Anne Bryant v. AB Droits Audiovisuels et al

Filing 188

OPINION AND ORDER re: 115 MOTION for Sanctions filed by Anne Bryant, 122 MOTION for Sanctions filed by Anne Bryant. Because plaintiff has offered no evidence that Phares has made an argument or offered evidence that was entirely meritle ss or that Phares acted in bad faith, plaintiff's motion for sanctions is denied. Accordingly, for all the foregoing reasons, plaintiff's motion for sanctions against Gloria C. Phares, Esq. pursuant to 28 U.S.C. § 1927 is denied in all respects. The Clerk of the Court is requested to mark Docket Items 115 and 122 closed. (Signed by Magistrate Judge Henry B. Pitman on 6/2/2017) Copies Mailed By Chambers. (ras)

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USDCSDNY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ANNE BRYANT,
Plaintiff,
-against-

07 Civ. 6395

(PAC) (HBP)

OPINION
AND ORDER

AB DROIT AUDIOVISUELS,

et al.,
Defendants.

-----------------------------------x
PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff has moved pursuant to 28 U.S.C.

§

1927 for

sanctions against Gloria C. Phares, Esq., counsel for Sunbow
Productions, Inc. and several other defendants in this action 1
("the Sunbow Defendants")
11, 2016

(see Motion for Sanctions, dated Jan.

(Docket Item ("D.I. ") 115)

("Pl. Sanctions Motion"); see

also Motion for Sanctions, dated Jan. 11, 2016 (D.I. 122) 2 )
Plaintiff argues that Phares should be sanctioned because she has

These are Sunbow Productions Inc., Loonland UK Ltd.,
Metrodome Group P.L.C., Rhino Entertainment Co., Rhino Home Video
Core, Sony/ATV Songs L.L.C. (BMI), Sony/ATV Tunes L.L.C. (ASCAP),
Sony BMG Music Entertainment Inc., TV Loonland Home Entertainment
Ltd. and Warner Music Group.
1

2

Through apparent oversight, plaintiff's motion for
sanctions was filed twice, as Docket Items 115 and 122.

submitted an allegedly fraudulent contract in support of a motion
to dismiss the complaint that the Sunbow Defendants filed in 2008
(Pl. Sanctions Motion at 2, citing Declaration of Gloria

c.

Phares in Supp. of Sunbow Defendants' Motion to Dismiss Under
Fed.R.Civ.P. 12(b) (6), dated Jan. 4, 2008 (D.I. 32), Ex. 18).

By

her motion, plaintiff seeks denial of the Sunbow Defendants'
motion to dismiss, an Order precluding Phares from relying on the
allegedly fraudulent agreement in subsequent filings and an award
of attorney's fees incurred in responding to the dismissal motion
(Pl. Sanctions Motion at 10-11).
To the extent plaintiff is seeking relief other than
attorney's fees, her sanctions motion is now moot.

The 2008

motion to dismiss was denied on March 30, 2009 and is no longer
pending (Order, dated Mar. 30, 2009 (D.I. 67)).

Earlier this

year, the Honorable Paul A. Crotty, United States District Judge,
"so ordered" plaintiff's requests to dismiss voluntarily each of
the Sunbow Defendants from this action without prejudice (see
Orders, dated March 21, 2017, March 22, 2017 and May 12, 2017
(D.I. 152, 155, 183)).

In light of Judge Crotty's recent Orders,

the second form of relief sought in plaintiff's motion
Order precluding the Sunbow Defendants from relying on the

2

an

allegedly fraudulent agreement -- is also moot because no claims
against the Sunbow Defendants remain. 3
The third form of relief sought by plaintiff -- attorney's fees

stands on a different footing.

Because they are

collateral to the merits of a case, a motion for sanctions
Cooter & Gell v. Hartmarx

survives the dismissal of an action.

Corp., 496 U.S. 384, 395 (1990); accord DiPaolo v. Moran, 277 F.
Supp. 2d 528, 532 (E.D. Pa. 2003).

