Salone v USA Brief for the US in Opposition
Public Court Documents
September 1, 1981
14 pages
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Brief Collection, LDF Court Filings. Sassower v Field Petition for Writ of Certiorari, 1993. 12046ea4-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6ad4fb55-be00-41d2-b60d-c1d77079b842/sassower-v-field-petition-for-writ-of-certiorari. Accessed April 28, 2025.
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In T h e
Bupreme Court o£ the United State*
O c t o b e r T e r m , 1992
ELENA RUTH SASSOWER and DORIS L. SASSOWER,
Petitioners,
KATHERINE M. FIELD, CURT HAEDKE, LILLY HOBBY,
WILLIAM IOLONARDI, JOANNE IOLONARDI, ROBERT
RIFKIN, individually, and as Members of the Board of Directors
of 16 Lake Street Owners, Inc., HALE APARTMENTS, DeSISTO
MANAGEMENT, INC., 16 LAKE STREET OWNERS, INC.,
ROGER ESPOSITO, individually, and as an officer of 16 Lake
Street Owners, Inc.
Respondents,
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
DORIS L. SASSOWER
Petitioner Pro Se
283 Soundview Avenue
White Plains, New York 10606
(914) 997-1677
ELENA RUTH SASSOWER
Petitioner Pro Se
16 Lake Street, Apt. 2C
White Plains, New York 10603
(914) 997-8105
QUESTIONS PRESENTED
1. Whether fee-shifting under inherent power against
civil rights plaintiffs is barred by retroactivity and
preemption, where an award under the Fair Housing
Act, as amended after the action was commenced,
could not be sustained under the Christiansburg
standard?
2. Whether fee-shifting under inherent power may be
used as a backup to uphold awards under Rule 11 and
28 U.S.C. §1927, which do not meet the standards of
those provisions?
3. Whether fee-shifting under inherent power against
civil rights litigants requires due process and the right
to trial by jury, neither of which was afforded?
4. Whether fee-shifting under inherent power violates
equitable rules of "unclean hands" and "unjust
enrichment", where the fully-insured defendants did
not controvert plaintiffs' 60(b)(3) motion1 and never
claimed to be acting on the insurer's behalf in making
their post-trial fee applications? *
Plaintiffs respectfully submit that the question of their
entitlement to the granting of their Rule 60(b)(3) motion, as a matter of
law, be subsumed within this question.
TABLE OF CONTENTS
QUESTIONS PRESENTED
TABLE OF AUTHORITIES
OPINIONS BELOW...................................................... 1
JURISDICTION................................................ ............. 1
STATUTES AND RULES INVOLVED.................... 1
STATEMENT OF THE CASE.................................... 2
Overview........................................................................... 2
Factual Background....................................................... 3
The Opinion o f the District Court............................... 6
Appeal to the Circuit Court.......................................... 9
The Opinion of the Circuit Court................................ 10
Petition for Rehearing and Suggestion
for Rehearing En Banc.................................................13
REASONS FOR GRANTING THE WRIT. 14
POINT I
The Judicial Remedy Of Fee-Shifting
Under Inherent Power Is Barred
By Retroactivity And Preem ption.................................16
POINT II
The Use Of Inherent Power To Uphold
Deficient Fee-Shifting Awards Under
Rule 11 and 28 U.S.C. §1927 Violates
The Standards of Those Provisions,
The Rules Enabling Act And
Constitutional Separation of Power................................19
POINT III
Inherent Power, As Applied By The
Second Circuit, Violates Fundamental
Constitutional Rights And Decisional Law
Of This Court....................................................................21
A. The Fifth Amendment: Due Process....................... 21
B. The Seventh Amendment: Trial By Jury............... 23
POINT IV
The Circuit Court's Use Of Equitable
Inherent Power Is Unrestrained By Equitable
Considerations Of "Unclean Hands" And
"Unjust Enrichment"............................................ 24
POINT V
The Second Circuit's Discriminatory Use
of Inherent Power Raises Serious And
Substantial Questions As To Denial Of
Equal Protection Of Law......................................................26
EPILOGUE............................................................................. 28
CONCLUSION.......................................................................29
APPENDIX:
Fair Housing Act of 1968:
42 U.S.C. §3612(c)........................................................... CA-1
Fair Housing Amendments Act of 1988
42 U.S.C. § 3613(c)......................................................... CA-1
Rule 60(b).......................................................................... CA-2
Rule 11............................................................................... CA-2
28 U.S.C. §1927............................................................... CA-3
Rule 17............................................................................... CA-3
Rule 19............................................................................... CA-4
28 U.S.C.§2072................................................................ CA-5
Fifth Amendment............................................................. CA-5
Seventh Amendment........................................................CA-5
August 13, 1992 Circuit Court Opinion CA-6
August 13, 1992 Circuit Court Order,
affirming Judgment...... ......................... CA-20
August 13, 1992 Circuit Court Order,
denying plaintiffs' jurisdictional motion
to vacate Judgment........................................................CA-22
August 13, 1991 Judgment of the District Court.... CA-23
September 25, 1992 Circuit Court Order,
denying plaintiffs' Petition for Rehearing..................CA-25
October 1, 1992 Circuit Court Order,
denying plaintiffs' motion
to supplement the record............................................. CA-26
Extract from September 5, 1990 Opinion of the
District Court, denying summary judgment
to the defendant Co-Op.............................................. CA-27
August 12, 1991 Opinion of the District Court,
awarding counsel fee sanctions to defendants.........CA-28
Legal Authorities cited in plaintiffs' Petition
for Rehearing and Rehearing En Banc with which
the Circuit's Court's Opinion conflicts......................CA-56
Listing of Doris L. Sassower in
Martindale-Hubbell Law Directory........................... CA-57
ABBREVIATION GUIDE
CA-............ Certiorari Appendix
A-............... Plaintiffs' Circuit Court Appendix
AA-...........Defendants' Circuit Court Appendix
Br.............. Plaintiffs' Circuit Court Brief
R. Br...........Plaintiffs' Circuit Court Reply Brief
LDF Br..... Amicus Curiae Brief of NAACP Legal Defense
and Educational Fund
Note: Plaintiffs’ Rule 60(W 3) motion consisted of the
following documents, citation to which has been abbreviated
in their Petition for Certiorari:
5/16/91 Memorandum of Law
7/1/91 Supplemental Memorandum of Law
7/1/91 Notice of Motion
7/1/91..........Affirmation A: Part 1 (factual rebuttal to
counsel fee/sanction motion o f Lawrence Glynn, Esq.)
7/1/91..........Affirmation A: Part 2 (factual presentation in
support o f Rule 60(b)(3) motion)
7/1/91..........Affirmation B: (factual rebuttal to counsel
fee/sanction motion o f Dennis Bernstein, Esq.
7/1/91..........Affirmation C: (factual rebuttal to counsel
fee/sanction motion of Marshall, Conway & Wright
7/1/91..........Affirmation D: (factual rebuttal to counsel
fee/sanction motion of Diamond, Rutman & Costello)
3 Compendia of Exhibits
7/19/91 Reply Affirmation
TABLE OF AUTHORITIES
CASES
Anderson v. Crvovac. Inc.. 862 F.2d 910 (1st Cir. 1988)
Brocklesbv Transport v. Eastern States Escort. 904 F.2d 131,
133 (2d Cir. 1990).
Browning Debenture Flolders' Committee v. Dasa Corp.. 560
F.2d 1078 (2nd Cir. 1977)
Business Guides. Inc, v. Chromatic Communications
Enterprises. Inc.. 498 U.S. 533 (1991)
Chambers v. Nasco. ____U .S ._____, 111 S.Ct. 2123 (1991),
reh. denied,____ U .S ._____, 112 S.Ct. 12 (1991)
Christiansbure Garment Co. v. EEOC. 434 U.S. 412 (1978)
City of Burlington v. Dague. ____ U .S._____, 112 S.Ct. 2638
(1992)
Curtis v. Loether. 415 U.S. 189 (1974)
Farad v. Hickev-Freeman Co. Inc.. 607 F.2d 1025 (2d Cir.
1979)
Fleischmann Distilling Corporation v. Maier Brewing Co..
386 U.S. 714 (1967)
Garner v. State of Louisiana. 368 U.S. 157 (1961)
Haines v. Kerner. 404 U.S. 451 (1972)
Hazel-Atlas Glass Co. v. Hartford-Empire Co.. 322 U.S. 238
(1944)
OTHER AUTHORITIES
Legislative History of the Fair Housing Amendments Act of
1988, House Report No. 100-711, H.R. 1158
"Resolution on Bias in the Federal Judiciary", Report of the
Proceedings of the Judicial Conference of the United States,
September 22, 1992
Baylor Law Review. "The Proposed Amendments to Rule 11:
Urgent Problems and Suggested Solutions", [by Judge Sam D.
