Almonte v. New York Police Department et al
Filing
181
OPINION & ORDER re: 162 MOTION for Attorney Fees and Sanctions filed by Kenneth Hines, Laura Cadavid. For the reasons set forth above, Defendants' motion for attorneys' fees and sanctions is DENIED. The Clerk of Court is directed to terminate the motion docketed at ECF No. 162 and remove this case from the activedocket. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 3/11/2020) (cf)
Case 1:09-md-02013-PAC Document 57
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MARCO ALMONTE,
:
:
UNITED STATES DISTRICT COURT
Plaintiff,
:
SOUTHERN DISTRICT OF NEW YORK
:
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-againstIn re FANNIE MAE 2008 SECURITIES
::
LITIGATION
::
KENNETH HINES and LAURA
::
CADAVID,
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:
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Defendants.
:
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Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 03/11/2020
No. 157831 (PAC)
08 Civ. Civ. 6843 (JFK)
OPINION &
09 MD 2013 (PAC)ORDER
OPINION & ORDER
APPEARANCES
HONORABLE PAUL A. CROTTY, United States District Judge:
FOR PLAINTIFF MARCO ALMONTE:
Andrew J. Peck
Jessica A. Masella BACKGROUND1
Lane E. McKee
George P. Burns
The early years of this decade saw a boom in home financing which was fueled, among
Michael G. Lewis
DLA low interest (US)
other things, byPIPER LLPrates and lax credit conditions. New lending instruments, such as
FOR DEFENDANTS KENNETH loans) & Alt-A mortgages (low-documentation loans)
subprime mortgages (high credit riskHINES and LAURA CADAVID:
Brachah Goykadosh
Daron R. Ravenborg
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
CORPORATION COUNSEL OF THE CITY OF NEW YORK
assumption that the market would continue to rise and that refinancing options would always be
JOHN F. KEENAN, United States District Judge:
available in the future. Lending discipline was lacking in the system. Mortgage originators did
Defendants Detective Kenneth Hines (“Hines”) and Officer
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
Laura Cadavid (“Cadavid”) (together, “Defendants”), New York
originators sold their loans into the secondary mortgage market, often as securitized packages
City police officers, bring a motion for attorneys’ fees and
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
sanctions pursuant to Federal Rule of Civil Procedure 54, 42
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
U.S.C. § 1988, and 28 U.S.C. § 1927 against Plaintiff Marco
and home prices began to fall. In light of the changing housing market, banks modified their
Almonte (“Almonte”) and his pro bono, court-appointed trial
lending practices and became unwilling to refinance home mortgages without refinancing.
counsel, DLA Piper LLP (US) (“DLA Piper” or “Almonte’s
Counsel”), (together, “Plaintiff”) following a jury verdict in
1
Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
1
1
Defendants’ favor and dismissal of Almonte’s claim of excessive
use of force during a December 2013 arrest.
For the reasons set
forth below, Defendants’ motion is DENIED.
I.
Background
The following facts are drawn from Almonte’s criminal
proceedings, United States v. Almonte, 14 Cr. 86 (KPF)
(S.D.N.Y.), Judge Engelmayer’s August 21, 2018 Opinion & Order
which granted Defendants’ motion for partial summary judgment on
certain of Almonte’s claims in this action, Almonte v. City of
New York, No. 15 Civ. 6843 (PAE), 2018 WL 3998026 (S.D.N.Y. Aug.
21, 2018), and the testimony and evidence introduced during the
June 2019 jury trial before this Court, Almonte v. Hines, 15
Civ. 6843 (JFK) (S.D.N.Y.).
A.
Almonte’s Arrest and Conviction
During the early morning hours of December 5, 2013,
Defendants were patrolling the 44th Precinct in the Bronx when
they arrived at Claremont Park, which had recently been the site
of a string of robberies and, at that time of the night, was
closed to the public.
At approximately 12:45 a.m., Defendants
observed Almonte walking in the park.
As Defendants approached
him in their marked police car, Almonte looked in their
direction and walked towards the park exit.
him.
Hines called out to
Almonte stopped near the park exit and approached the
police car.
When Cadavid attempted to issue a summons to
2
Almonte for trespassing in the park after hours, Almonte fled
from the officers and began running down a street adjacent to
the park.
the ground.