Thus, plaintiff's sanctions

motions require resolution notwithstanding the dismissal of the
claims against the Sunbow Defendants. 4
3

The single Sunbow Defendant who was still in the case in
May of this year filed a second motion to dismiss on May 8, 2017
(Notice of Supplemental Motion to Dismiss un Fed.R.Civ.P.
12(b) (6), dated May 8, 2017 (D.I. 169)). Judge Crotty denied
this motion as moot on May 12, 2017 (see Text Only Order, dated
May 12, 2017 (D.I. 184)).
In any event, the 2017 motion to
dismiss did not rely on the allegedly fraudulent document that is
the basis of plaintiff's sanctions motion.
4

Although there is a substantial body of authority that a
pro se litigant cannot recover attorney's fees, Kay v. Ehrler,
499 U.S. 432, 435 (1991) ("The Circuits are in agreement .
on
the proposition that a pro se litigant who is not a lawyer is not
entitled to attorney's fees." (emphasis in original));
Pietrangelo v. United States Army, 568 F.3d 341, 344 (2d Cir.
2009) ("Although Kay was decided pursuant to Section 1988, its
reasoning is not confined to that statute."); Massengale v. Ray,
267 F.3d 1298, 1302-03 (11th Cir. 2001) (pro se attorney cannot
recover fees as a sanction under Rule 11 because he has incurred
no fees), plaintiff was represented by counsel at the time Sunbow
Defendants made the dismissal motion in issue, and counsel filed
papers on behalf of plaintiff in opposition to the Sunbow
Defendants' motion.
Thus, the general rule that a pro se
litigant cannot recover attorney's fees is not applicable to the
(continued ... )
3

II.

Facts

Plaintiff is a composer who has written music for
defendants (Complaint, dated July 13, 2007 (D.I. 1)
~

1).

("Complaint")

In 2002, plaintiff filed a case against Sunbow Produc-

tions, Inc.

("Sunbow") in the Supreme Court of the State of New

York, Rockland County, seeking damages for unpaid royalties for
musical compositions ("State Court Action")

(see Declaration of

Christopher M. Strong, Esq., dated Jan. 28, 2016 ("Strong Deel.")
(D.I. 117), Ex. B (Bryant v. Broadcast Music, Inc., Index Nos.
5192/00, 2821/02, Decision After Trial (Sup. Ct. Rockland Cty.
July 2, 2014)
at 3) .

(Garvey, J.)

("State Court Post-Trial Decision"))

In the State Court Action, plaintiff initially alleged

claims for unjust enrichment and constructive trust based on
alleged oral agreements with Sunbow (State Court Post-Trial
Decision at 3).

However, in 2004, Sunbow, represented by Phares

in the State Court Action, discovered a copy of the "Jem Agreement," an apparent contract under which Sunbow hired plaintiff to
compose songs for television shows produced by Sunbow (State
Court Post-Trial Decision at 3-4) . 5
4

When Sunbow first produced

continued)
extent plaintiff actually incurred fees in opposing the Sunbow
Defendants' motion.
5

( •••

Plaintif f asserts that she did not sign the Jem Agreement
(continued ... )
4

the Jem Agreement in the State Court Action, plaintiff denied
that she had signed it, and the justice presiding over the case
held a hearing on that issue (State Court Post-Trial Decision at
3-4).

The justice in the State Court Action later concluded that

plaintiff had, in fact, signed the Jem Agreement (State Court
Post-Trial Decision at 3-4).

Plaintiff and Sunbow thereafter

agreed that their relationship was governed by the Jem Agreement.
In fact, plaintiff affirmatively asserted that the Jem Agreement
was valid, claiming that Sunbow was liable to plaintiff because
it had breached the Jem Agreement (State Court Post-Trial Decision at 4) .

The State Court Action ultimately resulted in a

finding that plaintiff has not proven that Sunbow breached the
Jem Agreement that was affirmed by the Appellate Division.
Bryant v. Broadcast Music, Inc., 143 A.D.3d 934, 935, 39 N.Y.S.3d
520, 521 (2d Dep't 2016).

The Court of Appeals of New York

recently denied plaintiff's motion for leave to appeal the
appellate court's decision.

See Bryant v. Broadcast Music, Inc.,

2017-293, 2017 N.Y. Slip Op. 73077 (Table), 2017 WL 1842774 (May
9, 2017).