Johnson, Fifth Circuit] Vol. 43 (1991) at 652-654, 669-670
Harvard Law Review. "Leading Cases: Courts' Inherent
Power to Sanction in Diversity Cases", Vol. 105 (Nov. 1991),
349-360
Indiana Law Journal. "The Heileman Power: Well-Honed
Tool or Blunt Instrument?", Vol. 66 (1991), 977-998
John Marshall Law Review. "G. Heileman Brewing Co., Inc.
v. Joseph Oat Corp.: The Seventh Circuit Approves the
Exercise of Inherent Authority to Increase a District Judge's
Pre-Trial Authority Under Rule 16", Vol. 23 (1990), 517-535
Nova Law Review. "Sanctions and the Inherent Power: The
Supreme Court Expands the American Rule's Bad Faith
Exception to Fee Shifting—Chambers v. Nasco, Inc.", Vol. 16
(1992), 1527-1566
Tulane Law Review. "Chambers v. Nasco, Inc.: Moving
Beyond Rule 11 into the Unchartered Territory of Courts'
Inherent Power to Sanction", Vol. 66 (1991) 591-603
G. Heileman Brewing Co. v. Joseph Oat Corp.. 871 F.2d 648
(7th Cir. 1989) (en band
Holt v. Virginia. 381 U.S. 131 (1965)
Keystone Driller Co. v. General Excavator Co. 290 U.S. 240
(1933)
Link v. Wabash Railroad Co.. 370 U.S. 626 (1962)
Lytle v. Household Manufacturing.. Inc.. 494 U.S. 545 (1991)
In Re Murchison. 349 U.S. 133 (1955)
New York Association for Retarded Children v. Carey. 711
F.2d 1136 (1983)
Oliveri v. Thompson. 803 F.2d 1265 (2nd Cir. 1986)
Roadway Express. Inc, v. Piper. 447 U.S. 752 (1980)
Rozier v. Ford Motor Co.. 573 F.2d 1332 (5th Cir. 1978)
Thompson v. City of Louisville. 362 U.S. 199 (1960)
Transmission Parts Corp. v. Aiac, 768 F.2d 1001 (9th Cir.
1985)
Tull v. United States. 481 U.S. 412 (1987)
United States v. Aetna Casualty & Surety Co.. 338 U.S. 366
(1949)
Willy v. Coastal Corp..____ U.S. ____ , 112 S.Ct. 1076
(1992)
Withrow v. Larkin. 421 U.S. 35 (1935)
In T h e
Supreme Court of tije United States
O c t o b e r T e r m , 1992
ELENA RUTH SASSOWER and DORIS L. SASSOWER,
Petitioners,
v.
KATHERINE M. FIELD, CURT HAEDKE, LILLY HOBBY,
WILLIAM IOLONARDI, JOANNE IOLONARDI, ROBERT
RIFKIN, individually, and as Members of the Board of Directors
of 16 Lake Street Owners, Inc., HALE APARTMENTS, DeSISTO
MANAGEMENT, INC., 16 LAKE STREET OWNERS, INC.,
ROGER ESPOSITO, individually, and as an officer of 16 Lake
Street Owners, Inc.
Respondents,
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioners ELENA RUTH SASSOWER and DORIS L.
SASSOWER respectfully pray that a Writ of Certiorari issue to
review the Opinion and Orders of the Court of Appeals for the
Second Circuit entered in the above-entitled proceeding on August
13, 1992.
1
OPINIONS BELOW
The Opinion of the Court of Appeals for the Second
Circuit is reported at 973 F.2d 75 (2nd Cir. 1992) and
appears in the Appendix hereto at CA-61. The District
Court's Opinion, granting defendants' motions for a fee award
and denying plaintiffs' motion for a new trial under Rule
60(b)(3) and for Rule 11 sanctions, is reported at 138 F.R.D.
369 (S.D.N.Y. 1991) and appears at CA-28.
JURISDICTION
The Order of the Court of Appeals affirming the
Judgment of the District Court was entered on August 13,
1992 (CA-20). The Order denying plaintiffs' motion to
vacate the Judgment on jurisdictional grounds was entered on
the same date (CA-22). The Order denying plaintiffs' Petition
for Rehearing and Suggestion for Rehearing En Banc was
denied on September 25, 1992 (CA-25). The Order denying
plaintiffs' motion to expand the record was denied on October
1, 1992 (CA-26). Justice Clarence Thomas granted
petitioners' motions to extend their time to seek certiorari up
to and including February 22, 1993. Jurisdiction of this
Court is invoked under 28 U.S.C. §1254(1).
CONSTITUTIONAL. STATUTORY. AND RULE
PROVISIONS INVOLVED
The constitutional, statutory, and rule provisions relied
on by Petitioners are: The Fair Housing Act of 1968: 42
U.S.C. §3612(c); The Fair Housing Amendments Act of
1988, 42 U.S.C. §3613(c); Rule 60(b)(3); Rule 11; 28 U.S.C.
§1927; Rule 17; Rule 19; 28 U.S.C. §2072; The Fifth and *
"CA-" stands for the "Certiorari Appendix", which is
annexed hereto. A guide to other abbreviations herein appears at the end
of the Table of Contents.
2
Seventh Amendment to the U.S. Constitution. The text of
these provisions is set forth in the Appendix (CA-1-5).
STATEMENT OF THE CASE
Overview
This Petition seeks review of what the Court of
Appeals for the Second Circuit describes as "the extraordinary
remedy of an award of nearly $100,000 assessed against pro
se litigants, occasioned by extraordinary conduct" (CA-8).
The "extraordinary remedy" is the Second Circuit's
invocation of inherent power to fee-shift a totality of
litigation costs against civil rights plaintiffs after it rejected
the District Court's post-trial fee-shifting award under the Fair
Housing Act (CA-12-14), as well as its alternate fee-shifting
awards under Rule 11 and 28 U.S.C. §1927, fixed in the
identical aggregate amount (CA-14-16).
The "extraordinary conduct" deemed sanctionable
under inherent power is not specified by the Second Circuit
(CA-14, 16-17) and was not the subject of any specific
findings of fact by the District Court. No hearing was held
by the District Court to determine the facts as to any alleged
sanctionable conduct, liability therefor, or the monetary
amount of the sanction (CA-31). Each of these issues was
sharply disputed by plaintiffs, who requested an evidentiary
hearing if defendants' fee applications were not denied as a
matter of law.
This Petition seeks review of the Second Circuit's
Opinion (CA-6-19) and Order (CA-20) affirming the
Judgment of the District Court (CA-23-24). The awards
therein, in wholly arbitrary monetary amounts, represent a
"windfall" to insured defendants, whose legal defense costs
were fully paid by State Farm Insurance Company ("State
Farm").
This Petition also seeks review of the denial of
plaintiffs' uncontroverted Rule 60(b)(3) motion, which
established that defendants' status as "prevailing" parties
3
under the Fair Housing Act was due to fraud and prejudicial
discovery misconduct by them and their counsel, knowingly
underwritten by their insurer.
Factual Background
In August 1988, plaintiffs, two single Jewish women,
represented by counsel, brought this action under the Fair
Housing Act of 1968 (CA-1) and the New York State Human
Rights Law to redress prohibited housing discrimination on
the basis of sex, religion, and marital status in connection
with their purchase of a cooperative apartment. Joining them
as co-plaintiff was their seller2, who at the time of plaintiffs'
purchase contract was president of the Co-Op's board of
directors. The co-plaintiff was represented by counsel of his
own.
As recognized in the District Court's Opinion denying
summary judgment to the defendant Co-Op (CA-27), but
unmentioned in its Opinion awarding counsel fee/sanctions to
defendants (Br. 22-23; R. Br. 11), a document entitled
"Guidelines for Admission" ("the Guidelines") was central to
plaintiffs' case. The Guidelines-part of an admissions
package disseminated to prospective purchasers, including
plaintiffs (A-87)—were explicitly intended for "applications
involving minorities or single women" and called upon the
Co-Op "to a rticu la te its valid reasons for
rejection...contemporaneously with the making of the decision
to reject..." (CA-27).
Exhibits to plaintiffs' complaint documented the fact
that the Co-Op had failed and refused to provide plaintiffs
with "contemporaneous reasons" for rejection of their
purchase application (Ex. "D") and, thereafter, gave reasons
which plaintiffs documented to be false and pretextual (Ex.
As used hereinafter, the word "plaintiffs" refers to the
Sassower plaintiffs only. The seller was permitted to withdraw before
completion of discovery, over plaintiffs' objections.
4
which plaintiffs documented to be false and pretextual (Ex.
"F"). Plaintiffs' written request for reconsideration based on
such proof was denied by the Co-Op, again without reasons
(Ex. "G").
After service of plaintiffs' complaint, defendants
denied the existence of the Guidelines (A-85-6), variously
claiming that the Guidelines were not disseminated and, if
disseminated (A-87), that such dissemination by the managing
agent was without their knowledge and unauthorized (A-149-
153) and, in any event, that the Guidelines had not been
adopted (A-143) and, if adopted in the past (A-150), not
adopted by the particular Co-Op board members who rejected
plaintiffs' purchase application (A-142-3).
Defendants similarly disavowed other relevant Co-Op
policies and procedures, which the co-plaintiff seller, as a
member of the Co-Op board since its inception and its
president for several years thereafter, had identified to exist
(A-162). In face of such denials, pre-trial discovery was
critical to proving the facts of plaintiffs' case, as well as to
impugn defendants' credibility as to their pretextual defenses.
Plaintiffs' Rule 60(b)(3) motion detailed a pattern of
concerted discovery misconduct by defendants and their four
separate defense counsel. That motion, seeking relief as well
under the court's inherent power, was fully documented by:
(a) deposition transcripts showing defendants' admissions and
refusals to answer critical questions; and (b) defendants'
responses, signed by their counsel, to plaintiffs' document
demands.
Through such documentation, plaintiffs established
that defendants had deliberately destroyed and withheld
material information and documents, including:
(a) information relating to the adoption and
dissemination of the Guidelines (Br. 17, 52-53;
R. Br. 21-21-2, 26; A- 85-7; A-143, A-280)
5
(b) statistical data as to the number of Board-
approved purchasers of apartments in the Co-
Op who were Jews and/or single women (Br.
17, 24, 52, A-210-215);
(c) completed purchase applications of all
apartment purchasers in the Co-Op (Br. 16-
17, 52, fn. 47.; R. Br. 26).
