Offor v. Mercy Medical Center et al

Filing 60

MEMORANDUM AND ORDER: The Mercy defendants' motion for sanctions, Dkt. No. 51, is granted in part (as to Agwuegbo) and denied in part (as to Offor). Agwuegbo is directed to tender $2,500 to the Mercy defendants within fourteen days. The Clerk of the Court is directed to close this case. (Signed by Judge Naomi Reice Buchwald on 7/10/2018) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
DR. CHINWE OFFOR,
Plaintiff,
MEMORANDUM AND
ORDER

- against MERCY MEDICAL CENTER, CATHOLIC HEALTH
SERVICES OF LONG ISLAND, DR. SWARNA
DEVARAJAN, DR. JOHN REILLY, and U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,

17 Civ. 1872 (NRB)

Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Pending is defendants Mercy Medical Center, Catholic Health
Services of Long Island, Dr. Swarna Devarajan, and Dr. John
Reilly’s (the “Mercy defendants”) motion for sanctions against
plaintiff Dr. Chinwe Offor and her counsel, Ike E. Agwuegbo.

The

Mercy defendants assert that Offor and Agwuegbo unnecessarily, and
in bad faith, (1) refused to seek leave to seal and redact their
pleadings in this action despite being ordered to do so in related
proceedings, and then (2) opposed the Mercy defendants’ own motion
for

leave

despite

repeated

assurances

to

the

contrary.

As

explained infra, we find Agwuegbo’s conduct to be sanctionable,
and direct him to pay the Mercy defendants $2,500 in attorneys’
fees.

1

I.

BACKGROUND
Offor, acting through Agwuegbo, has brought similar lawsuits

against the Mercy defendants in the United States District Court
for the Eastern District of New York, the New York State Supreme
Court, and in this Court arising out of her August 2014 termination
from Mercy Medical Center (“MMC”).
In March 2016, the court presiding over Offor’s action in the
Eastern

District,

Judge

Spatt,

granted

the

Mercy

defendants’

motion to seal and redact a section of her complaint entitled
“Quality of Care Issues at Mercy Medical Center” (the “Quality of
Care section”), which contained a plethora of allegations of
patient mismanagement at MMC.

See Offor v. Mercy Med. Ctr., 167

F. Supp. 3d 414, 444-47 (E.D.N.Y. 2016), aff’d in part, vacated in
other part, and remanded, 676 F. App’x 51 (2d Cir. 2017) (summary
order).

Sealing and redacting was warranted, the Court found,

because the Quality of Care section and related exhibits’ inclusion
of “medical record numbers, treatment dates, partial addresses of
patients, the names of treating physicians, and details concerning
patients’ medical conditions and care” ran afoul of, inter alia,
the Health Insurance Portability and Accountability Act of 1996,
Pub. L. No. 104-191, 110 Stat. 1936, and accompanying regulations.
Id.

Judge Spatt later granted the Mercy defendants’ motion for

“a sanction in the amount of reasonable attorneys’ fees and costs
2

expended by [them] in connection with the filing of the motion to
seal” and the motion for sanctions itself.

Offor v. Mercy Med.

Ctr., No. 15-cv-2219 (ADS)(SIL), 2016 WL 3566217, at *5 (E.D.N.Y.
June 25, 2016), aff’d, 698 F. App’x 11 (2d Cir. 2017) (summary
order).1
Undeterred,

Agwuegbo

proceeded

to

file

a

complaint

and

amended complaint in this action, as well pleadings in Supreme
Court, each of which contained its own Quality of Care section.
See Defs.’ Sealing Mot. Exs. A, B, E, F, G, H, I, J, K, L, M, Apr.
30, 2018, ECF No. 49.