As he ran, Almonte removed his jacket and threw it to
Hines chased after Almonte and quickly tackled him.
The tackle caused minor injuries to Almonte’s hands, arms, and
legs.
After Almonte was restrained and handcuffed, Cadavid
recovered a loaded revolver from inside the jacket Almonte had
discarded.
Almonte was arrested on several state charges, including
criminal possession of a weapon, resisting arrest, and criminal
trespass.
On December 19, 2013, Almonte was indicted in the New
York State Supreme Court in Manhattan on related charges, and on
February 7, 2014, he was indicted in the Southern District of
New York for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1).
During his initial
appearance in federal court, Almonte was detained on consent; he
remained in the custody of the Federal Bureau of Prisons for the
entirety of the criminal action.
On December 3, 2014, a federal
jury unanimously convicted Almonte of unlawful possession of a
firearm after a three-day trial before Judge Failla.
Almonte
filed a series of motions to challenge his conviction, including
motions to set aside the verdict, for a new trial, and for a
judgment of acquittal, none of which was successful.
3
On January
25, 2016, Almonte was sentenced to 72 months’ imprisonment. 1
His
conviction was affirmed by the Second Circuit on August 17,
2017.
B.
Almonte’s Civil Action and Trial
On August 28, 2015, prior to his sentencing, Almonte
initiated this action pro se as a prisoner complaint under the
Civil Rights Act, 42 U.S.C. § 1983.
The complaint alleged that
during Almonte’s December 5, 2013 arrest, Defendants stopped him
without probable cause, struck him, applied chokeholds, and
dragged him along the ground.
Almonte sought $2 million in
damages.
On September 15, 2017, Defendants and former-Defendant the
City of New York (“the City”) moved for partial summary judgment
with respect to Almonte’s unlawful stop and false arrest claims
against Defendants, and as to all of his § 1983 claims against
the City.
Defendants, however, did not move for summary
judgment on Almonte’s § 1983 excessive force claim.
On August
21, 2018, Judge Engelmayer granted the motion and ordered the
parties to prepare for trial on the one surviving claim.
On
September 5, 2018, Judge Engelmayer granted Almonte’s request
for pro bono trial counsel, and the following month attorneys
1
According to the Federal Bureau of Prisons inmate locator, Almonte,
Prisoner Registration Number 69856-054, was released from federal
custody on March 1, 2019. See https://www.bop.gov/inmateloc/ (last
visited Mar. 6, 2020).
4
from DLA Piper entered notices of appearance on his behalf.
Judge Engelmayer scheduled a four-day jury trial for June 24–27,
2019.
In May 2019, Plaintiff moved in limine to, inter alia,
preclude evidence of the firearm during the trial.
Defendants
cross-moved to, inter alia, introduce the firearm as well as
evidence of Almonte’s conviction.
Plaintiff’s primary argument
against introduction of the firearm or Almonte’s conviction
rested on the thesis that the determinative issue to be decided
by the jury was the reasonableness of force that Defendants used
during the arrest.
Accordingly, Plaintiff argued, the discovery
of the gun after the arrest and Almonte’s resulting conviction
should be excluded as irrelevant and unduly prejudicial.
While the in limine motions were pending, the case was
reassigned to Judge Stanton.
On June 3, 2019, Judge Stanton
granted Plaintiff’s in limine motion and denied Defendants’
cross-motion, in relevant parts, by precluding Defendants from
introducing evidence of the firearm or Almonte’s conviction.
On
June 12, 2019, however, the case was reassigned to this Court,
and that same day, Defendants moved for reconsideration of Judge
Stanton’s decision regarding the admissibility of the firearm
and Almonte’s conviction.
Plaintiff opposed the motion, but on
June 19, 2019, five days before the trial was scheduled to
begin, the Court granted Defendants’ motion for reconsideration
5
in part by allowing them to admit evidence of the firearm to
challenge Almonte’s credibility, but barring them from
introducing evidence of Almonte’s conviction unless he first
opened the door on the issue during the trial.
On June 23, 2019, Plaintiff moved for reconsideration of
the Court’s June 19, 2019 order, to which Defendants filed an
opposition later that same day.
The following day, which also
happened to be the first day of trial, the Court denied
Plaintiff’s motion for reconsideration.