Plaintiffs also showed that the Magistrate, sua sponte.
had closed discovery immediately following their successful
Rule 37 motion against one defendant and his counsel and
that the District Court refused to adjudicate plaintiffs' timely-
filed Objections thereto, documenting the similar discovery
misconduct of the other defendants and their counsel. Such
Objections, supported by deposition extracts, were
uncontroverted (Aff. A-Part 2: pp. 4-13).
As a result, plaintiffs were deprived of documents and
information essential to presenting their case to the jury,
which brought in an adverse verdict-including a special
finding that the Guidelines had not been adopted (R. Br. 26,
AA-272).
The defense misconduct documented by plaintiffs'
60(b)(3) motion was additionally asserted as an "unclean
hands defense" in opposition to the four separate pending
post-trial fee applications of defense counsel-which plaintiffs
challenged in all respects by a fully documented paragraph-
by-paragraph rebuttal, set forth as part of their Rule 60(b)(3)
motion. Plaintiffs' showed that such fee applications,
unsupported by corroborating affidavits of the defendants or
their insurer3 or by contemporaneous time records, were
factually false and perjurious, as well as legally frivolous.
Such lack of documentation included the failure of counsel
for the defendant Co-Op to in any way substantiate his claim that the
$100 per hour rate he had received from the insurer was only "partial"
payment-leaving a "balance due of $150.00 per hour" (AA-17).
6
Based thereon, plaintiffs requested Rule 11 sanctions (7/1/91
Notice of Motion).
As a threshold issue in opposition to defense counsel's
fee applications, plaintiffs objected that the insured
defendants, whose defense costs had been fully paid by State
Farm, were not the "real parties in interest" and that the
insurer was a "necessary party". Plaintiffs pointed out that
defense counsel made no claim to be acting on the insurer's
behalf and that they and/or the defendants were seeking a
"windfall" for themselves (Memos of Law: 5/16/91, 7/1/91).
Plaintiffs also sought sanctions against State Farm for
knowingly financing a defense strategy of discovery
misconduct (7/1/91 Notice of Motion; Aff. A-Part 2: p. 4;
Aff. C: p. 2; Aff. D: p. 2). This included their payment of
the cost of defending against plaintiffs' aforesaid successful
Rule 37 motion, as well as the $8,000 sanction which the
Magistrate awarded thereunder to plaintiffs (Aff. D: p. 21-3).
Defendants did not respond either in defense of their
fee applications or in opposition to plaintiffs' motion for
sanctions and 60(b)(3) relief and offered no documentation as
counter-proof. Three of the defense law firms defaulted
entirely, with the fourth, counsel for the Co-Op, submitting
a five-page affirmation refusing to respond (Br. 32-3).
Although plaintiffs served copies of their Rule
60(b)(3) motion on the non-party State Farm, giving it notice
of their "real party in interest" objection to the insured
defendants' fee applications (A-82-3), State Farm expressly
"decline[d] to become a party..., intervene or appear" (A-81).
It likewise "declined[dj" to produce documentation as to its
contractual arrangements for legal defense and payments for
same (A-81). The District Court denied plaintiffs' request for
a "so-ordered" subpoena of State Farm's records and an
"evidentiary hearing" (A-80, 84).
The Opinion o f the District Court
The District Court summarily denied plaintiffs'
jurisdictional objections based on "real party in interest"
7
(Rule 17(a)) and "necessary party" (Rule 19).
Without addressing plaintiffs' uncontroverted factual
rebuttal to defendants' fee applications or plaintiffs' "unclean
hands" defense thereto, the District Court summarily granted
an award of nearly $100,000 as counsel fee/sanctions "to be
paid directly to the defendants" (CA-50). Plaintiffs'
uncontroverted Rule 60(b)(3) motion was summarily denied.
The District Court granted the award to defendants
under the Fair Housing Act (CA-32-33), as amended after the
action was commenced-the amendment no longer limiting
fee awards to "a prevailing plaintiff" (CA-1). The counsel
fees awarded were "lump-sums", rather than "lodestar"
calculations, without specification of: (a) the number of hours
for which defense counsel was being compensated; (b) the
rates therefor; (c) the reasonable or market value of the
services rendered; or (d) the necessity of the alleged services
(CA-50-52). Nor was any determination made by the Court
as to the respective financial abilities of the parties.
Liability for the $92,000 fee award under the Fair
Housing Act was not assessed against plaintiffs' seller, an
original co-plaintiff to the action (CA-48).
The District Court devised alternate fee-shifting
awards against plaintiffs "on the possibility that the awarding
of attorneys' fees to the prevailing party pursuant to the Fair
Housing Act is not upheld on appeal" (CA-52). Such
alternate awards, also without any hearing prior thereto,
consisted of $50,000 under Rule 11, uncorrelated to defense
costs of any alleged Rule 11 violation4, and $42,000 under 28
4 Notwithstanding that the District Court cited Business
Guides v. Chromatic Communications. 498 U.S. 533 (1991), its Opinion
made the following statement as to its Rule 11 award:
These sanctions are not directly connected with the fees
expended by the defense attorneys nor can they be
prorated in that fashion. We find that the appropriate
sanction against the plaintiffs for commencing and
prosecuting this meritless litigation is the sum of
8
U.S.C. §1927, uncorrelated to "excess costs" for any alleged
violation thereunder (CA-52-53). Taken together, the Rule 11
and 28 U.S.C §1927 sanction awards were in the identical
$92,000 sum as the counsel fees awarded by the District
Court's award under the Fair Housing Act5.
Expressly absolved from liability for such alternate
awards were all counsel who had represented plaintiffs during
the litigation and who had signed the complaint (which
plaintiffs had not) and other documents (CA-36-37, 43-45).
In assessing the entire $92,000 fee sanction solely against
plaintiffs, the District Court made no differentiation between
them as to their separate liability based on individual
culpability (CA-35-36, 42-43).
The District Court noted that to the extent plaintiffs'
conduct was not sanctionable under Rule 11 and §1927, such
conduct-which was not specified-could be sanctioned under
inherent power, citing Chambers v. Nasco. ____ U .S ._____,
111 S.Ct. 2123 (1991) (CA-36, 41). It did not state,
however, that it was invoking its inherent power, and defense
counsel made no request for such relief in their motion papers
(AA-1, AA-70, AA-95, AA-146).
The District Court's Opinion, sua sponte. incorporated
false and defamatory dehors-the-record hearsay matter not
presented before it either by counsel or the parties
concerning, inter alia, plaintiff Doris Sassower (see,
particularly, fn. 11, fn. 13 (CA-38-39, 42). This was done
without notice to plaintiffs or opportunity to be heard with
respect thereto6.
$50,000. (CA-52)
The award under the Fair Housing Act included an
additional $1,350 for "expenses", which is not a component of the
alternate Rule 11 and §1927 awards.
Included in the Appendix hereto is the Martindale-Hubbell
listing of Doris L. Sassower, which was part of the record before the
District Court (CA-57-59).
9
The Judgment entered by the District Court (CA-23-
24) was based solely on its award under the Fair Housing
Act, its decretal paragraphs directing payment to the various
defendants in accord with the allocations made thereunder
(CA-50-52). No decretal directions were made for payment
in accordance with the allocation provisions of the alternate
Rule 11 and §1927 awards to the various defendants which
were in markedly different amounts (CA-52-53)7.
Appeal to the Circuit Court
Before perfecting their appeal, plaintiffs moved before
the Court of Appeals to vacate the fee award based on their
jurisdictional objections that the insured defendants were not
the "real parties in interest" and that the insurer was a
"necessary party" (11/27/91 motion, pp. 7-10) (Br. 42-3)
(Reply Br. 2-8) (CA-22). Rather than adjudicating that
motion, the Court of Appeals referred it "to the panel that
will hear the appeal" (CA-22). This necessitated plaintiffs'
prosecution of their appeal.
Plaintiffs' appellate brief contended and documented
that:
...the district court's findings and conclusions
are so unsubstantiated and actually disproven
by the Record, and its legal positions so
aberrant, illogical and unjust that they are
explicable only as a reflection of its hostility
and bias toward Plaintiffs. (Br. 2)
To the defendant Co-Op, the alternate award is $45,000 as
compared to $50,850 awarded under the Fair Housing Act; to defendant
Hale, the alternate award is $15,333 as compared to $12,500; to defendant
Esposito, the alternate award is $15,833 as compared to $18,000; to
defendant DeSisto Management, the alternate award is $15,833 as
compared to $12,000.
10
Plaintiffs further argued that the District Court's sua sponte
reliance on false and defamatory dehors-the-record material
was itself so violative of due process as to mandate reversal
as a matter of law (Br. 54 and errata sheet).
Plaintiffs' Reply Brief documented that defense
counsel's inadequate and unsubstantiated appellate submission
entitled plaintiffs to Rule 11 sanctions and costs (R. Br. 1-2,
19).
The NAACP Legal Defense and Educational Fund's
amicus brief supporting plaintiffs' appeal argued that a fee
award against plaintiffs was not sustainable under any theory
of liability-regardless of whether the 1988 amendment to the
Fair Housing Act was retroactive (LDF Br. 3). On the issue
of discovery, the crucial importance of which was the
gravamen of plaintiffs' Rule 60(b)(3) motion, the amicus
stated:
Virtually all intentional discrimination cases
share certain characteristics in terms of the
locus of evidence and actual knowledge of the
motives of the charged party...virtually all
relevant evidence, particularly documentary, is
in the possession of the defendant. (LDF Br.
4)
The Opinion o f the Circuit Court
The Court of Appeals summarily denied, without
reasons or citation of law, plaintiffs' jurisdictional motion to
vacate the fee award (CA-22).
