A. Deem, filed by Neil Gottlob. For the foregoing reasons, I hereby ORDER that the above sanctions be imposed against Michael A. Deem. Deem may be subject to further sanctions if he is not compliant with the sanctions imposed herein. The Clerk of the Court is directed to close this motion (Docket Entry # 133). (Signed by Judge Shira A. Scheindlin on 9/16/2013) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PATRICK R. SMITH,
OPINION AND ORDER
07 Civ. 1803 (SAS)
- againstWESTCHESTER COUNTY
DEPARTMENT OF CORRECTIONS,
WARDEN AMICCUCI; CORRECTION
OFFICER GOTTLOB; CORRECTION
OFFICER RENNALLS # 634;
EMERGENCY RESPONSE TEAM,
SERGEANT JOHN DOE,
~l) t uI l.~
-------------------------------------------------------)( .::~: .-:-~~~---
SHIRA A. SCHEINDLIN, U.S.D.J.:
On February 12,2012, this Court issued an Opinion and Order (the
"February 12th Order") denying plaintiffs request to file a Second Amended
Complaint in which he would have added Correction Officer ("CO") Derrick
Holmes as a defendant.! Plaintiff sought to substitute CO Holmes for defendant
CO Neil Gottlob after it became apparent from a videotape of the underlying
incident that CO Gottlob could not have possibly inflicted the injuries plaintiff
See Smith v. Westchester County Dep't a/Carr., No. 07 Civ. 1803,
2012 WL 527222 (S.D.N.Y. Feb. 15,2012).
claimed he sustained.
On February 22,2012, plaintiff moved for reconsideration of the
February 12th Order pursuant to Local Civil Rule 6.3. 2 Plaintiffs motion for
reconsideration was denied in a Memorandum Opinion and Order dated April 9,
2012.3 In denying the motion for reconsideration, the Court stated:
This Court fails to see the connection between the
documents at issue and whether Holmes received notice of
this action within the 120-day period provided for in
Federal Rule of Civil Procedure 4(m). Without a link
between the two, there is no basis in which to draw a
negative inference against Holmes, much less the negative
inference that he timely received notice of the instant
action. Even assuming there was spoliation and a failure to
produce, the appropriate sanction is not granting plaintiff
leave to amend to add an entirely new defendant. In sum,
plaintiff has not pointed to any controlling fact or decision
overlooked by the Court which would cause it to reconsider
the Opinion and Order. 4
Plaintiff appealed the denial of reconsideration to the Second Circuit which
affirmed this Court, finding all of Smith's arguments to be without merit:
The district court was also within its discretion in denying
Smith leave to amend the complaint to add Corrections
Officer Holmes as a defendant. The district court did not
See Docket Entries 104 through 106.
See Smith v. Westchester County Dep 't ojCorr., No. 07 Civ. 1803,
2012 WL 1174663 (S.D.N.Y. Apr. 9, 2012).
Id. at *2.
err in distinguishing "John Doe" cases in which plaintiffs
broadcast their continued quest to identify the party who
allegedly wronged them. Although knowledge of the
lawsuit can be imputed to Holmes's attorneys, they could
not reasonably have known that Smith intended to sue
Holmes. See Gleason v. McBride, 869 F .2d 688, 693 (2d
Cir. 1989) ("In order to support an argument that
knowledge of the pendency of a lawsuit may be imputed to
a defendant or set of defendants because they have the same
attorney( s), there must be some showing that the attorney( s)
knew that the additional defendants would be added to the
existing suit."). Smith litigated vigorously against the
initial defendants, lost, and now seeks to try his luck
against someone new; the district court did not abuse its
discretion in denying him this opportunity.5
Defendant CO Gottlob, former Associate County Attorney Shannon S.
Brady, and the Office of the Westchester County Attorney now seek sanctions
against plaintiffs attorney, Michael A. Deem, on the ground that the motion for
reconsideration violated Federal Rule of Civil Procedure 11 ("Rule 11 ").
Sanctions are also sought under the Court's inherent authority to regulate the
conduct of attorneys appearing before it. For the following reasons, the sanctions
motion is granted.