While the inclusion of sensitive medical

information in these pleadings was not as abundant as in the
Eastern District action, the Quality of Care sections still listed
a variety of patients’ treatment dates and locations.
In November 2017, on the Mercy defendants’ motion, the Supreme
Court, Justice Schecter, directed Offor’s pleadings therein to be
sealed, and ordered Offor and Agwuegbo to re-file versions in

1
Offor cross-moved for sanctions against the Mercy defendants and their
counsel, Nixon Peabody, contending “that the [Equal Employment Opportunity
Commission] is in collusion with Nixon Peabody to prevent the Plaintiff from
obtaining discovery related to her discrimination claims.”
Offor, 2016 WL
3566217, at *5.
Finding these contentions “to be wholly unsupported,
speculative, and without any legal basis,” the court denied her cross-motion.
Id.
Offor and Agwuegbo appealed.
In an October 2017 opinion, the Second
Circuit dismissed the appeal to the extent Offor and Agwuegbo challenged the
decision to grant the Mercy defendants’ motion since the District Court had yet
to determine the amount of attorneys’ fees to be awarded, such that the Circuit
was without jurisdiction. See Offor v. Mercy Med. Ctr., 698 F. App’x 11, 12 &
n.2 (2d Cir. 2017) (summary order). The denial of Offor’s cross-motion for
sanctions, however, was affirmed. See id. at 13.

3

accordance with redactions she emailed to the parties’ counsel.2
See id. Ex. N.

“Following Justice Schecter’s November 13, 2017

[O]rder, Plaintiff consented to making a few additional redactions
to the pleadings in the State Court Action and is currently in the
process of correcting the . . . pleadings in that action.”

Id.

at 3.
As the pleadings in the Supreme Court action and this action
are substantially similar, the Mercy defendants’ counsel, Nixon
Peabody, thereafter requested that Agwuegbo seek leave from this
Court to (1) seal Offor’s complaint and amended complaint in this
action, and (2) replace those pleadings with versions containing
the redactions the Supreme Court ordered and to which the parties
agreed.

See Defs.’ Sanctions Mot. Ex. A, at 10-11, May 11, 2018,

ECF No. 51.

Agwuegbo refused to do so, writing in an April 1,

2018 email that “Plaintiff WILL NOT be filing a motion in this
regard.”

Id. Ex. A., at 5-6.

But Agwuegbo thrice assured Nixon

Peabody that he would not oppose such a motion if brought by the
Mercy defendants.

In the same April 1 email, Agwuegbo wrote,

“Plaintiff, in order to reach a good faith compromise in the
matter, has agreed to consent (upon your motion) to redactions
similar those ordered by Hon. Judge Schecter in the State action.”

2
The Supreme Court, without explanation, declined to sanction Offor or
Agwuegbo for filing unredacted materials in the first instance.
See Defs.’
Sealing Mot. Ex. N.

4

Id. Ex. A, at 5 (emphasis added).

He had previously written, in

a March 18 email, “regarding the SDNY action, please be advised
that I will not oppose your motion to redact the same material
from the amended Complaint in light of the ruling of Honorable
Jennifer C. Schecter, J.S.C.,” and later, in an April 3 email, “I
will not oppose a motion filed by the Defendants seeking the
redaction

of

Schecter.”

the

same

materials

ordered

redacted

by

Judge

Id. Ex. A, at 4, 9.

The Mercy defendants proceeded to seek leave from this Court
to seal Offor’s pleadings and replace them with redacted versions,
representing in their submission that they had received Agwuegbo’s
consent to do so.

See Defs.’ Sealing Mot.

inexplicably,

in

and

representations,

filed

defendants’ motion.
50.

direct
a

But then Agwuegbo

contradiction

brief

in

of

opposition

his

to

the

prior
Mercy

See Pl.’s Sealing Opp’n, May 4, 2018, ECF No.

And, for no apparent reason, Agwuegbo attached to his publicly

filed brief copies of the very materials the Mercy defendants
proposed

to

highlighted.
The

seal,

in

which

the

proposed

redactions

were

See id. Ex. 1.

Mercy

defendants

thereafter

filed

a

reply

brief

responding to Agwuegbo’s unexpected opposition, in which they also
moved to seal the attachments thereto.