Its Opinion did not cite a single reference to the
factual record independent of the District Court's Opinion.
Included by the Circuit Court was the same false and
defamatory dehors-the-record material that had been
incorporated by the District Court, with further false and
defamatory dehors-the-record matter, added sua sponte by the
11
Circuit Court8. None of plaintiffs' arguments were identified
or discussed. Instead, they were cumulatively dismissed in
a single catch-all statement as "totally lacking in merit" (CA-
18).
The Circuit Court affirmed the Judgment against both
plaintiffs as to liability, albeit it could not sustain the fee
award under the Fair Housing Act because:
...the plaintiffs' suit adequately alleged the
elements of a prima facie case of
discrimination and presented a factual dispute
for the jury as to whether the plaintiffs had
proven that the defendants' articulation of non-
discriminatory reasons was pretextual...There
is no finding that the plaintiffs did not believe
that they had been the victims of
discrimination. Moreover,...there is no finding
that the plaintiffs' had given a false account of
the basic facts alleged to support an inference
of discriminatory motive. Nor is this a case
where the trial judge expressed the view that
no reasonable jury could have found in
plaintiffs favor but reserved ruling on a
motion for a directed verdict and submitted the
case to the jury simply to have a verdict in the
event that a court of appeals might have
disagreed with his subsequent ruling to set
aside a plaintiffs' verdict, had one been
returned... (CA-13)
At the outset of its Opinion (CA-8), the Circuit Court
refers to a New York Law Journal headline, "Attorney Sanctioned by
Court of Appeals", the innuendo being that the attorney sanctioned was
the plaintiff herein, Doris Sassower. In fact, the attorney referred to by
that headline was not plaintiff, but someone totally unconnected with
plaintiffs and this matter.
12
Also rejected was the alternate Rule 11 award because
the District Court had failed to identify any offending
documents, as Rule 11 requires (CA-14). Rejected as well
was the District Court's §1927 sanctions award against the
non-lawyer plaintiff, Elena Sassower (CA-15-16).
Nonetheless, the Circuit Court kept the entire $92,000
monetary award intact, stating:
Judge Goettel explicitly relied...on his inherent
authority in the portion of his Opinion
awarding Rule 11 sanctions and...section 1927
sanctions... (CA-16) (emphasis added)
That statement was immediately followed by one
showing that the Circuit Court was relying on inference as to
what the District Court actually did:
We may reasonably infer that [the district
judge] intended to base the $50,000 portion of
the award, alternatively, on his inherent
authority, to whatever extent it was not
supportable by Rule 11, and to base the
$42,000 portion of the award, alternatively on
his inherent authority, in the event section
1927 was deemed inapplicable to Elena
Sassower. (CA-16-17) (emphasis added)
The Circuit Court did not identify what was being
sanctioned under the $50,000 figure, the former Rule 11
sanction award (CA-14, 16-17). Nor did it cite any conduct
by Elena Sassower warranting conversion of the §1927
liability against her to one under the court's inherent power
(CA-14-17).
The Circuit Court affirmed the District Court's §1927
sanction against plaintiff Doris L. Sassower, holding her
liable for an undefined portion of the $42,000 awarded
thereunder, which was uncorrelated to any specific
misconduct by her (CA-14-16). Like the District Court, the
13
Circuit Court made no distinction based on the fact that Doris
Sassower, although a lawyer, was for the most part
represented by counsel, upon whom such sanction was not
imposed.
Disregarding the District Court's omission of any
decretal provisions in the Judgment as to the different
amounts payable to the defendants under the alternate awards,
as compared to those under the Fair Housing Act award, the
Circuit Court "affirmed" the Judgment as against plaintiff
Doris Sassower, vacating it only as to amount with respect to
plaintiff Elena Sassower, as to whom the Judgment was
remanded for determination of her financial ability (CA-17-
19).
Also affirmed was the Circuit Court's denial of
plaintiffs' uncontroverted Rule 60(b)(3) motion, adopting the
identical conclusory language as the District Court9.
Petition for Rehearing and Suggestion for Rehearing En Banc
The Second Circuit denied plaintiffs' Petition for
Rehearing and Suggestion for Rehearing En Banc (CA-25).
While the Petition for Rehearing was pending, State
Farm moved to intervene before the District Court. The basis
for such belated application was State Farm's claim that
defense counsel were refusing to turn over to the insurer the
proceeds of the counsel fee sanctions award that the District
Court had directed plaintiffs to pay "directly to the
defendants" (CA-50). Plaintiffs, therefore, moved before the
Circuit Court to expand the appellate record to include this
further proof that defendants' fee applications were not made
on behalf of the insurer as the "real party in interest". The
Circuit Court summarily denied that motion (CA-26).
The Circuit Court repeated almost verbatim (CA-18) the
misstatement of the District Court (CA-53), inter alia, that plaintiffs' Rule
60(b)(3) was supported by ''a thousand pages of exhibits". In fact, the
motion was supported by 69 discrete exhibits totalling fewer than 300
pages.
14
REASONS FOR GRANTING THE WRIT
Inherent power, as expanded by the Second Circuit,
has not only injured the civil rights plaintiffs, who were
thereby made the victims of a gross injustice, but directly
impacts on all federal litigants and their lawyers. No longer
can they rely on rules and statutes, whose standards provide
protection from the undefined discretion and vagaries of
individual judges.
What is here involved is so extreme a misapplication
of existing rules and statutory provisions as to be a
compelling catalyst for remedial action to define and limit
inherent power.
This case is a microcosm of the very issues now under
study by this Court in connection with the proposed
amendments to the Federal Rules of Civil Procedure-Rule
11, discovery, and case management. Those proposed
amendments are the product of hundreds of written comments
from the bench, bar, and public over a three-year period and
of public hearings. Yet, as this case illustrates, the enormous
effort expended in the rule-making process is all for naught
if inherent power is to be a "fall-back" for federal courts
unwilling to adhere to the text-based requirements of those
rules, amended or not.
This case is the right vehicle for this Court to define
the interface of inherent power and rule and statutory
provisions—the issues being clear, unobstructed and ripe for
resolution.
The need for this Court's authoritative voice is
highlighted by the Advisory Committee Notes to the proposed
amendments, which refer to Chambers v. Nasco. supra, and
G. Heileman Brewing Co.. Inc, v. Joseph Oat Corp.. 871 F.2d
648 (7th Cir. en banc 1989) (at 58, 71). Those two opinions
are so sharply divided on the subject of inherent power that
15
they cannot serve as guide to the lower courts10. Together
with the Advisory Committee Notes' citation to Willy v.
Coastal Corp. . ____ U.S. _____ , 112 S.Ct. 1076 (1992), (at
55), those cases only add to litigation-producing confusion.
It is the unrestricted use of inherent power by the
Second Circuit, purportedly relying on Chambers, that has
generated the alarming precedent which plaintiffs here seek
to have reviewed. It is one confirming Justice Kennedy's
worst fears, as expressed in his Chambers dissent.
This case also offers a context for this Court to
implement the spirit of the "Resolution on Bias in the Federal
Judiciary", recently adopted by the Judicial Conference,
which recognizes that "bias...presents a danger to the effective
administration of justice in the federal courts" Report of the
Proceedings of the Judicial Conference of the United States.
September 22, 1992. The District Court's hostility to
plaintiffs' efforts to obtain critical documents and information,
essential to proving their discrimination cause of action,
coupled with its failure to follow or even cite this Court's
guidepost decision of Christiansburg Garment Co. v. EEOC.
434 U.S. 412 (1978), setting forth the standards of fee awards
to defendants in civil rights actions, confirms the need to
"sensitize" the federal judiciary as to civil rights. A
resounding decision from this Court on that subject can do
more, far quicker, than educational programs which do not
have the force of "the law of the land".
The civil rights issues in this case are of broad
national concern, additionally affecting federal rights under
all fee-shifting statutes. The retroactivity issue herein is "the
10 The need for greater clarity in the Chambers and Heileman
decisions has been the subject of numerous law review articles. As to
Chambers, see particularly, Harvard Law Review. Vol. 105 (Nov. 1991),
349-360; Nova Law Review. Vol. 16 (1992), 1527-1566; Tulane Law
Review. Vol. 66 (1991), 591-603; also Baylor Law Review. Vol. 43
(1991) at 652-654, 669-670. As to Heileman. see particularly, Indiana
Law Journal. Vol. 66 (1991), 977-998; John Marshall Law Review: Vol.
23 (1990), 518-535.
16
other side of the coin" to cases now on this Court's docket
involving the 1991 amendments to the Civil Rights Act.
Rivers v. Roadway Express. #92-938; Landgraf v. U.S.I. Film
Industries. 92-757; Johnson v. Uncle Ben's. 92-737; Kuhn v.
Island Creek Coal Co.. 92-787, all pending decision on
certiorari applications. This case also is relevant to an issue
presented by a case already granted certiorari, Columbia
Pictures v. Professional Real Estate Inv.. #91-1043, involving
attorney fees for alleged sham litigation.
POINT I
The Judicial Remedy Of Fee-Shifting Under
Inherent Power Is Barred By Retroactivity
And Preemption
The legislative background and the statutory language
of civil rights laws, in general, and the Fair Housing Act of
1968, in particular, show that Congress' intent in adopting
fee-shifting provisions was to encourage private enforcement
in furtherance of our national commitment to a
discrimination-free society.
The history of the Fair Housing Amendments Act of
1988 shows that its overriding purpose was to broaden the
law and to strengthen its private enforcement11. The change
in its attorney-fee provision made it uniform with other civil
rights laws in effect, which by then had given the term
"prevailing party" a settled judicial interpretation, not
inconsistent with Congress' purpose. Legislative History of
the Fair Housing Amendments Act of 1988. House Report
No. 100-711.