Plaintiff's Motion for Reconsideration
On February 17,2011, this Court held a conference with Deem and
Mandate dated June 10,2013, at 3-4.
Brady. At that conference, Brady stated that she has been "very diligent in
providing everything to [plaintiffs counsel's] client."6 She further stated that
plaintiff had been provided "with all of the reports and the identification of
everyone."7 At a conference held on February 21,2012, Deem demanded that
Brady produce a Jail Control Logbook and Jail Ring Report for December 5,2006,
the date of the alleged incident. 8 Brady stated that the Jail Control Logbook could
not be produced because it was destroyed pursuant to a three-year retention policy.9
She further stated that she would produce the Jail Ring Report for December 5,
Coupling the recent emergence of these two documents (the Jail Ring
Report and Jail Control Logbook) with Brady's earlier representation that all
relevant discovery had been produced, Deem leapt to the conclusion that Brady
admitted to the intentional/reckless spoliation of relevant documents as well as the
2122/12 Declaration in Support of Plaintiffs Motion to Reconsider the
Opinion and Order Dated February 15,2012, Ex. 2 at 1.
Id., Ex. 2 at 2.
These two documents reflect what time the code for the Emergency
Response Team ("ERT") was called.
See Transcript of 2121112 Conference at 3-4.
See id. at 3.
failure to produce additional relevant documents. I I Specifically, Deem stated:
Defense counsel's recent admission to the intentional and
reckless spoliation of relevant evidence and failure to
produce relevant documents, in addition to the failure or
refusal of the defense to advise the plaintiff or his counsel
of such spoliation, repeated misstatement to the Court that
all documents were provided to plaintiff, and purposeful
sluggishness of the defense to disclose or produce relevant
documents warrant the drawing of a negative inference
against ... Holmes, the defendant to be added, and defense
counsel. The negative inference to be drawn is that Holmes
and defense counsel received notice of this action within
the [R]ule 4(m) period and knew that Holmes would have
been named but for plaintiffs mistake. 12
This Court failed to see the connection between the documents at
issue and whether CO Holmes received timely notice of the instant action. There
simply was no basis from which to draw the negative inference that CO Holmes
timely received notice of this action. In sum, plaintiff failed to point to any
controlling fact or decision overlooked by the Court which would cause it to
reconsider the February 12th Order.
Brady admitted that the Jail Control Logbook was destroyed after its
three-year retention period expired. Brady did not, however, admit that the
destruction of the Jail Control Logbook constituted spoliation. See Transcript of
2/21112 Conference at 3-4.
Memorandum of Law in Support of Plaintiff s Motion to Reconsider
the Opinion and Order Dated February 15, 2012, at 2-3 (citation omitted).
Repetition of Spurious Allegations by Deem
If the disparaging comments in the Reconsideration Memorandum
were not enough, Deem has repeated similar allegations in at least two other
lawsuits. On May 6,2013, Deem sent a letter to Magistrate Judge Ronald L. Ellis
in the case of Nash v. Kressman,13 which states:
Moreover, plaintiffs discovery demands are not overly
broad or burdensome, in light of Westchester County's
conduct in litigating several other cases involving similar
claims by former inmates of the Westchester County Jail
("WCJ"). Rather, expedited discovery should be granted to
prevent the destruction of highly relevant documents.
For example, on February 17, 2011, in Smith v. Gottlob, 07
cv-1803 (SAS) (RLE) (S.D.N.Y.), Assoc. County Attorney
Shannon Brady, stated to the Court, "I have litigated this
case with his [pro se] client for almost four years, your
Honor, and I have been very diligent in providing
everything to his client (Trans., p. 7, 1. 16)[.] Yet, the
County defendants in that case never disclosed the identity
of all the members of the Emergency Response Team in an
effort to take advantage of plaintiff mistakenly naming the
wrong individual. I'm certain the Court recalls that Mr.
Smith alleged his ankle was intentionally twisted with such
force that his Achilles tendon was ripped.
Also, the County defendants intentionally withheld a video
of the underlying incident in that case until all depositions
had been conducted to prevent Mr. Smith from discovering
his mistake. Only after Mr. Smith retained counsel and re
deposed Sgt. Delgrosso, WCJ, with the video was Mr.