Jury selection began
and the trial commenced, during which Almonte and Officers Hines
and Cadavid testified about the circumstances surrounding
Almonte’s December 5, 2013 arrest.
At the conclusion of
Plaintiff’s case-in-chief, Defendants moved for judgment as a
matter of law pursuant to Rule 50 of the Federal Rules of Civil
Procedure.
The Court denied the motion.
Defendants offered
their rebuttal case by adopting the testimony of Hines and
Cadavid, after which they rested and renewed their Rule 50
motion.
Once again, the Court denied the motion.
On June 27,
2019, the jury unanimously returned a verdict in favor of
Defendants by finding that Plaintiff had not proved by a
preponderance of the evidence that Hines intentionally or
recklessly used excessive force against Almonte during the
arrest.
6
On July 22, 2019, Defendants moved for an order requiring
Almonte and DLA Piper to pay to Defendants’ attorneys,
Corporation Counsel of the City of New York (“Corporation
Counsel”), approximately $49,000 in legal fees pursuant to 42
U.S.C. § 1988, 28 U.S.C. § 1927, and the Court’s inherent power
to levy sanctions on parties who misuse the judicial process.
Almonte’s Counsel opposed the motion on their own behalf;
Almonte himself, however, never filed any opposition or
counterargument to Defendants’ request.
II.
Analysis
A.
Legal Standard
Federal Rule of Civil Procedure 54(d)(2) allows a party to
file a claim for attorney’s fees by motion.
Title 42 of the
United States Code, Section 1988, “allows the award of ‘a
reasonable attorney’s fee’ to ‘the prevailing party’ in various
kinds of civil rights cases, including suits brought under §
1983.” Fox v. Vice, 563 U.S. 826, 832–33 (2011).
“The purpose
of awarding such fees [where a defendant is the prevailing
party] is to discourage litigants from bringing frivolous cases
and to spare members of the public from the expense of defending
against baseless allegations.” Abeyta v. City of New York, No.
12 Civ. 5623 (KBF), 2014 WL 929838, at *1 (S.D.N.Y. Mar. 7,
2014), aff’d, 588 F. App’x 24 (2d Cir. 2014) (brackets and
internal quotation marks omitted).
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Where a court determines
that a plaintiff’s action was frivolous, unreasonable, or
without foundation, the court may grant reasonable fees to the
defendant for costs that the defendant would not have incurred
but for the frivolous claims. Fox, 563 U.S. at 829, 833.
Courts also have the inherent authority to sanction a
litigant or his attorneys for actions taken “in bad faith,
vexatiously, wantonly, or for oppressive reasons.” United States
v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345 (2d Cir. 1991)
(quotation marks omitted).
Further, under 28 U.S.C. § 1927, an
attorney “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.” 28 U.S.C. §
1927.
“[T]he only meaningful difference between an award made
under § 1927 and one made pursuant to the court’s inherent power
is [that] . . . awards under § 1927 are made only against
attorneys or other persons authorized to practice before the
courts while an award made under the court’s inherent power may
be made against an attorney, a party, or both.” Oliveri v.
Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986).
“A sanctions award is a powerful weapon in the Court’s
arsenal.” Pac. Elec. Wire & Cable Co., Ltd. v. Set Top Int’l
Inc., No. 03 Civ. 9623 (JFK), 2005 WL 2036033, at *5 (S.D.N.Y.
Aug. 23, 2005).
Accordingly, “courts must tread carefully in
8
this area, lest they ‘stifle the enthusiasm or chill the
creativity that is the very lifeblood of the law.’” Id. (quoting
Motown Prods., Inc. v. Cacomm, Inc., 849 F.2d 781, 785 (2d Cir.
1988)).
Requests for sanctions require the moving party to
satisfy a very high bar:
“As a statute with a punitive thrust,
§ 1927 is to be strictly construed,” Cresswell v. Sullivan &
Cromwell, 922 F.2d 60, 70 (2d Cir. 1990), and “inherent powers
must be exercised with restraint and discretion,” Chambers v.
NASCO, Inc., 501 U.S. 32, 44 (1991).
B.
Discussion
1.