That interpretation is found in the seminal case of
Christiansburg Garment Co. v. EEOC., supra, which held that *
The amendment not only extended coverage to the
handicapped and families with children, but removed the $1,000 cap on
punitive damages. 42 U.S.C. §3613(c) (CA-1).
17
fee-shifting against civil rights plaintiffs could only be
sustained when the action was "frivolous, unreasonable, or
without foundation", supra, at 421.
Neither the express language of the Fair Housing
Amendments Act of 1988, nor its contextual background,
supports any view that Congress intended to impose a greater
fee liability upon civil rights plaintiffs than existed prior to its
enactment. By reason of the settled judicial interpretation of
Christiansburg. defining the fee-shifting liability of plaintiffs
suing thereunder, the Fair Housing Amendments Act of 1988
should be deemed to have completely and preemptively
expressed congressional intent to exclude any award to
defendants under inherent power, even were the fee provision
to be retroactively applied.
Research has failed to find a single case, before or
after 1988, in which a federal court has resorted to inherent
power to shift a totality of litigation fees against losing civil
rights plaintiffs, where, as here (CA-13), the action was found
not to be "meritless" under the standards of Christiansburg.
In Christiansburg. which involved a Title VII
"prevailing party" fee provision, this Court intimated the
validity of the preemption argument where the statutory fee
provision limited the remedy to a "prevailing plaintiff":
[h]ad Congress provided for attorney's fee
awards only to successful plaintiffs, an
argument could have been made that the
congressional action preempted the common-
law rule, and that, therefore, a successful
defendant could not recover attorney's fees
even against a plaintiff who had proceeded in
bad faith. Id., fn. 13.
The case at bar thus presents this Court with the
precise situation posited in Christiansburg.
Indications of this Court's view that preemption would
preclude an inherent power fee award where a statute is
involved may also be gleaned from Fleischmann Distilling
18
Corp. v. Maier Brewing Co.. 386 U.S. 714 (1967)12. A
dispositive decision by this Court on the preemption
"argument" would guide the lower courts on this still-open
and recurring issue. Transmission Parts Corp. v. Aiac. 768
F.2d 1001 (9th Cir. 1985)13.
Relying on Chambers, the Second Circuit has
effectively held that the statutory remedy and the
Christiansburg standards may be disregarded and
circumvented by inherent power. It is for this Court "to
make more certain" whether Chambers authorizes such use of
inherent power.
Chambers did not involve a fee-shifting statute, such
as the 1988 Fair Housing Act. Moreover, in Chambers, the
District Court directly used its inherent power to fee-shift,
rather than, as here, where the District Court made its
primary award under the fee-shifting provisions of the 1988
Fair Housing Act, which it retroactively applied to favor
defendants. Indeed, even in devising a fail-back scheme of
alternative awards under Rule 11 and §1927, the District
Court did not reach out to its inherent power.
The Second Circuit's use of inherent power to
accomplish indirectly what the District Court did not do
directly marks a dangerous expansion of such power at the
expense of civil rights. Draconian penalties, such as visited
upon litigants whose case the Circuit Court itself found
meritorious (CA-13), will do more than "chill" civil rights
advocacy, it will "kill" it.
The decision herein not only defeats the intent of
Congress, as expressed in civil rights laws, and nullifies this
Fleischmann held that attorneys' fees under a federal
statute not providing for a fee award could not be awarded under inherent
power because the statutory remedy is intended to circumscribe "the
boundaries" of monetary relief in cases arising thereunder.
13 Transmission rose after the federal statute involved in
Fleischmann had been superseded by an attorney fee provision. It
reflected, but did not resolve, the preemption issue.
19
Court's intent in Christiansburg. but constitutes a sub silentio
judicial repudiation of the "American Rule" against
substantive fee-shifting.
POINT n
The Use Of Inherent Power To Uphold
Deficient Fee-Shifting Awards Under Rule
11 and 28 U.S.C. §1927 Violates Standards
of Those Provisions, The Rules Enabling
Act, And The Constitutional Separation of
Powers
The Second Circuit's transformation of the District Court's
admittedly uncorrelated $50,000 Rule 11 award and $42,000
§1927 award (CA-52-53) into "free-standing" liabilities,
sustainable under inherent power, represents so far a
departure from law, logic, and justice as to mandate this
Court's "power of supervision".
The intent to accomplish substantive fee-shifting by
inherent power is reflected by the Judgment the Second
Circuit affirmed (CA-23-24), which provided for awards to
the various defendants according to the District Court's Fair
Housing Act allocations, rather than the arithmetically
diverging allocations under its Rule 11 and §1927 awards
(see fn. 7 herein)14.
The Rule 11 and §1927 awards, although denominated
as "sanctions", are in reality the substantive fee-shifting
proscribed by those provisions. The Second Circuit's use of
inherent power to validate the District Court's circumvention
of the plain language of those sanctioning provisions is a
violation of the Rules Enabling Act, the constitutional
14 Plaintiffs submit that by reason of the discrepant monetary
amounts payable to the various defendants under the alternate awards not
embodied in the Judgment, the Judgment became void eo instante at the
point where the Second Circuit rejected the District Court's award under
the Fair Housing Act.
20
separation of powers, and an open defiance of this Court.
Business Guides, supra.
In fashioning an inherent power expedient to salvage
the District Court's defective awards under the Fair Housing
Act, Rule 11, and §1927, the Second Circuit has nullified the
standards and limitations of those provisions, disregarding the
case law related thereto of the Second Circuit itself, Oliveri
v. Thompson. 803 F.2d 1265 (2nd Cir. 1986) and Browning
Debenture Holders' Committee v. Dasa Corp.. 560 F.2d 1078
(2nd Cir. 1977). Those bedrock cases lay down stringent
standards based on "a high degree of specificity" in factual
findings so as to fix personable responsibility for culpable
acts. As recognized by Business Guides, supra-decided less
than a half year before the District Court's decision—such
personal responsibility is "non-delegable"15.
The District Court's Rule 11 award did not identify a
single document-let alone one signed by either plaintiff—that
was false or unfounded, factually or legally. It was,
therefore, illogical for such an award to be sustained under
inherent power which, unlike Rule 11, additionally requires
a "bad-faith" predicate.
Similarly, the District Court's §1927 award did not
identify M y offending conduct by plaintiff Elena Sassower at
all. Since the Second Circuit, likewise, did not identify any
such conduct—the threshold finding that had to be made—her
status as a non-lawyer was irrelevant.
As to Doris Sassower, her status as a lawyer was
irrelevant to periods when she was represented by counsel.
Yet that, too, was irrelevant, since the District Court had
15 The Advisory Committee Notes to the present Rule 11 (97
F.R.D. 199) indicate that the court has "discretion to take account of the
special circumstances that often arise in pro se situations. See Haines v.
Kerner. 404 U.S. 519 (1972)." The decisions of the District Court or the
Circuit Court show that no discretion was exercised in plaintiffs favor by
reason of the normal and customary solicitude afforded to pro se litigants.
Plaintiffs, in fact, were held to a hieher standard than their attorneys, who
were the signators of the complaint and other documents.
21
failed to identify any conduct on her part, either when she
was pro se or represented by counsel, which "multiplie[d] ...
proceedings ... unreasonably and vexatiously". Since, in
addition, there were no "costs, expenses, and attorneys' fees"
identified by the District Court as relating to such
unidentified "proceedings"—let alone any that were "excess"
and "reasonably incurred", the award under §1927, which the
Second Circuit approved against Doris Sassower, fell
abysmally short of the clear standards of that statutory
provision as well.
The Second Circuit dispensed even with the standards
of fee-shifting under inherent power, predicated on findings
of "necessity" and "bad-faith".
The fact that the Second Circuit's only citation for its
use of inherent power is Chambers realizes the forebodings
of Justice Kennedy's dissent that inherent power would be
more than interstitial and would, in the absence of
definitional limits, supplant perfectly adequate rule and
statutory provisions.
The fundamental question as to the interface of
inherent power with rules and statutes was not resolved in
Chambers, which further did not address the issue squarely
raised in this case as to whether inherent power can be used
as a "fail-back" by a Circuit Court or District Court. That
issue was explicitly left open in this Court's recent decision
in Willy v. Coastal Corp. . ____ U.S.____ , 112 S.Ct. 1076, at
fn. 5 (1992).
POINT in
Inherent Power, As Applied By The Second
Circuit, Volates Fundam ental Constitutional
Rights. And Decisional Law Of This Court
A. The Fifth Amendment: Due Process
The Second Circuit, purporting to rely on Chambers,
disregards its underlying due process premise: "A
22
Court...must comply with the mandates of due process, both
in determining that the requisite bad faith exists and in
assessing fees" Id., at 2136.
The Chambers majority twice approved the lower
court's specific finding that "the requirements of due process
have been amply met...", Id., at 2130, 2139, citing Nasco. Inc,
v. Calcasieu Television and Radio. 124 F.R.D. 120, at 141,
fn. 11.
The elements of due process afforded to Chambers
included: (a) notice that an award under inherent power was
being sought by the adverse party; (b) a hearing; and (c)
detailed factual findings.
In this case, none of those basic due process
prerequisites exist. Nor was there any finding by either the
District Court or the Second Circuit that they had been. This
is particularly significant since plaintiffs repeatedly raised the
issue that their due process rights had been violated, unlike
the situation in Chambers, where the lower court expressly
found that "due process has never been an issue" (Id., at fn.
11).