Smith's assailant identified.
11 Civ. 7327 (LTS) (RLE) (S.D.N.Y. Oct. 12,2011).
And, on February 21,2012, Ms. Brady conceded during a
Court conference that one relevant document was never
produced and another was unable to be produced because
it had not been preserved. On appeal, the County
defendants never argued that they produced or preserved
the relevant documents. Rather, they argued that plaintiff
was not prejudiced.
The argument is incredulous
considering there was significant litigation regarding the
actions of "first responders' prior to ERT's arrival.
Clearly, in just these few examples Westchester County
defendants have proven themselves to be unwilling to
follow the rules of discovery, unwilling to produce relevant
information and documents, and unwilling to preserve
relevant documents. But, they are willing to make what
appears to be affirmative misrepresentations to the Court,
In addition, in a letter dated June 1, 2013, to the Honorable Cathy Seibel, Deem made
the following statement in the case of Michel v. Goldberg: 15
Another issue that Mr. Nash, inter alia, is pursuing is the
apparent trend throughout several cases where relevant
documents are "unavailable" or spoliation has been proven
by the County defendants' own records and statements.
The missing documents include, inter alia, several official
log books and surveillance video. .. Also, the County is
mandated by state regulations to keep and maintain the
missing log books. Yet, the County cannot account for
5/6113 Letter from Deem to Judge Ellis, Ex. 3 to the Declaration of
Justin R. Adin in Support of Motion for Sanctions ("Adin Decl."), at 2-3, 4 (italics
12 Civ. 85 (CS) (PED) (S.D.N.Y. Jan. 5,2012).
Although Deem does not specify the cases to which he is referring, these
allegations are substantially identical to the allegations raised in the letter to Judge
Finally, during a telephone conference held on June 5, 2013, I told the
parties the following with regard to Deem's repeated allegations of Brady's alleged
Obviously, if I thought there was spoliation or intentional
destruction, I would have allowed the amended pleading.
Similarly, if the Court of Appeals had thought that there
was, they would have reversed me.
So I am still saying to you [Deem] that if you could give up
referring to the alleged spoliation in this instance, that
might close the matter out.
What you discover in other matters is up to you. But this
one seems to me dead as a doornail, and is just poor grace
and poor judgment to still be referring to it when it hasn't
worked in two courts, one of which is the Court of
In debating whether to stop repeating the disparaging allegations against Brady,
and thereby settle the sanctions issue without a formal motion, Deem remarked that
6/1/13 Letter from Deem to Judge Seibel, Ex. 4 to the Adin
Declaration, at 2. Although this letter was sent in the case of Michel v. Goldberg,
Deem raises issues in the case of Nash v. Kressman for purposes of comparison.
Transcript of 6/5/13 Teleconference at 6.
"if [Brady] says that the documents were missing or, no, we didn't destroy them or,
yes, we did destroy them pursuant to you, know, the retention policy, etc., then I
believe I can stand or continue to refer to these allegations, even though I lost at
the appellate court.,,18
The purpose of Rule 11 is '''the deterrence of baseless filings and the
curbing of abuses. ",19 Filings that have a complete lack of a factual and legal basis
have been found "'to harass, cause unnecessary delay, or needlessly increase the
cost of litigation[.] ",20 Sanctions should be imposed "where it is patently clear that
a claim has absolutely no chance of success."21 Thus, Rule 11 sanctions are
appropriate if: the legal contentions contained in a writing are frivolous; or the
factual contentions therein do not have evidentiary support. 22 In determining if
Id. at 8.
On Time Aviation, Inc. v. Bombardier Capital, Inc., 354 Fed. App'x
448, 452 (2d Cir. 2009) (quoting Caisse Nationale de Credit Agricole-CNCA, NY.
Branch v. Valcorp, Inc., 28 F.3d 259,266 (2d Cir. 1994)).
Lawrence v. Richman Group ofCT LLC, 620 F.3d 153, 156 (2d Cir.
2010) (quoting Rule 11(b)).
Ahdelhamidv. Altria Group, Inc., 515 F. Supp. 2d 384,392 (S.D.N.Y.
2007) (quotation marks and citation omitted).