5

See Defs.’ Sanctions Mot.

at 4.

This Court thereafter granted both sealing motions.

See

Order, May 15, 2018, ECF No. 55; Order, May 14, 2018, ECF No. 52.
In a May 11, 2018 letter, the Mercy defendants moved for
sanctions, pursuant to 28 U.S.C. § 1927 and this Court’s inherent
power, against Offor and Agwuegbo.

See id. at 4-5.

Their motion

seeks “the attorneys’ fees and costs they incurred in connection
with their efforts to seal the pleadings in this action.”
5.

Id. at

On May 31, 2018, this Court ordered Offor and Agwuegbo to

“show cause why they should not be sanctioned for the conduct
described supra pursuant to 28 U.S.C. § 1927 and this Court’s
inherent authority.”

Order at 4, May 31, 2018, ECF No. 57.

In response, Agwuegbo filed a declaration and memorandum of
law in opposition to the contemplated sanctions.

See Declaration

of Ike Agwuegbo (“Agwuegbo Decl.”), June 8, 2018, ECF No. 59; Pl.’s
Sanctions Opp’n, June 8, 2018, ECF No. 59-3.

In addition to

several arguments against the imposition of sanctions which we
discuss infra, the submission contains a variety of irrelevant
arguments and assertions, to which we need not respond.

First,

Agwuegbo accuses Judge Spatt of using his “sanctions powers to try
to assist the Defendants in stifling the Plaintiff’s prosecution
of her case at the EDNY,” and the “entire Judicial machinery at
the Eastern District of New York [as] working in tandem to assist
[Nixon Peabody] in getting the Plaintiff’s Appeal at the Second
6

Circuit dismissed.”3

Agwuegbo Decl. ¶¶ 6, 10; see id. ¶¶ 7-9;

Pl.’s Sanctions Opp’n at 4-6.

Second, Agwuegbo suggests that “the

quest for Sanctions against the Plaintiff and her Pro bono Counsel
by [Nixon Peabody] is to financially throttle the Plaintiff and
intimidate her from fighting the glaring injustice represented in
this case.”

Agwuegbo Decl. ¶ 11; see id. ¶¶ 12-15; Pl.’s Sanctions

Opp’n at 8-9.

Finally, Agwuegbo makes a variety of arguments

about the merits of Offor’s underlying claims in this action, which
we previously rejected in dismissing her first amended complaint.
See Agwuegbo Decl. ¶¶ 3-5, 21-23; Pl.’s Sanctions Opp’n at 3-4;
Offor v. Mercy Med. Ctr., No. 17 Civ. 1872 (NRB), 2018 WL 2947971
(S.D.N.Y. May 31, 2018).4

These baseless allegations likely run afoul of Rule 8.2(a) of the New
York State Rules of Professional Conduct, which proscribes “knowingly mak[ing]
a false statement of fact concerning the qualifications, conduct or integrity
of a judge or other adjudicatory officer.” N.Y. Comp. Codes R. & Regs. tit.
12, § 1200 (2018); see S.D.N.Y. Local Rule 1.5(b)(5) (adopting the New York
State Rules of Professional Conduct “in connection with activities in” the
Southern District of New York).
3

4 Agwuegbo requested an evidentiary hearing prior to the imposition of
sanctions, citing authority from the Eleventh Circuit for the proposition that
“an attorney threatened with sanctions under § 1927 is entitled to a hearing.”
Pl.’s Sanctions Opp’n at 10 (citing Amlong & Amlong, P.A. v. Denny’s, Inc., 500
F.3d 1230, 1242 (11th Cir. 2007)). “An evidentiary hearing serves as a forum
for finding facts; as such, its need can be obviated where there is no disputed
question of fact or when sanctions are based entirely on an established record.”
Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 335 (2d Cir. 1999).
Here, the only factual issues Agwuegbo asserts relate to (1) the merits of
plaintiff’s claims, which have already been dismissed, and (2) the propriety of
parallel proceedings in the Eastern District.
As those factual issues are
irrelevant to whether sanctions are justified in this litigation, and because
there is a full paper record, we conclude that no evidentiary hearing is
necessary.