Attorneys’ Fees Pursuant to 42 U.S.C. § 1988
Defendants request the Court order Almonte to compensate
Corporation Counsel for the time and effort two of its attorneys
spent defending Hines and Cadavid against Almonte’s failed, and
purportedly meritless, claim of excessive force.
Almonte did
not oppose the motion.
“Section 1988 ‘authorizes a district court to award
attorney’s fees to a defendant upon a finding that the
plaintiff’s action was frivolous, unreasonable, or without
foundation.’” Abeyta v. City of New York, 588 F. App’x 24, 26
(2d Cir. 2014) (summary order) (quoting Fox, 563 U.S. at 833).
Nevertheless, “a plaintiff should not be assessed his opponent’s
attorney’s fees unless [the] court finds that his claim [meets
one of these three requirements], or that the plaintiff
9
continued to litigate after it clearly became so.” Panetta v.
Crowley, 460 F.3d 388, 399 (2d Cir. 2006) (quoting
Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n,
434 U.S. 412, 422 (1978)).
Accordingly, even though neither
Almonte nor DLA Piper directly challenged Defendants’ motion for
attorneys’ fees pursuant to § 1988, the Court may only grant
such a request after first finding that Almonte’s claims were
frivolous, unreasonable, or without a foundation.
The Court
declines to do so, and it thus denies Defendants’ § 1988
request.
First, Almonte’s excessive force claim was not frivolous or
unreasonable because no dispute ever existed regarding whether
(1) Hines physically tackled Almonte to the ground and a
struggle ensued afterwards, (2) during an encounter that began
when Almonte drew the officers’ attention for the minor offense
of trespassing afterhours in a closed outdoor park, and (3) that
the tackle caused visible, albeit at first glance minor,
physical injuries to Almonte’s person.
Although the parties
disputed whether Hines applied a chokehold or punched Almonte
during the struggle, a reasonable juror could have looked at
these undisputed facts and determined that Hines’ split-second
decision to tackle Almonte, and keep him on the ground until he
could be handcuffed, was an excessive use of force in the
circumstances.
The fact that a reasonable juror could—and,
10
indeed, did—find otherwise does not retroactively make Almonte’s
claim frivolous or unreasonable. See Nicholas v. Harder, 637 F.
App’x 51, 53 (2d Cir. 2016) (summary order reversing and
vacating district court’s award of attorneys’ fees to police
officer defendants in a § 1983 action) (“[T]he mere fact that
the jury ultimately chose to disbelieve [the plaintiff] did not
render her claim frivolous.”).
Second, unlike the circumstances in Abeyta, 2014 WL 929838,
which granted a request by defendant New York City police
officers for an award of attorneys’ fees, here, Almonte’s
excessive force claim had a sufficient foundation because it did
not rely solely on his own credibility to establish whether the
predicate § 1983 alleged misconduct occurred.
Unlike Abeyta,
Almonte’s claims arose out of and were centered on the
uncontested fact that Hines physically brought Almonte to the
ground during the arrest and inflicted at least some injury on
him in the process.
Whether Almonte was entitled to any
compensation as a result could only be resolved by a jury of his
and Hines’s peers.
In Abeyta, by contrast, the parties wholly disputed whether
the police officer defendants ever slammed the plaintiff’s head
against the hood of their squad car during the arrest, as Abeyta
alleged and which he claimed caused his injuries. See Abeyta,
2014 WL 929838, at *2.
At the summary judgment stage the Abeyta
11
court ruled that this disputed question of fact necessitated a
trial. See id. at *1.
After the trial, however, the court
“invited” the defendant police officers to file a motion for
attorneys’ fees when it became “frustratingly evident at trial
that this was a case that never should have been filed” and
“what appeared to be disputed issues of fact at summary judgment
were revealed as obviously fictitious allegations at trial.” Id.
at *1, *2.
These circumstances are wholly different than the
circumstances of Almonte’s action. Cf. Nicholas, 637 F. App’x at
52 (“Ordinarily, a claim should not be deemed groundless where
the plaintiff has made a sufficient evidentiary showing to
forestall summary judgment and has presented sufficient evidence
at trial to prevent the entry of judgment against him as a
matter of law.
As the decisions of this Court demonstrate, it
is very rare that victorious defendants in civil rights cases
will recover attorneys’ fees.”) (citations and internal
quotation marks omitted).