See Rule 11 (b)(2)-(3).
conduct is sanctionable under Rule 11, courts apply an objective standard of
reasonableness. 23 In sum, litigants who show contempt for the judicial system,
harass defendants, and/or cause courts and litigants to waste resources may be
sanctioned under Rule 11.
Under a court's inherent authority, sanctions may be imposed where
an attorney has "acted in bad faith, vexatiously, wantonly, or for oppressive
reasons."24 A court's inherent authority to impose sanctions must be exercised
with discretion as must the decision of which sanction to impose. 25 Pursuant to a
court's inherent authority, sanctions may be imposed for vexatious behavior "when
it is harassing or annoying, regardless of whether it is intended to be SO."26
Sanctions may also be justified for "patently frivolous legal argument and
egregious conduct," especially where an attorney allows his "antagonism" to
See DeBartolo Group, L.P. v. Richard E. Jacobs Group, Inc., 186
F.3d 157, 166 (2d Cir. 1999).
United States v. International Bhd. of Teamsters, 948 F.2d 1338, 1345
(2d Cir. 1991) (quotation marks and citation omitted). Accord Ransmeier v.
Mariani, Nos. 11-175-cv, 11-640-cv, 2013 WL 1981939, at *2 (2d Cir. May 15,
See Chambers v. NASCa, Inc., 501 U.S. 32,44-45 (l991).
Cruz v. Savage, 896 F.2d 626, 632 (lst Cir. 1990).
"undemline his legal judgment."27 "Frivolous arguments with regard to a motion
particularly where that frivolousness is coupled with inappropriate conduct that
suggests the attorney was motivated by bad faith - may also merit the imposition
of sanctions by this Court.,,28 Sanctions may be imposed under a court's inherent
authority where an attorney levels accusations of impropriety in bad faith?9
Spoliation of Evidence
The controlling case in this Circuit regarding the spoliation of
evidence is Residential Funding Corp. v. DeGeorge Financial Corp. 30
[AJ party seeking an adverse inference instruction based on
the destruction of evidence must establish (I) that the party
having control over the evidence had an obligation to
preserve it at the time it was destroyed; (2) that the records
were destroyed with a culpable state of mind; and (3) that
the destroyed evidence was relevant to the party's claim or
defense such that a reasonable trier of fact could find that
it would support that claim or defense. 31
Rule 37 of the Federal Rules of Civil Procedure authorizes a wide range of
Ransmeier, 2013 WL 1981939, at *3.
See Gallop v. Cheney, 660 F.3d 580,584 (2d Cir. 2011) (per curiam),
vacated on other grounds, 667 F.3d 226,231 (2d Cir. 2011).
306 F.3d 99 (2d Cir. 2002).
[d. at 107.
sanctions for discovery abuses. If the district court determines that a party
wrongfully withheld or destroyed evidence, it may tell the jury "those facts and
nothing more; or it might [add] that the jury could, but need not, draw inferences
against [the spoliators] based on those facts; or ... that the jury should draw
adverse inferences against [the spoliators] based on those facts; or that the jury
should render a verdict for the [innocent party].,,32
In the motion for reconsideration, Deem argued that a negative
inference should be drawn against CO Holmes because of alleged discovery
violations including, inter alia, the spoliation of evidence, namely, the Jail Control
Logbook. In addition to the disconnect between the relief requested and the
alleged misconduct by defense counsel, there was no evidence of spoliation or any
other discovery violations. Thus, the motion for reconsideration violated Rule 11
as the legal arguments were frivolous and the factual contentions were
With regard to spoliation, Deem failed to satisfy any of the three
Residential Funding requirements. The first element
the duty to preserve - only
Mali v. Federal Ins. Co., 720 F.3d 387, 392-93 (2d Cir. 2013).
extends to what the party knew, or should have known, that is: relevant to the
action; reasonably calculated to lead to the discovery of admissible evidence;
reasonably likely to be requested during discovery; or the subject of a pending
discovery request. 33 Here, Deem did not, and could not, show that there was a duty
to preserve the Jail Control Logbook. At no time prior to Deem's appearance in
this action was the timing of the ERT code ever at issue. Even after Deem
appeared and amended the Complaint, the time the ERT code was called was still
not a disputed factual issue in this action.