7

II.

DISCUSSION

Under 28 U.S.C. § 1927, a court may require any attorney “who
so

multiplies

the

proceedings

in

any

case

unreasonably

and

vexatiously . . . to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such conduct.”5
The Second Circuit has interpreted Section 1927 as authorizing the
imposition

of

sanctions

“when

the

attorney’s

actions

are

so

completely without merit as to require the conclusion that they
must have been undertaken for some improper purpose,” and upon “a
finding of conduct constituting or akin to bad faith.”

Gollomp

v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (internal quotation
marks omitted) (quoting In re 60 E 80th St. Equities, Inc., 218
F.3d 109, 115 (2d Cir. 2000)); see THOIP (a Chorion Ltd. Co.) v.
Walt Disney Co., No. 08 Civ. 6823(SAS), 2009 WL 125074, at *4
(S.D.N.Y. Jan. 20, 2009) (finding bad faith and awarding attorneys’
fees when, after having been timely notified of a conflict of
interest

by

voluntary

opposing

withdrawal

counsel
until

and

the

the

filing

court,
date

counsel
of

a

delayed

motion

for

disqualification, causing opposing counsel to incur unnecessary
costs).

Agwuegbo’s conduct satisfies this standard.

5 We find it unnecessary to rely upon our inherent power as Agwuegbo’s
misconduct falls squarely within Section 1927’s ambit.

8

First, Agwuegbo wrongfully refused to move to seal and redact
his pleadings in this action, forcing the Mercy defendants to bear
the cost of doing so.
By the time Agwuegbo filed both the initial and amended
complaints in this action, he had not only been ordered to seal
and redact similar pleadings in plaintiff’s action in the Eastern
District, see Offor, 167 F. Supp. 3d at 446, but had also been
sanctioned for his initial failure to do so, see Offor, 2016 WL
3566217, at *3-5; see also In re Hartford Litig. Cases, 642 F.
App’x 733, 736-37 (9th Cir. 2016) (summary order) (finding relevant
to the bad faith determination that the sanctioned attorney had
previously

been

sanctioned

for

similar

conduct);

Fallin

v.

Baltimore County, No. 97-2425, 1999 WL 753992, at *1 (4th Cir.
Sept. 23, 1999) (same).

Further, by the time the Mercy defendants

requested that Agwuegbo seek leave from this Court to seal and
redact plaintiff’s pleadings, yet another court, the New York
Supreme Court, had weighed in, also ordering him to redact similar
pleadings.

See Defs.’ Sealing Mot. Ex. N.

Given that Agwuegbo

had been made aware of his obligation to file sensitive medical
information under seal—well before he filed the pleadings in this
action—we can think of no legitimate reason for him to have refused
to carry the burden of seeking leave from this Court.
apparently,

can

Agwuegbo,

whose
9

brief

and

declaration

Nor,
in

opposition to the Mercy defendants’ sanctions motion do not even
address his refusal to seek leave, much less provide any colorable
arguments or explanations for his decision in that regard.

Cf.

Purisima v. Xilai, No. 11-CV-5523 (NGG)(LB), 2012 WL 293772, at *2
(E.D.N.Y.

Jan.

31,

2012)

(finding

relevant

the

sanctioned

plaintiff’s failure to address concerns raised in an order to show
cause).
Second, Agwuegbo falsely represented not once, not twice, but
three times that he would not oppose the Mercy defendants’ motion
to seal and redact the complaint and amended complaint.

In doing

so, Agwuegbo not only directly misled his adversary, but also,
given the Mercy defendants’ representation to this Court that their
motion

was

unopposed,

indirectly

misled

this

Court.

Defs.’