5

( • • • continued)
in her individual capacity but as a partner in a company called
"Kinder & Bryant, Ltd." (Pl. Sanctions Motion at 5; Reply to the
Opposition by Def. Sunbow Productions Inc. and Gloria C. Phares
to Plaintiff's Motion for Sanctions, dated Feb. 8, 2016 (D.I.
119) ("Pl. Reply Mem. ") at 2-3).

5

Plaintiff commenced this action on July 13, 2007,
alleging that she was a "signatory" to the Jem Agreement, and
that Sunbow breached the agreement by failing to pay her royalties for musical compositions; plaintiff expressly relied on the
Jem Agreement and incorporated it by reference in her complaint
(Complaint,

~~ 12,

79-87).

Thus, from the outset of the case,

plaintiff affirmatively relied on the Jem Agreement and made it
part of the case.

Notwithstanding plaintiff's reliance on the

Jem Agreement, she now asserts that in August 2012 an unidentified employee of the Internal Revenue Service ("IRS") informed
her that "'Kinder & Bryant, Ltd.' was never formed" and that
"'Kinder & Bryant, Ltd' never existed"
5) . 6

(Pl. Sanctions Motion at

Plaintiff argues that because she signed the Jem Agreement

as a member of a company that did not exist -- "Kinder & Bryant,
Ltd." -- the Jem Agreement is fraudulent and unenforceable (Pl.
Sanctions Motion at 5 ("the JEM Agreement is a nullity, because
the non-entity,

'Kinder & Bryant Ltd,' did not have the capacity

to act for Plaintiff Anne Bryant"); Pl. Reply Mem. at 2 (same)).

0n September 28, 2012, plaintiff wrote a letter to the
justice presiding over the State Court Action, copying Sunbow and
the other defendants, stating that she had learned from an IRS
employee that "Kinder & Bryant, Ltd. was never a corporation."
Plaintiff also stated that "I believe that sunbow's attorneys are
entitled to be advised of this information that I have learned."
(Strong Deel., Ex. A (Letter from Anne Bryant to Hon. Margaret
Garvey, J.S.C., dated Sept. 28, 2012)).
6

6

Plaintiff argues that Phares knew or should have known
that Kinder and Bryant, Ltd. did not exist and that the Jem
Agreement was unenforceable when Sunbow first produced the Jem
Agreement in the State Court Action in 2004 (Pl. Sanctions Motion
at 5-6; Pl. Reply Mem. at 4).

Plaintiff asserts that Phares

engaged in sanctionable conduct by relying on the Jem Agreement
in the State Court Action and in support of the Sunbow Defendants' 2008 motions to dismiss in this action (Pl. Sanctions
Motion at 5-6, 10-11; Pl. Reply Mem. at 4-5, 6-7).

Plaintiff

also alleges that Phares has cited to the Jem Agreement in order
"to distract the Courts from serious issues that have been buried
in the substratum" of this action and other litigations plaintiff
has filed in federal and state court (Pl. Sanctions Motion at
6) . 7

In their 2008 motion to dismiss plaintiff's Complaint,
the Sunbow Defendants asserted that plaintiff's claims and the
factual allegations underlying those claims are identical to
those raised in the State Court Action and that plaintiff is
precluded from proceeding with her claims in this case due to res
judicata and collateral estoppel (see Mem. of Law in Supp. of

Plaintiff does not identify the issues that she believes
have been "buried in the substratum" of the litigations she has
pursued against Sunbow and others.
7

7

Motion to Dismiss under Fed.R.Civ.P. 12(b) (6), dated Jan. 4, 2008
("Sunbow Defs. Mot. to Dismiss")

(D.I. 33) at 1-2).

The Sunbow

Defendants also argued that Sunbow•s obligation to pay royalties
to plaintiff was governed exclusively by the Jem Agreement
(Sunbow Defs. Mot. to Dismiss at 1-2, 19).