The exact time the ERT code was called was not relevant to this
action regardless of plaintiff's theory of the case. Whether plaintiff alleged that he
was assaulted before, while, or after the ERT arrived, the fact that the code was
called at 7:45, 7:50, or some other time would not lead to discoverable information.
Nor did Deem assert how the Jail Control Logbook would have assisted plaintiff in
identifying CO Holmes as his assailant or otherwise substantiate any part of his
claim. Furthermore, prior to his deposition, plaintiff was provided with the ERT
logbook showing what time the code was called. And there was a statement at the
end of the ERT video indicating what time the code was called. Finally, the Jail
Ring Report, which is an electronic record of when the ERT code was called, was
See In re Pfizer Inc. Sec. Litig., 288 F.R.D. 297, 313 (S.D.N.Y. 2013).
provided to Deem upon his request. Plaintiff failed to demonstrate the necessity of
the Jail Control Logbook given that the information contained therein was
previously and repeatedly provided to him. Accordingly, defendants had no duty
to preserve the Jail Control Logbook.
The second element, culpability, requires a showing of at least
negligence. But without a duty to preserve, Deem could not possibly demonstrate
any level of culpability required to justify an adverse inference, much less that the
spoliation was "intentional or reckless" as he alleged. With regard to the third
element, relevance, the "burden falls on the prejudiced party to produce some
evidence suggesting that a document or documents relevant to substantiating his
claim would have been included among the destroyed files."34 In his motion for
reconsideration, Deem failed to produce any evidence that the Jail Control
Logbook would have substantiated plaintiffs claim. Because plaintiff failed to
satisfy all three Residential Funding elements, there can be no claim of spoliation
in this case. Accordingly, Deem's statement that defense counsel admitted to the
spoliation of relevant evidence has no factual support. 35 And without factual
Byrnie v. Town ofCromwell, Bd. ofEduc., 243 F.3d 93, 108 (2d Cir.
200 I) (quotation marks and citation omitted).
In addition to the spoliation claim, Deem alleged that defense counsel
made "repeated misstatements" to the Court and displayed "purposeful
sluggishness" in producing documents. Deem provides no factual or legal support
support, that statement violates Rule 11.
Deem's reconsideration papers levied serious allegations of unethical
conduct against Brady, without factual and legal support and any meaningful
discussion or analysis. Given this utter lack of legal and factual analysis, it would
be objectively unreasonable to think that the motion for reconsideration could be
successful. Furthermore, Deem's papers did not even comport with the legal
standard for reconsideration as set forth in his own Memorandum.
The purpose of Rule 11 "is to ensure that an attorney will 'stop, think
and investigate' before filing 'baseless papers. ",36 Clearly, Deem failed to stop,
think and investigate before filing his baseless reconsideration papers. Instead, he
filed a motion based on unsupported, conc1usory, and incendiary allegations of
misconduct by Brady. Deem's conduct "therefore exceeded the bounds of conduct
acceptable to members of the bar of this court as well as those incorporated in Fed.
for these conc1usory statements. Furthermore, these statements are belied by the
record. At a conference on May 6, 2011, I stated that "[t]here is nothing that I find
that Ms. Brady has done that resembles the word lies or misrepresentations at all."
Transcript of 5/6/11 Conference ("5/6/11 Tr.") at 2. Nowhere does Deem explain
why my assessment of Brady's conduct was incorrect.
Zlotnick v. Hubbard, 572 F. Supp. 2d 258,272 (N.D.N.Y. 2008)
(quoting Cooter & Gel! v. Hartmax Corp., 494 U.S. 384, 398 (1990)).
R. Civ. P. 11.,,37
Even if Deem's motion for reconsideration did not violate Rule 11, he
would still be subject to sanctions under this Court's inherent authority. Deem's
unsupported allegations of misconduct by Brady were clearly antagonistic,
egregious and made in bad faith. Allegations of "intentional or reckless spoliation"
and "repeated misstatements to the Court" are accusations of unethical conduct in
derogation of Brady's professional integrity. When presented as facts, as Deem
did here, such allegations clearly rise to the level of sanctionable conduct. 38
Deem's bad faith permeated this litigation beyond his motion for
reconsideration. For example, in a letter dated May 3, 2011, Deem accused Brady
of making "grave misrepresentations" and "not dealing at arms' length with Mr.