Sealing Mot. at 1 (“Plaintiff consents to the [Mercy d]efendants’
motion.”); id. Ex. P (attaching copies of Agwuegbo’s emails to
Nixon

Peabody

misrepresenting

his

consent

to

their

sealing

motion); see Mason Agency Ltd. v. Eastwind Hellas SA, No. 09 Civ.
6474(DLC), 2009 WL 3169567, at *2 (S.D.N.Y. Sept. 29, 2009) (“The
rules of professional responsibility . . . impose upon attorneys
a

duty

of

candor

tribunal.”).

in

all

representations

they

make

before

a

Such intentional misrepresentations are the epitome

of bad faith.

10

Agwuegbo, however, suggests that it was wrong for the Mercy
defendants to assume on the basis of his representations that he
had consented to their motion.
“[Nixon

Peabody]

should

have

This is so, he explains, because
brought

[sic]

accordance with the agreement of the parties.”

a

stipulation

in

Agwuegbo Decl.

¶ 18; see id. (Nixon Peabody “on the strength of our earlier
agreement did not need to file a motion to seal.”).
is highly ironic.

This argument

In emails on May 4 and May 7, 2018, Nixon

Peabody demanded an explanation from Agwuegbo as to why, in light
of his prior representations, he opposed the Mercy defendants’
motion.

See Pl.’s Sanctions Mot. Ex. A, at

1-3.

replied, “I do not believe that we had an agreement.

Agwuegbo

The exchange

you refer to merely shows that there was an offer, followed by a
counter offer.

Thus, the parties did not agree.”

1 (emphasis added).

Id. Ex. A, at

For Agwuegbo now to argue that the “strength”

of the “agreement” warranted a stipulation is disingenuous.

In

any event, Agwuegbo’s suggestion that Nixon Peabody was somehow
obligated to prepare a joint stipulation—yet an additional burden
he seeks to shift to opposing counsel—is meritless.

Counsel is

entitled to rely upon the factual representations of his adversary,
particularly where, as here, the representations were repeated,
clear, and unequivocal.6

6

Cf. Glob. Switching Inc. v. Kasper, No.

Agwuegbo’s explanation to Nixon Peabody for why he opposed the Mercy

11

CV 06 412(CPS), 2006 WL 1800001, at *14 (E.D.N.Y. June 29, 2006)
(“[I]t

is

possession

reasonable
of

certain

where

.

.

factual

.

the

adversary

information,

and

is
it

in

sole

would

be

difficult or impossible to verify the information, for a plaintiff
to rely on factual representations by an adversary.”).
Third, the sealing opposition brief Agwuegbo filed, to which
the Mercy defendants were thereby compelled to incur additional
costs

to

reply,

was

meaningful arguments.

completely

unnecessary

and

advanced

no

A significant majority of his two and a

half page brief is dedicated to setting forth the general standards
for sealing, with only two citations to controlling authority.
See Pl.’s Sealing Mot. at 1-2.

The remainder of the brief

incorrectly asserts (1) that “Defendants ha[d] not articulated any
injury that would justify the sealing of the docket and restriction
from public view,” and (2) that the Supreme Court had “reject[ed]”
the Mercy defendants’ “similar arguments” in favor of sealing and

defendants’ motion went on to state that “[i]n any event, your letter motion
not only sought to seal, but failed to define the scope of redactions to be
made.”
Defs.’ Sanctions Mot. Ex. A, at 1.
That statement is demonstrably
false. The Mercy defendants’ sealing motion attached as exhibits the precise
redactions which they sought to be ordered. See Defs.’ Sealing Mot. Exs. A,
B, E, F, G, H, I, J, K, L.

12

redacting plaintiff’s “similar” pleadings in that action.

Id. at

2-3.
Agwuegbo offers two baseless explanations for why filing an
opposition brief was necessary.
First, Agwuegbo suggests that the Mercy defendants “sought
to revisit through [their sealing] Motion, arguments canvassed in
[their] Motion to Dismiss, cleverly, craftfully [sic] forcing the
hand of the Plaintiff’s Attorney to respond.”
Opp’n at 7.