It is a principle long recognized that "A fair trial in a
fair tribunal is a basic requirement of due process". In Re
Murchison. 349 U.S. 133, 136 (1955), cited in Holt v.
Virginia. 381 U.S. 131, 136 (1965), Withrow v, Larkin. 421
U.S. 35 (1935). By admission of the District Court, plaintiffs'
"bias recusal motions" formed a basis for its fee award (CA-
37). Yet, there was no finding by either the District Court or
the Second Circuit that such motions were false, unfounded,
or made in bad faith. As this Court made clear in Holt.
supra, at 136, the right "to escape a biased tribunal" is itself
a due process right, which may not be penalized under
inherent power by a fine in reprisal for making a recusal
motion grounded on judicial bias.
The result of this wholesale denial of due process is
a judgment "so totally devoid of evidentiary support as to
render [it] unconstitutional under the Due Process Clause...".
Cf.. Garner v. State of Louisiana, supra. 368 U.S. 157, 163
(1961); Thompson v. City of Louisville. 362 U.S. 199 (1960).
23
The factual record shows rw sanctionable conduct by
plaintiffs which could support an award of punitive sanctions
against them. Nor was there any.
The due process requirements, seemingly clear in
Chambers, are muddied by its reliance on Link v. Wabash
Railroad Company. 370 U.S. 626 (1962), a case this Court
also cited in Roadway Express. Inc, v. Piper. 447 U.S. 752
(1980). Chambers, supra, at 2133, like Roadway, supra, at
765, cited Link for the proposition that fee-shifting under a
court's inherent power is permissible as a "less severe"
sanction than dismissal of a complaint, authorized by the four
judge majority in Link. However, a focal issue in Link was
denial of due process, which the three Link dissenters found
to have been violated. Thus, there is a serious inconsistency
between Chambers and Roadway on one hand, which require
due process for the "less severe" sanction of fee-shifting, and
Link, which dispenses with the requirement of due process
for the more severe sanction of dismissal of a complaint.
Such irreconcilable decisions have fostered confusion in the
Second Circuit as to the due process standards applicable to
inherent sanctioning power-and necessitates clarification by
this Court.
Plenary review by this Court is thus essential to
clarify the due process concomitants of inherent sanctioning
power as to which Link. Roadway Express, and Chambers are
in direct, apparent, and intolerable conflict.
B. The Seventh Amendment: Trial By .Tun’
The precise question of whether a fee-shifting award
may be made under the Fair Housing Act against
unsuccessful civil rights plaintiffs without affording them the
right to a jury trial on the issues of their liability and amount
has not been decided by this Court.
The District Court denied such right when it awarded
a substantial monetary amount under the Fair Housing Act,
viewing this Court's decisions in Tull v. United States. 481
U.S. 412 (1987) and Lytle v. Household Manufacturing. Inc..
24
494 U.S. 545 (1991) as contrary, if not irrelevant, to the right
asserted by plaintiffs (CA-31).
Nearly twenty years ago, in Curtis v. Loether, 415
U.S. 189, 193 (1974), this Court recognized the Seventh
Amendment right to jury trial in actions for damages under
the Fair Housing Act, analogizing such statutorily-created
causes of action to "suits at common law". See also,
Legislative History of the Fair Housing Amendments Act,
H.R. 1158; House Report No. 100-711.
In both Tull which relied on Curtis, and in Lytle, this
Court reaffirmed the right to jury trial in cases arising under
other fee-shifting statutes. In creating a cause of action for
attorneys' fees under fee-shifting statutes, such common-law
legal remedy based on traditional criteria as to "reasonable
value" of legal services, should likewise trigger Seventh
Amendment legal rights. This is particularly true, where, as
here, the issues of liability and amount of any fee award are
vigorously contested, and where the outcome of the fee issues
inevitably impact on future civil rights actions.
POINT IV
The Circuit Court's Use Of Equitable
Inherent Power Is Unrestrained By
Equitable Considerations Of "Unclean
Hands" And "Unjust Enrichment"
It is a time-honored principle that "he who comes into
equity must come with clean hands". Keystone Driller Co.
v. General Excavator Co. 290 U.S. 240, 245 (1933).
"The equitable powers of this court can never
be exerted in behalf of one who has acted
fraudulently, or who by deceit or any unfair
means has gained an advantage. To aid a
party in such a case would make this court the
abetter of iniquity" Id., 247, citing Bein v.
Heath. 6 How. 228.
25
Yet, the Court of Appeals disregarded the adjudicated
discovery misconduct on the part of one of the defendants
and his counsel (A-241-266), which was of a nature sufficient
to have precluded any fee award to that insured defendant,
and disregarded the uncontroverted proofs in plaintiffs' Rule
60(b)(3) motion showing the complicity of the other
defendants and their counsel prima facie, if not conclusively,
in such misconduct, as well as other discovery misconduct of
their own (Br. 31-33).
Moreover, since the insured defendants paid no
defense costs, it was their burden to show facts establishing
that the fees sought would not be a "windfall", precluded
under controlling law. Nonetheless, the defendants not only
failed to provide any, documentation to meet their burden16,
they did not even claim an intention, let alone an obligation,
to make the insurer the ultimate beneficiary of the fee award.
The identity of the ultimate recipients of the fee
award-and their equitable entitlement thereto-should have
been, but was not, a threshold issue for adjudication by the
16 That burden, inter alia, also required defense counsel for
the Co-Op to document his claim that he was entitled to be paid an hourly
rate of 150% more than the hourly rate paid by the insurer (AA-17). The
district court accepted his claim to an increased entitlement, relying on its
citation to a "contingent retainer" case (CA-30-31, 50-51)—even though
defense counsel never claimed to have had a "contingent retainer".
Moreover, in affirming the Judgment (CA-23-24), the Circuit Court
disregarded City of Burlington v. Dague. ____U.S.____ , 112 S.Ct. 2638
(1992), rendered a month and a half earlier and reiterating that fee awards
are governed by the "lodestar" approach to achieve a "reasonable" fee, not
the contingent retainer model. No "lodestar" was employed by the District
Court.
The Circuit Court also disregarded its own controlling case of
New York Association for Retarded Children v. Carey. 711 F.2d 1136,
1147 (1983) (Newman, J.), holding that "contemporaneous time records
are a prerequisite for attorney's fees in this Circuit". Notwithstanding that
the District Court explicitly referred to plaintiffs' objection on this ground
in its Opinion (CA-51), it failed to make a finding on that subject, as did
the Circuit Court, whose Opinion in the case at bar was by the same
"Newman, J", as authored Carey.
26
Second Circuit17.
POINT V
The Second Circuit's Discriminatory Use of
Inherent Power Raises Serious And
Substantial Questions As To Denial Of
Equal Protection Of Law
The Second Circuit's decision highlights the
invidiousness of inherent power: invoked, sua sponte, against
civil rights plaintiffs to sustain fee-shifting sanctions, without
any finding or even claim of fraud on their part, but not
invoked in their favor where plaintiffs specifically moved
under inherent power, as well as under Rule 60(b)(3), against
defendants, whose fraudulent statements and conduct were
established by plaintiffs' uncontroverted. unrebutted
supporting documentary proof.
Fraud upon a court has been the traditional basis for
invocation of inherent power-a historic origin recalled in
Chambers:
...'tampering with the administration of justice
in [this] manner...involves far more than an
injury to a single litigant. It is a wrong
against the institutions set up to protect and
Likewise an issue for equitable adjudication was the
financial ability of plaintiff Doris Sassower, upon whom the Circuit Court
placed the entire liability. Particularly since the Circuit Court noted that
Doris Sassower's "current status [as a member of the bar] is in some
doubt" (CA-8), it had a basis upon which to question whether that fact
might have some impact upon her financial ability to pay a $93,350
Judgment, plus, by reason of its affirmance thereof, the insured defendants'
costs on plaintiffs' appeal. Rather than speculating as to Doris Sassower's
financial resources, the Second Circuit should have applied its own cited
case of Faraci v. Hickev-Freeman Co.. 607 F.2d 1025, 1029 (2d Cir.
1979) (CA-17-18) equally to both plaintiffs
27
safeguard the public'. [Hazel-Atlas Glass Co.
v. Hartford-Empire Co.. 322 U.S. 238 (1944)],
at 246...a court has the power to conduct an
independent investigation in order to determine
whether it has been the victim of fraud.
[Universal Oil Products Co. v. Root Refining
Co.]. 382 U.S. [575 (1946)], at 580....
Chambers, at 2132
The District Court was presented with unrefuted
documentary evidence supporting plaintiffs' two separate
fraud claims involving "fraud, misrepresentation,
[and]...misconduct" by defendants and their counsel: one in
connection with the pre-trial discovery process; the other, the
filing of false and unfounded fee applications by insured
defendants, knowingly seeking a "windfall".
Apart from their formal Rule 60(b)(3) motion,
plaintiffs specifically invoked the District Court's inherent
power to reach these two fraud issues. The lack of any.
counter-proof to plaintiffs' specific factual allegations and
documentary evidence made the "power" to adjudicate such
fraud issues a "duty", Hazel-Atlas, supra, at 249-50, which
the lower courts were not free to shirk.
The insured defendants never disputed that they were
not "the real parties in interest"-either before the District
Court or the Circuit Court. Nor did they assert any
contractual duty or intention to reimburse their insurer. The
Second Circuit's summary denial of plaintiffs' motion to
vacate the Judgment disregarded the clear commands of Rules
17(a) and 19, and was in direct conflict with this Court's
decision in United States v. Aetna Casualty & Surety Co..