Plaintiff responded

by arguing that the decision in the State Court Action did not
preclude her claims in this action and that she was owed payments
under the Jem Agreement; plaintiff never claimed in her opposition there was any defect in the Jem Agreement itself (Affidavit
of Anne Bryant in Response to the January 9, 2009 Letter by
Gloria Phares, Esq., Counsel for the Sunbow Defendants, sworn to
Jan. 23, 2009 (D.I. 65) at 4).

Thus, plaintiff's own response to

the motion to dismiss acknowledged the validity of the Jem
Agreement.

On March 30, 2009, the Honorable Sidney H. Stein,

United States District Judge, to whom this matter was previously
assigned, issued an Order denying the motions to dismiss without
prejudice and staying this matter pending the resolution of the
State Court Action (Order, dated Mar. 30, 2009 (D.I. 67).
Phares and Sunbow argue that plaintiff's motion for
sanctions should be denied because the Jem Agreement is a valid
enforceable contract, and that, even if the legal status of
Kinder & Bryant, Ltd. were relevant to the viability of the
agreement, there is no evidence that Phares was aware of Kinder &
8

Bryant, Ltd. 's allegedly defective legal status prior to plaintiff's raising the issue in the State Court Action in 2012 (Mem.
of Law of Def. Sunbow Productions Inc. and Gloria

c.

Phares

Opposing Anne Bryant's Motion for Sanctions, dated Jan. 29, 2016
(D.I. 117) at l; see also Hasbro Defs. Mem. in Opposition to
Plaintiff's Motion for Sanctions, dated Feb. 4, 2016 (D.I. 118)).

III.

Analysis

A.

Law Governing Motion for
Sanctions under 28 U.S.C. Section 1927

28 U.S.C. Section 1927 provides that
Any attorney or other person admitted to conduct cases
in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses,
and attorneys' fees reasonably incurred because of such
conduct.
The Court of Appeals has held that the imposition of sanctions
under Section 1927 is appropriate only "when there is a finding
of conduct constituting or akin to bad faith."

Sakon v. Andreo,

119 F.3d 109, 114 (2d Cir. 1997); accord Zurich Am. Ins. Co. v.
Team Tankers A.S., 811 F.3d 584, 591 (2d Cir. 2016); Konits v
Karahalis, 409 F. App'x 418, 423-24

(2d Cir. 2011)

(summary

order); State St. Bank and Trust Co. v. Inversiones Errazuriz
Limitada, 374 F.3d 158, 180 (2d Cir. 2004); In re 60 E. 80th St.
9

Equities, Inc., 218 F.3d 109, 115 (2d Cir. 2000); Keller v. Mobil
Corp., 55 F.3d 94, 99 (2d Cir. 1995); United States v. Int'l Bhd.
of Teamsters, Chauffeurs, Warehousemen and Helpers of Am.,
AFL-CIO, 948 F.2d 1338, 1345 (2d Cir. 1991).
Before imposing sanctions under 28 U.S.C. Section 1927
and reaching the conclusion that an attorney acted in bad faith,
a court "must find clear evidence that (1) the offending party's
claims were entirely meritless and (2) the party acted for
improper purposes."

Revson v. Cinque & Cinque, P.C., 221 F.3d

71, 79 (2d Cir. 2000), quoting Agee v. Paramount Commc'ns Inc.,
114 F.3d 395, 398 (2d Cir. 1997) (internal quotation marks omitted)); see also Sorenson v. Wolfson, No. 16-1224, 2017 WL 1043073
at *3 (2d Cir. Mar. 16, 2017)

(summary order)

("An award of

sanctions under this provision requires a showing that an 'attorney's actions are so completely without merit as to require the
conclusion that they must have been undertaken for some improper
purpose such as delay.'"

(citation omitted)); Oliveri v. Thomp-

son, 803 F.2d 1265, 1273 (2d Cir. 1986)
award made under

§

("[W]e hold today that an

1927 must be supported by a finding of bad

faith similar to that necessary to invoke the court's inherent
power.").

10

B.

Application of the
Law to the Facts

Reduced to its essentials, plaintiff's sanctions motion
asserts that Phares should be sanctioned for citing a contract on
which plaintiff herself relied in a both a state and federal
action and for not knowing more about the status of plaintiff's
corporation than plaintiff herself knew.
argument demonstrates its fatal flaws.