We disagree.

Pl.’s Sanctions

Agwuegbo is presumably referring to two

sentences of the Mercy defendants’ five page brief that summarize
their arguments on the motion to dismiss, to wit, that the Mercy
defendants were not state actors and, as such, that plaintiff could
not state a claim under § 1983.

See Defs.’ Sealing Mot. at 2.

These

the

two

sentences,

found

in

brief’s

“Background

and

Procedural History” section, were clearly an effort to provide
context for this Court, not to reargue the merits.

Indeed, the

very next sentence advised that the Mercy defendants’ motion to
dismiss had already “been fully briefed.”

Id.

Regardless, the

assertion that Agwuegbo was somehow “forced” to respond to the
Mercy defendants’ “arguments” on the merits is baseless because
Agwuegbo did not respond to those “arguments.” 7

Indeed, the

7
It is not lost on this Court that Agwuegbo accuses the Mercy defendants
of improperly raising merits arguments in their sealing motion whilst
simultaneously making inapposite merits arguments in his own brief and

13

brief’s only mention of the merits of plaintiff’s claims is a
single sentence, not responsive to the Mercy defendants’ motion:
“[T]he

main

thrust

of

the

Plaintiff’s

Complaint

against

the

Defendants is the flagrant violation of her basic civil rights
guaranteed

by

Constitution.”

the

fifth

and

fourteenth

Amendments

to

the

Pl.’s Sealing Opp’n at 3.

Next, Agwuegbo argues that a response was necessary because
the Mercy defendants sought to redact more material in plaintiff’s
pleadings in this Court than had been ordered, and to which the
parties had agreed, in Supreme Court.

See Agwuegbo Decl. ¶ 16.

Relatedly, he explains that the reason he attached a highlighted
copy of the redactions the Supreme Court ordered was to demonstrate
the extent to which the Mercy defendants were seeking additional
redactions.
fails.

Id. ¶ 17; Pl.’s Sanctions Opp’n at 8.

That argument

Nowhere in his sealing opposition did Agwuegbo argue that

the redactions sought were in addition to those the Supreme Court
imposed and to which the parties had agreed.

On the contrary, the

brief “urge[d] the Court to reject the motion to Seal in its
entirety.”

Pl.’s Sealing Opp’n at 3.

Further, even if he had

made such an argument, necessitating a comparison between the
redactions ordered and agreed to on the one hand, and those the
Mercy defendants sought in this Court on the other, it would still

declaration in opposition to sanctions.

14

See supra.

have been improper for him to publicly file the former sans
redactions, as he did.
Thus, we conclude that Agwuegbo’s refusal to seek leave from
this Court to seal and redact his pleadings, as well as his
unexpected opposition to the Mercy defendants’ motion to do so,
was entirely in bad faith.

Accordingly, we sanction Agwuegbo for

his misconduct under 28 U.S.C. § 1927.
On the other hand, there is no basis in the record on which
to sanction Offor.
Agwuegbo,

was

There is no suggestion that Offor, rather than

responsible

for

including

sensitive

medical

information in her pleadings in this action in the first instance,
or that she directed Agwuegbo to refuse to seek leave in this Court
to

seal

and

redact

her

pleadings,

defendants’ motion to do so.

or

to

oppose

the

Mercy

Moreover, it was Agwuegbo, not Offor,

who represented to the Mercy defendants’ counsel that their motion
would be unopposed.

See Defs.’ Sanctions Mot. Ex. A, at 4 (“I

will not oppose a motion filed by the Defendants seeking the
redaction

of

the

same

materials

ordered

redacted

by

Judge

Schecter.” (emphasis added)); 9 (“I will not oppose your motion to
redact the same material from the amended Complaint.” (emphasis
added)).
The only issue remaining, then, is fashioning the proper
sanction for Agwuegbo’s misconduct.
15

“District courts are given

broad

discretion

sanctions.”

in

tailoring

appropriate

and

reasonable

SEC v. Smith, 710 F.3d 87, 98 (2d Cir. 2013) (quoting

O’Malley v. N.Y.C. Transit Auth., 896 F.2d 704, 709 (2d Cir.
1990)).