338 U.S. 366 (1949), as well as its own decision in
Brocklesby Transport v. Eastern States Escort. 904 F.2d 131,
133 (2d Cir. 1990).
Likewise, since defendants did not deny—either before
the District Court or the Circuit Court-their deliberate
suppression and destruction o f crucial discovery materials
and the substantial interference and prejudice to plaintiffs'
28
case caused thereby, the Second Circuit had no legal or
factual basis for affirming the District Court's summary denial
of plaintiffs' uncontroverted Rule 60(b)(3) motion, which
should have been granted as a matter of law. Anderson v.
Cryovac, Inc., 862 F.2d 910, at 926 (1st Cir. 1988), Rozier v.
Ford Motor Co.. 573 F.2d 1332 (5th Cir. 1978).
By the Second Circuit's use of equitable inherent
power to grant relief it should have denied and to deny relief
it should have granted, this case brings into sharp focus the
extent to which inherent power can be misdirected from its
original purpose. That purpose was to protect the integrity of
the judicial process, not to serve as a cloak for discriminatory
adjudications.
EPILOGUE
"Extraordinary" departures from fundamental law are
manifest from the face of the District Court and Circuit
Court's Opinions. Decisions which fail to provide "valid
reasons" for invoking inherent power, where standards of
applicable statute and rule provisions have not been met,
should be "presumptively suspect". When inherent power is
used to deny equal protection of laws, rather than to enforce
them, it is a time for the Supreme Court to intervene and, in
no uncertain terms, exert its "power of supervision".
29
CONCLUSION
Plaintiffs respectfully pray that their Petition for
Certiorari be granted; that the decision of the Second Circuit
be summarily reversed and the Judgment thereon vacated; and
that plaintiffs' Rule 60(b)(3) motion for a new trial and
sanctions be granted, as a matter of law.
Respectfully submitted,
DORIS L. SASSOWER
Petitioner Pro Se
283 Soundview Avenue
White Plains, New York 10606
(914) 997-1677
ELENA RUTH SASSOWER
Petitioner Pro Se
16 Lake Street, Apt. 2C
White Plains, New York 10603
(914) 997-8105
February 22, 1993
CA-1
CONSTITUTIONAL. STATUTORY. AND RULE
PROVISIONS
FAIR HOUSING ACT OF 1968
42 U.S.C. §3612 Enforcement bv private persons
(c) Injunctive relief and damages; limitation; court costs;
attorney fees. The court may grant as relief, as it deems
appropriate, any permanent or temporary injunction, temporary
restraining order, or other order, and may award to the plaintiff
actual damages and not more than $1,000 punitive damages,
together with court costs and reasonable attorney fees in the case
of a prevailing plaintiff: Provided, That the said plaintiff in the
opinion of the court is not financially able to assume said attorney's
fees.
FAIR HOUSING AMENDMENTS ACT OF 1988
42 U.S.C. §3613 Enforcement bv private persons
(c) Relief which may be granted. (1) In a civil action under
subsection (a) [Enforcement by Private Persons], if the court finds
that a discriminatory housing practice has occurred or is about to
occur, the court may award to the plaintiff actual and punitive
damages, and subject to section (d), may grant as relief, as the
court deems appropriate, any permanent or temporary injunction,
temporary restraining order, or other order (including an order
enjoining the defendant from engaging in such practice or ordering
such affirmative action as may be appropriate). (2) In a civil action
under subsection (a), the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee and costs. The United States shall be liable for such
fees and costs to the same extent as a private person.
CA-2
RULE 60
Relief From Judgment or Order
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, etc.
On motion and upon such terms as are just, the court may relieve
a party or a party's legal representative from a final judgment,
order, or proceeding for the following reasons: ...(3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; ...or (6) any other reason justifying relief from
the operation of the judgment. The motion shall be made within
a reasonable time, and for reasons (1), (2), and (3) not more than
one year after the judgment, order, or proceeding was entered or
taken. A motion under this subdivision (b) does not affect the
finality of a judgment or suspend its operation. This rule does not
limit the power of a court to entertain an independent action to
relieve a party from a judgment, order, or proceeding...or to set
aside a judgment for fraud upon the court...
RULE 11
Signing of Pleadings. Motions, and Other Papers: Sanctions
Every pleading, motion, and other paper of a party represented by
an attorney shall be signed by at least one attorney of record in the
attorney's individual name, whose address shall be stated. A party
who is not represented by an attorney shall sign the party's
pleading, motion, or other paper and state the party's address.
Except when otherwise specifically provided by rule or statute,
pleadings need not be verified or accompanied by affidavit. The
rule in equity that the averments of an answer under oath must be
overcome by the testimony of two witnesses or of one witness
sustained by corroborating circumstances is abolished. The
signature of an attorney or party constitutes a certificate by the
signer that the signer has read the pleading, motion, or other paper;
that to the best of the signer's knowledge, information, and belief
formed after reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good faith argument for the
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extension, modification, or reversal of existing law, and that it is
not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation. If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant. If a pleading,
motion, or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the
person who signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay to the other party or
parties the amount of the reasonable expenses incurred because of
the filing of the pleading, motion, or other paper, including a
reasonable attorney's fee.
28 U.S.C. §1927
Counsel's liability for excessive costs
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.
RULE 17
Parties Plaintiff and Defendant: Capacity
(a) Real Party In Interest. Every action shall be prosecuted in
the name of the real party in interest. An executor, administrator,
guardian, bailee, trustee of an express trust, a party with whom or
in whose name a contract has been made for the benefit of another,
or a party authorized by statute may sue in that person's own name
without joining the party for whose benefit the action is brought;
and when a statute of the United States so provides, an action for
the use or benefit of another shall be brought in the name of the
United States. No action shall be dismissed on the ground that it
is not prosecuted in the name of the real party in interest until a
CA-4
reasonable time has been allowed after objection for ratification of
commencement of the action by, or joinder or substitution of, the
real party in interest; and such ratification, joinder, or substitution
shall have the same effect as if the action had been commenced in
the name of the real party in interest.
RULE 19
Joinder of Persons Needed for Just Adjudication
(a) Persons to be Joined if Feasible. A person who is subject
to service of process and whose joinder will not deprive the court
of jurisdiction over the subject matter of the action shall be joined
as a party in the action if (1) in the person's absence complete
relief cannot be accorded among those already parties, or (2) the
person claims an interest relating to the subject o f the action and
is so situated that the disposition of the action in the person's
absence may (i) as a practical matter impair or impede the person's
ability to protect that interest or (ii) leave any of the persons
already parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of the
claimed interest. If the person has not been so joined, the court
shall order that the person be made a party. If the person should
join as a plaintiff but refuses to do so, the person may be made a
defendant, or, in a proper case, an involuntary plaintiff. If the
joined party objects to venue and joinder of that party would render
the venue of the action improper, that party shall be dismissed from
the action.
(b) Determination by Court Whenever Joinder Not Feasible.
If a person as described in subdivision (a)(l)-(2) hereof cannot be
made a party, the court shall determine whether in equity and good
conscience the action should proceed among the parties before it,
or should be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court include:
first, to what extent a judgment rendered in the person's absence
might be prejudicial to the person or those already parties; second,
the extent to which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the prejudice can be
lessened or avoided; third, whether a judgment rendered in the
CA-5
person's absence will be adequate; fourth, whether the plaintiff will
have an adequate remedy if the action is dismissed for nonjoinder.
28 U.S.C. §2072
Rules of procedure and evidence: power to prescribe
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure...for cases in the United States
district courts (including proceedings before magistrates thereof)
and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further
force or effect after such rules have taken effect.
FIFTH AMENDMENT TO THE U.S. CONSTITUTION
...nor shall any person...be deprived of life, liberty, or property,
without due process of law...
SEVENTH AMENDMENT TO THE U.S. CONSTITUTION
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved,
and no fact tried to jury, shall be otherwise re-examined in any
Court of the United States, than according to the rules of the
common law.
CA-6
U N I T E D S T A T E S C O U R T O F A P P E A L S
For the Second Circuit
------------ ------ ................... - ...................
N o . 9 5 4 — A u g u s t Term 1991
A rgued: February 2 8 , 1 9 9 2 D e c id e d : A u g u s t 13, 1 9 9 2
D o c k e t N o . 9 1 -7 8 9 1
♦
Elena ruth Sa sso w e r , D oris L. Sa sso w e r ,
Plaintiffs-Appellants,
— v.—
KATHERINE M. FIELD, CURT HAEDKE, LILLY HOBBY,
WILLIAM IOLONARDI, JOANNE IOLONARDI, ROBERT
RlFKIN, individually, and as Members of the Board of
Directors o f 16 Lake Street Owners, Inc., HALE
APARTMENTS, DESlSTO MANAGEMENT INC., 16
Lake Street Ow ners, in c ., Roger Esposito , in d i
v id u a l ly , and as an o f f i c e r o f 16 L a k e S tr e e t O w n e r s ,
Inc
Defendants-Appellees.
B e f o r e :
*
Lum bard , Newman and Winter,
Circuit Judges.
A p p e a l f r o m a s u p p le m e n t a l j u d g m e n t o f the D i s t r i c t
C o u rt for th e S o u th e r n D i s t r ic t o f N e w Y ork (G er a rd L.
CA-7
G o e t t e l , J u d g e ) r e q u ir in g pro se p la in t i f f s to p a y d e f e n
d a n t s ’ a t t o r n e y ’s f e e s an d e x p e n s e s o f $ 9 3 , 3 5 0 as a s a n c
t io n fo r the v e x a t i o u s c o n d u c t o f u n s u c c e s s f u l l i t i g a t io n
c l a i m i n g h o u s i n g d i s c r im in a t io n .