Merely stating the
Indeed, given the total

lack of legal and factual support for plaintiff's motion, if it
were made by an attorney,

8

plaintiff's sanctions motion may

itself be sanctionable.
With respect to the objective prong of Section 1927,
plaintiff has entirely failed to explain how a purported defect
in the formation of Kinder & Bryant Ltd. renders the Jem Agreement voidable or fraudulent.

Even if I assume, based on the

hearsay statement of an unidentified IRS agent, that there is
some defect in the formation of Kinder & Bryant Ltd., it does not
necessarily follow that the contract is fraudulent or void.

"It

is well established in New York that a company lacking formal
corporate status but nonetheless operating as a corporation may
be considered a de facto corporation and those who treat the

0nly attorneys may be sanctioned under Section 1927.
Sassower v. Field, 973 F.2d 75, 80 (2d Cir. 1992).
8

11

entity as a corporation in regular business dealings may not
later deny its corporate status."

L-Tec Electronics Corp. v.

Cougar Electronic Org., Inc., 198 F.3d 85, 87 (2d Cir. 1999); see
also In re Martin-Triqona, 760 F.2d 1334, 1340 (2d Cir. 1985).
In any event, plaintiff has not even come close to demonstrating
that the Sunbow Defendants' reliance on the Jem Agreement was
"entirely meritless."
Second, plaintiff has failed to of fer a scrap of
evidence to satisfy the subjective element of a Section 1927
motion.

There is simply no evidence showing that Phares had any

reason to know or even to suspect there was any deficiency in the
Jem Agreement at the time she filed the motions to dismiss in
2008 or at any time thereafter.

In effect, plaintiff is trying

to base liability under Section 1927 on Phares' failure to
identify alleged deficiencies in a document that plaintiff
injected into the case.

It turns the adversary system on its

head to suggest that a party, or a lawyer for a party, has
breached a duty to an adverse party for failing to identify
alleged deficiencies in the adverse party's evidence. 9

An argument could be made that plaintiff has been playing
fast and loose with the Court and the parties for failing to
withdraw her claims based on the Jem Agreement after she first
learned it was purportedly fraudulent.
9

12

In response to the argument that plaintiff has failed
to offer any evidence of bad faith, plaintiff simply attempts to
eliminate the requirement that bad faith must be shown before
sanctions can be imposed under Section 1927.
plaintiff states:

Specifically,

"Plaintiff is not required to produce one

'scintilla of evidence' about Attorney Phares' knowledge.

The

standard, as represented above, is that she is required to know."
(Pl. Reply Mern. at 5 (emphasis in original)).

Plaintiff's

argument is contrary to the law of this Circuit.

"We have

declined to uphold awards under the bad faith exception absent
both clear evidence that the challenged actions are entirely
without color and [are taken]

for reasons of harassment or delay

or for other improper purposes."

Dow Chern Pac. Ltd. v. Rascatore

Maritime S.A., 782 F.2d 329, 344 (2d Cir. 1986)

(emphasis added);

accord Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce
Factory, 682 F.3d 170, 179 (2d Cir. 2012).

Although plaintiff

cites a number of ethical precepts and authorities that prohibit
a lawyer from knowingly misleading the court or an adversary,
none of these authorities suggest that an attorney may be sanctioned for an innocent misrepresentation or for failing to
identify alleged deficiencies in evidence offered by an adversary.

13

Because plaintiff has offered no evidence that Phares
has made an argument or offered evidence that was entirely
meritless or that Phares acted in bad faith, plaintiff's motion
for sanctions is denied.

IV.

Conclusion

Accordingly, for all the foregoing reasons, plaintiff's
motion for sanctions against Gloria C. Phares, Esq. pursuant to
28 U.S.C.

§

1927 is denied in all respects.

The Clerk of the

Court is requested to mark Docket Items 115 and 122 closed.
Dated:

New York, New York
June 2, 2017
SO ORDERED

Hz:~~~
United States Magistrate Judge
Copies mailed to:
Ms. Anne Bryant
2601 Jefferson Circle
Sarasota, Florida 34239
Copies transmitted to:
All Counsel

14