Smith while he was represented pro se."39 In that same letter, Deem stated:
Levine v. F.D.I.C., 2 F.3d 476,479 (2d Cir. 1993) (quotation marks
and citation omitted).
Such allegations may also be actionable should Brady bring a libel
suit against Deem for impugning her professionalism. See Trump v. Chicago
Tribune Co., 616 F. Supp. 1434, 1435-36 (S.D.N.Y. 1985) ("accusations of ...
unethical conduct, or derogation of professional integrity in tenus subject to factual
verification" can be libelous when presented as statements of purported fact).
5/3/11 Letter from Deem to this Court, Ex. 2 to the Adin Decl, at 1, 3.
Plaintiff respectfully submits that the defendants' omission
of all members of the ERT in their Rule 26(a) Disclosure,
the submission of a doctored video, and the submission of
falsified affidavits were part of a scheme designed by
Westchester County and carried out by Ms. Brady to
mislead the Court into believing that the ERT only
consisted of three or four members, rather than eight, in
order to hoodwink the Court into dismissing plaintiff's
meritorious claims. 40
At a conference held shortly thereafter, I stated:
I think, Mr. Deem, that of the two, you are the responsible
one for ratcheting up the personal attacks, I do. There is
nothing that Ms. Brady has done that resembles the word
lies or misrepresentations at al1. 41
At the end of the conference, I asked "Mr. Deem, in particular, to ratchet down the
personal attacks. It is not welcome in this Court."42 In continuing to claim that
Brady made misstatements to the Court after I found none, Deem allowed his
antagonism toward Brady to cloud his legal judgment. Deem's unyielding
determination to cast Brady in a negative light, despite my repeated admonitions to
ratchet down the personal attacks, demonstrates his continued bad faith in litigating
this action. On this basis alone, Deem is subject to sanctions under the Court's
Id. at 4.
5/6111 Tr. at 2.
Id. at 39.
Defendant seeks a panoply of sanctions, most of which I find
appropriate. 43 First, Deem is permanently enjoined from raising any allegation,
statement, fact, or argument regarding Brady's alleged misconduct and/or the
discovery issues in this action in any other action or proceeding before any court,
agency, arbitrator, tribunal, or body, whether currently pending or to be brought in
the future. Second, Deem shall submit a letter to Magistrate Judge Ellis in the
matter of Nash v. Kressman, 11 Civ. 7327, and Judge Seibel, in the matter of
Michel v. Goldberg, 12 Civ. 85, retracting any allegations, statements, facts, or
arguments regarding Brady's alleged misconduct and/or the discovery issues in
this action. Deem is instructed to attach a copy of this Opinion and Order to such
letters. Third, plaintiffs motion for reconsideration is hereby stricken. The Clerk
of the Court is directed to remove these documents from the docket (Docket
Entries 104 through 106). Finally, defendant CO Gottlob is awarded attorneys'
fees and costs related to the making of the instant motion, to be imposed against
Deem. Defendant CO Gottlob is directed to submit a bill of costs and an invoice
Out of all the requested relief, the only requested item I find
unnecessary is the issuance and docketing of a letter of apology from Deem to
Brady. This Opinion and Order is, in essence, a public censure of Deem's conduct
as well as an exoneration of Brady. Thus, a personal letter of apology is not
needed to accomplish the stated goals.
for attorneys' fees, with supporting documentation, to this Court forthwith.
For the foregoing reasons, I hereby ORDER that the above sanctions
be imposed against Michael A. Deem. Deem may be subject to further sanctions if
he is not compliant with the sanctions imposed herein. The Clerk of the Court is
directed to close this motion (Docket Entry # 133).
New York, New York
September 16, 2013
Michael A. Deem, Esq.
Michael A. Deem, P.L.L.C.
95 Croton Avenue, Suite 37-t
Ossining, NY 10562
Justin R. Adin
Westchester County Attorney's Office
148 Martine Avenue, Room 600
White Plains, NY 10601
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