Accordingly, Defendants’ motion for attorneys’ fees
pursuant to 42 U.S.C. § 1988 is denied.
2. Sanctions Pursuant to 28 U.S.C. § 1927 and
the Court’s Inherent Power
Defendants also request that the Court sanction not just
Almonte, but his pro bono trial counsel as well, by ordering
Almonte to pay approximately $49,000 to Corporation Counsel for
12
allegedly perjuring himself during the trial, and levying the
same against DLA Piper for their purportedly improper efforts to
gain an unfair advantage over Defendants.
To succeed on a motion for sanctions under either § 1927 or
the Court’s inherent powers, the movant must demonstrate “clear
evidence that (1) the offending party’s claims were entirely
without color, and (2) the claims were brought in bad faith—that
is, motivated by improper purposes such as harassment or delay.”
Huebner v. Midland Credit Mgmt., Inc., 897 F.3d 42, 55 (2d Cir.
2018) (quoting Kim v. Kimm, 884 F.3d 98, 106 (2d Cir. 2018)),
cert. denied, 139 S. Ct. 1282 (2019).
“The test is conjunctive
and neither meritlessness alone nor improper purpose alone will
suffice.” Sierra Club v. U.S. Army Corps of Eng’rs, 776 F.2d
383, 390 (2d Cir. 1985).
“Section 1927 and inherent-power
sanctions require clear evidence of both.” Pac. Elec. Wire &
Cable Co., 2005 WL 2036033, at *5 (citing Schlaifer Nance & Co.
v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999)).
Further, sanctions may only be imposed “when there is a finding
of conduct constituting or akin to bad faith.” Sakon v. Andreo,
119 F.3d 109, 114 (2d Cir. 1997).
“A court may infer bad faith
when a party undertakes frivolous actions that are ‘completely
without merit.’” Huebner, 897 F.3d at 55 (quoting In re 60 E.
80th St. Equities, Inc., 218 F.3d 109, 116 (2d Cir. 2000)).
13
As discussed above, the Court declines to view Almonte’s
claims as frivolous, unreasonable, or without a foundation—i.e.,
the Court will not deem them to be meritless.
Accordingly,
Defendants have failed to satisfy the first prong of the test
for sanctions.
Likewise, the Court will not infer bad faith by
Almonte for the purported transgression of going to trial on
what could have been winning claims, nor bad faith on the part
of DLA Piper who zealously and honorably pursued this action on
his behalf in a manner consistent with the highest traditions of
advocacy in this district.
Indeed, the two purportedly false
statements that Defendants argue Plaintiff “knowingly” made to
the Court are (1) asserted without any basis for how Almonte’s
Counsel knew that the statements were false; and (2) woefully
inadequate to support a finding of bad faith:
The first
statement is not even false, and the second was a minor factual
assertion that played no role in the Court’s analysis of
Plaintiff’s motion for reconsideration and about which Almonte’s
Counsel could have easily been mistaken during the compressed
timeline in which they were required to draft their letter.
The
mistake is further excusable because Almonte’s habeas petition
was denied without prejudice as prematurely filed, and a second,
timely filed habeas petition could have been pending.
Finally, the Court agrees with the argument advanced by
Almonte’s Counsel that under the circumstances of this case the
14
sanctions sought by Defendants are wildly inappropriate and
could negatively impact the availability of pro bono counsel for
future indigent plaintiffs with facially valid claims against
powerful defendants.
Contrary to Defendants' protestations,
courts should be reluctant to issue monetary sanctions against
honorable and proficient pro bono law firms and attorneys-such
as the team from DLA Piper in this case-who generously volunteer
their time to vindicate the civil rights of indigent clients,
and who assist the judiciary-and, indeed, even Corporation
Counsel-by avoiding uncounseled trials.
Accordingly, Defendants' motion for sanctions pursuant to
28 U.S.C. § 1927 and the Court's inherent power is denied.
III.
Conclusion
For the reasons set forth above, Defendants' motion for
attorneys' fees and sanctions is DENIED.
The Clerk of Court is directed to terminate the motion
docketed at ECF No. 162 and remove this case from the active
docket.
SO ORDERED.
Dated:
New York, New York
March 11, 2020
~ John F. Keenan
United States District Judge
15
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