Alahverdian v. Grebinski et al

Filing 35

REPORT AND RECOMMENDATIONS ON DEFENDANTS' MOTION FOR SANCTIONS - The appropriate sanction here is payment to Defendants of their reasonable attorney fees incurred in defending this action. The Court should require Plaintiff's counsel to make that payment. Objections to R&R due by 8/25/2014. Signed by Magistrate Judge Michael R Merz on 8/5/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NICHOLAS ALAHVERDIAN,
Plaintiff,

:

Case No. 3:13-cv-00132
District Judge Thomas Rose
Magistrate Judge Michael R. Merz

-vs:
MARY J. GREBINSKI, et al.,
Defendants.

REPORT AND RECOMMENDATIONS ON DEFENDANTS’ MOTION
FOR SANCTIONS

This case is before the Court on Defendants’ Motion for Sanctions against Plaintiff’s
counsel under Fed. R. Civ. P. 11 (Doc. No. 24). Plaintiff opposes the Motion (Response, Doc.
No. 26) and Defendants have filed a Reply in support (Doc. No. 29).
Even though it is not listed as a dispositive motion in 28 U.S.C. § 636(b), Rule 11 claims
for money damages have been held to be dispositive motions on which magistrate judges must
make a recommendation rather than a decision. Bennet v. General Caster Service of N. Gordon
Co., Inc., 976 F.2d 995 (6th Cir. 1992).
Fed. R. Civ. P. 11(b) reads in pertinent part:
(b) By presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written motion, or
other paper, an attorney or unrepresented party is certifying that to
the best of the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:

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(2) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of
existing law or the establishment of new law;

The standard of conduct imposed on parties and attorneys by amended Rule 11 is
reasonableness under the circumstances. INVST Financial Group v. Chem-Nuclear Systems,
Inc., 815 F.2d 391, 401 (6th Cir. 1987);

See also Business Guides, Inc., v. Chromatic

Communications Enterprises, Inc., 498 U.S. 533 (1991);

Smith v. Detroit Federation of

Teachers, 829 F.2d 1370 (6th Cir. 1987); Mihalik v. Pro Arts, Inc., 851 F.2d 790 (6th Cir. 1988).
The court must test the signer's conduct by inquiring what was reasonable to believe at the time
of signing, and must avoid using the "wisdom of hindsight." Mann v. G&G Mfg., Inc., 900 F.2d
953 (6th Cir. 1990); Century Products, Inc., v. Sutter, 837 F.2d 247 (6th Cir. 1988); INVST,
supra, at 401; Davis v. Crush, 862 F.2d 84, 88 (6th Cir. 1988). The Rule includes both a duty to
investigate the facts, Albright v. Upjohn, 788 F.2d 1217 (6th Cir. 1986), and the law, INVST,
supra, at 402.
Sanctions are appropriate when “an attorney . . . intentionally abuses the judicial process
or knowingly disregards the risk that his actions will needlessly multiply proceedings.” Red
Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006).
The true abuser of the judicial process in this whole controversy has been Plaintiff
himself. In his prior case, Alahverdian v. State of Ohio, Case No. 3:13-cv-113, he sued the State,
the Dayton Municipal Court, Judge Carl Henderson of that court, Sinclair Community College
and its President, the Montgomery County Public Defender, the Montgomery County Sheriff and
others, but was never able to construct a coherent actionable complaint. Because the initial
Complaint was dismissed without service of process and the case withdrawn without an amended

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complaint, no one was inconvenienced except the Court. But constructing a twenty-eight page
Report and Recommendations dealing with a 139 page/458 paragraph complaint was not a minor
inconvenience. So far as this Court is able to determine, Plaintiff had no actionable claim against
any of the Defendants in that case, particularly in light of Heck v. Humphrey, 512 U.S. 477, 486487(1994). Moreover, instead of just attempting to litigate his claims, Plaintiff used the lawsuit
as a platform for a media campaign about the case. Despite trumpeting in the media how he
would prove all sorts of constitutional violations, he proved nothing and dismissed the case
without attempting to prove anything.
As with the prior case, Alahverdian filed this case pro se. Faced with a motion to
dismiss, Alahverdian finally retained counsel who took four months to respond to the Motion
(See Doc. No. 12). Considering that Motion, the Court found it well taken but permitted an
amended complaint to cure the deficiencies (Doc. No. 14). Plaintiff then filed a further amended
complaint (Doc. No. 21). That Amended Complaint has now been the subject of two Reports
and Recommendations to dismiss with prejudice (Doc. Nos. 30, 34). Plaintiff’s Objections were
perfunctory at best and cited no case authority at all.
The test for sanctions under Fed. R. Civ. P. 11 is an objective one. The fact that counsel
was attempting to help a client who feels genuinely aggrieved by the conduct of Ms. Grebinski
and the Ohio legal system does not justify filing baseless litigation and subjecting innocent
parties to legal fees. Plaintiff was given the opportunity to withdraw the Amended Complaint by
service of the Rule 11 motion before its filing, but has nonetheless persisted.
The standard for determining whether to impose sanctions is one of
objective reasonableness. First Bank of Marietta v. Hartford
Underwriters Ins. Co., 307 F.3d 501, 517 (6th Cir.
2002)(recognizing that "the imposition of Rule 11 sanctions
requires a showing of 'objectively unreasonable conduct'")
(quoting United States v. Kouri-Perez, 187 F.3d 1, 8 (1st Cir.
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1999)); Union Planters Bank v. L & J Development Co., Inc., 115
F.3d 378, 384 (6th Cir. 1997) (finding that the test for the
imposition of Rule 11 sanctions is "whether the individual's
conduct was reasonable under the circumstances") (citation
omitted). The objective reasonableness standard has been adopted
"to eliminate any 'empty-head pure-heart' justification for patently
frivolous arguments." FED. R. CIV. P. 11 advisory committee
notes (1993 Amendments). Relevant factors for determining
whether the attorney acted reasonably include: "'the time available
to the signor for investigation; whether the signor had to rely on a
client for information as to the facts underlying the pleading,
motion, or other paper; whether the pleading, motion, or other
paper was based on a plausible view of the law; or whether the
signor depended on forwarding counsel or another member of the
bar.'" Davis v. Crush, 862 F.2d 84, 88 (6th Cir. 1988) (quoting
Century Products, Inc. v. Sutter, 837 F.2d 247, 250-51 (6th Cir.
1988)).
Neighborhood Research Institute v. Campus Partners for Community Development, 212 F.R.D.
374, 377 (S.D. Ohio 2002). Plaintiff’s counsel had ample time to research the law relating to
Alahverdian’s claims. As explained at length in both Reports and Recommendations, the
Amended Complaint is not based on a plausible view of the law.
The purpose of sanctions under Rule 11 is deterrence. The appropriate sanction here is
payment to Defendants of their reasonable attorney fees incurred in defending this action. The
Court should require Plaintiff’s counsel to make that payment.

X

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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