Sanctions

plaintiff[’s]

“should

counsel’s

be

conduct

the

minimum

without

needed

to

deter

over-punishing

him.”

Pentagen Techs. Int’l Ltd. v. United States, 172 F. Supp. 2d 464,
474 (S.D.N.Y. 2001) (citing Eastway Const. Corp. v. City of New
York, 821 F.2d 121, 123 (2d Cir. 1987)), aff’d, 63 F. App’x 548
(2d Cir. 2003) (summary order).

Further, in awarding attorneys’

fees and costs as a sanction, a “defendant is not entitled to
reimbursement for the fees and costs it would have incurred in the
normal course of litigation, nor is it entitled to those which
were not directly caused by plaintiff’s sanctionable conduct.”
Tse v. UBS Fin. Servs., Inc., 568 F. Supp. 2d 274, 327 (S.D.N.Y.
2008); see Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178
(2017).
Agwuegbo makes two arguments for leniency, neither of which
is persuasive.
First, Agwuegbo explains that Offor is destitute following
her termination, and therefore asks this Court to “reject the calls
for the imposition of Sanctions by the Attorney of the billionaire
Defendant

Corporation.”

Sanctions Opp’n at 8-9.

Agwuegbo

Decl.

¶¶

12-14,

24;

Pl.’s

Offor’s financial condition, however, is
16

irrelevant given that it is Agwuegbo, the attorney, not Offor, the
client, who is sanctionable under Section 1927.

See Oliveri v.

Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986).
Second, Agwuegbo, who represents Offor pro bono, “urges the
Court to exercise its discretion in favor of the Plaintiff and
refrain from awarding sanctions in this case against this Pro bono
Attorney.”

Pl.’s Sanctions Opp’n at 9; see Agwuegbo Decl. ¶ 15.

We decline to consider the fact that Agwuegbo is not being paid
for representing Offor in considering the proper sanction for his
misconduct.

“Courts cannot be expected to base codes of proper

conduct on whether, or how much, counsel is paid for his or her
work.

We think that a system which attempted to encourage lawyers

to handle . . . cases pro bono by exempting them from the rules
that other attorneys must follow would be not only unwise and
unworkable, but perverse.”

Foster v. Mydas Assocs., Inc., 943

F.2d 139, 144 (1st Cir. 1991).
Despite clear warnings from two different courts, Agwuegbo
indefensibly shirked the burden of seeking leave from this Court
to seal pleadings

he himself had filed,

instead causing his

adversary to seek leave by falsely representing that he would
consent to their motion.

But for Agwuegbo’s misconduct

and

failure to meet his own responsibilities, the Mercy defendants
would not have incurred the cost of moving, and later defending
17

their motion,
Court.

to seal and redact plaintiff's pleadings

Accordingly,

in this

we direct Agwuegbo to compensate the Mercy

defendants with $2,500 of the attorneys'

fees

they

incurred in

preparing and defending their motion to seal Offor's pleadi~gs,
"the minimum needed to deter
punishing him."

[Agwuegbo's]

conduct without over-

Pentagen Techs. Int'l, 172 F. Supp. 2d at 474.

III. CONCLUSION

The Mercy defendants' motion for sanctions,

Dkt. No.

51,

is

granted in part (as to Agwuegbo) and denied in part (as to Of for).
Agwuegbo

is

directed

within fourteen days.

to

tender

$2,500

to

the Mercy defendants

The Clerk of the Court is directed to close

this case.

Dated:

Lei2~~

New York, New York
July /IJ, 2018

NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

18

Counsel for plaintiff:

Ike Agwuegbo
Ike Agwuegbo & Co.

Counsel for Mercy defendants:

Christopher G. Gegwich
Tony G. Dulgerian
Nixon Peabody LLP

19