A f f i r m e d as to l i a b i l i t y , a f f ir m e d as to a m o u n t w i t h
r e s p e c t to D o r i s S a s s o w e r , and v a c a t e d and r e m a n d e d as
to a m o u n t w ith r e s p e c t to E le n a S a s s o w e r .
------- --♦ --------
Elena Ruth sa sso w e r , plaintiff-appellant
pro se, White Plains, N.Y.
DORIS L. SASSOWER, plaintiff-appellant pro
se, White Plains, N.Y.
D enn is T. Ber n st ein , Tuckahow, N.Y., for
defendant-appellee Hale Apartments.
Lawrence J. Glynn , W h ite P la in s , N.Y., fo r
d e f e n d a n t s - a p p e l l e e s F i e l d , H a e d k e ,
H o b b y , W i l l i a m I o lo n a r d i , J o a n n e
Io lo n a r d i , R ifk in , & 16 L a k e St. O w n e r s ,
In c .
STEVEN L. SONKIN, N e w Y ork , N .Y . ( M a r
s h a l l , C o n w a y & W r ig h t , N e w Y o rk ,
N .Y . , o n the b r ie f ) , fo r d e f e n d a n t s -
a p p e l l e e s D e S i s t o M a n a g e m e n t , I n c . &
E s p o s i t o .
( J u l iu s L . C h a m b e r s & C h a r le s S t e p h e n R a l
s to n , N e w Y ork , N .Y . , s u b m it te d an am i
cus curiae b r ie f fo r N A A C P L e g a l
D e f e n s e & E d u c a t io n a l F u n d , I n c .)
CA-8
JON O. Ne w m a n , Circuit Judge:
T h is a p p e a l f r o m a s u p p le m e n t a l j u d g m e n t i m p o s i n g
s a n c t io n s u p o n t w o u n s u c c e s s f u l p la in t i f f s f o r th e v e x a
t io u s c o n d u c t o f l i t ig a t io n in v o lv e s the ex traord in ary r e m
e d y o f an a w a r d o f n e a r ly $ 1 0 0 , 0 0 0 a s s e s s e d a g a in s t pro
se l i t i g a n t s , o c c a s i o n e d b y ex tra o r d in a r y c o n d u c t . T h e
ju d g m e n t w a s en te r e d b y the D is tr ic t C ourt fo r th e S o u t h
ern D i s t r ic t o f N e w Y ork (G erard L . G o e t t e l , J u d g e ) ,
req u ir in g D o r is L. S a s s o w e r and her d augh ter , E le n a R uth
S a s s o w e r , to p a y d e fe n d a n ts ’ a t to rn ey ’s f e e s and e x p e n s e s
o f $ 9 3 , 3 5 0 at th e c o n c l u s i o n o f th e ir u n s u c c e s s f u l su it
c la im in g h o u s in g d is c r im in a t io n . W e c o n c lu d e that J u d g e
G o e t t e l w a s a b u n d a n t ly j u s t i f i e d in im p o s in g s a n c t io n s
a g a in s t both p la in t i f f s and that the a m o u n t im p o s e d u p o n
D o r i s S a s s o w e r w a s fa ir ly d e te r m in e d , b ut th a t the
a m o u n t o f the s a n c t io n im p o s e d on E le n a S a s s o w e r m u s t
be r e c o n s id e r e d in l ig h t o f her l im ited f in a n c ia l re so u r c e s .
Facts
D o r i s an d E le n a S a s s o w e r f i l e d th e ir s u i t pro se in
1 9 8 8 , a l l e g i n g v io la t io n o f the F ed era l F a ir H o u s i n g A c t ,
4 2 U . S .C . § § 3 6 0 1 - 3 6 3 1 ( 1 9 8 8 ) , and o th e r f e d e r a l and
s ta te la w c l a i m s . A t v a r io u s s ta g e s o f the l i t i g a t io n , th e y
w e r e r e p r e s e n te d b y c o u n s e l . D o r is S a s s o w e r w a s th en a
m e m b e r o f th e bar, a l th o u g h her current s ta tu s i s in s o m e
d o u b t . See A ttorney Sanctioned by Court o f Appeals,
N .Y .L .J .* (S e p t . 11 , 1 9 9 1 ) . D e fe n d a n ts in c lu d e th e c o r p o
rate o w n e r o f a c o o p e r a t iv e ap artm en t b u i ld in g in W h it e
P la in s , N e w Y ork, and d irec to rs and an o f f ic e r o f the c o r
p o ra te o w n e r . T h e p la in t i f f s a l l e g e d that th e d e f e n d a n t s
had d i s c r im in a t e d a g a in s t th em by r e je c t in g th e ir a p p l i
c a t io n to a c q u ir e an a p a r tm en t in th e b u i ld in g th r o u g h
p u r c h a s e o f c o o p s to c k s h a r e s and a s s i g n m e n t o f a p ro -
CA-9
p r ie tary l e a s e fr o m a fo r m e r o c c u p a n t . P la in t i f f s a l l e g e d
d isc r im in a t io n on a c c o u n t o f their status as s in g le , J e w is h
w o m e n . D e fe n d a n ts c o n te n d e d that the re jec t io n had n o th
in g to d o w ith th e s ta tu s o f th e p la in t i f f s , b ut w a s b a s e d
p r im a r i ly on th e o w n e r ’s d is a p p r o v a l o f th e u s e to b e
m a d e o f the a p artm en t. W h i le ap p ro v a l w a s b e in g so u g h t ,
the ap artm en t w a s o c c u p ie d b y G e o r g e S a s s o w e r , th e fo r
m e r h u sb a n d o f D o r i s and the fa th er o f E l e n a . 1 E v i d e n c e
at trial in d ic a te d that h e w a s arrested at the a p a rtm en t fo r
w h at the D is tr ic t C ourt u n d ersto o d w a s the i l le g a l p ra ct ice
o f law . E v i d e n c e a l s o in d ic a t e d that th e o c c u p a n t s o f the
a p a r tm en t b u i ld in g i n c lu d e d J e w s a n d s i n g l e w o m e n , a
c i r c u m s t a n c e te n d in g to r e fu te p la i n t i f f s ’ c la im c o n c e r n
in g the b a s is fo r th e ir r e j e c t io n .
A f te r s o m e o f the d e fe n d a n ts w e r e d is m is s e d on m o t io n
fo r s u m m a r y j u d g m e n t , see Sassower v. Field, 7 5 2 F.
S u p p . 1 1 8 2 ( S .D .N . Y . 1 9 9 0 ) ; Sassower v. Field, 7 5 2 F.
S u p p . 1 1 9 0 ( S .D .N . Y . 1 9 9 0 ) , th e c a s e w a s tr ied b e f o r e a
ju r y fo r s e v e n d a y s . T h e ju r y a n s w e r e d s p e c i f i c in t e r
ro g a to r ies , r e jec t in g a ll o f p la in t i f f s ’ c la im s , in c lu d in g the
c la im that th e r e l i g i o n , g e n d e r , or m a r ita l s ta tu s o f th e
p la in t i f f s w a s a r e a s o n fo r th e r e je c t io n o f th e ir a p p l i c a
t io n to p u r c h a s e th e a p a r tm en t .
A fte r en try o f j u d g m e n t fo r the d e fe n d a n ts , the D is t r ic t
Court granted the d e f e n d a n t s ’ requ est for c o u n s e l f e e s and
c o s t s a s p r e v a i l i n g p a r t ie s p u r su a n t to th e F a ir H o u s i n g
A c t , 4 2 U .S .C . § 3 6 1 3 ( c ) ( 2 ) ( 1 9 8 8 ) . In the a lter n a t iv e the
C ourt im p o s e d s a n c t io n s a g a in s t the p la in t i f f s p u rsu a n t to
F e d . R. C iv . P. 11 , 2 8 U . S . C . § 1 9 2 7 ( 1 9 8 8 ) , a n d th e
C o u r t ’s in h e r e n t p o w e r “ b e c a u s e o f their ta c t ic s o f d e la y ,
o p p r e s s io n and h a r a s s m e n t .” D i s t r ic t C o u rt o p in i o n o f
A u g u st 12, 1991 (h erea fter “ O p in io n ”), at 18. Ju d ge G o e t -
1 George Sassower is a disbarred attorney whose proclivity for
frivolous and vexatious litigation has repeatedly resulted in sanctions.
CA-10
te l c a r e f u l ly r e v i e w e d th e e x tra o rd in a r y p a ttern o f v e x a
t io u s l i t ig a t in g ta c t i c s e n g a g e d in by the p la in t i f f s d u r in g
the p e n d e n c y o f the l i t ig a t io n and c o n c lu d e d that th ey had
a c te d “ in bad fa i th , v e x a t io u s ly and u n r e a s o n a b ly .” Id. at
14 ( f o o tn o t e s o m it t e d ) . A s he stated , “ T h e S a s s o w e r s p ur
su e d th is l i t ig a t io n as i f it w a s a h o ly w a r and n o t a c o u r t
p r o c e e d in g , m a n a g in g th e s e p r o c e e d in g s in a f a s h io n that
v e x a t i o u s l y , w a n t o n ly and fo r o p p r e s s i v e r e a s o n s
i n c r e a s e d th e l e g a l f e e s e n o r m o u s l y .” Id. at 13 .
A s s u m m a r iz e d b y the D is t r ic t C o u rt , th e p l a i n t i f f s ’
c o n d u c t in c lu d e d the f o l l o w i n g :
T h e y m a d e se v e r a l u n su p p or ted b ias r e c u s a l m o t io n s
b a s e d u p o n th is c o u r t ’s u n w i l l i n g i n v o l v e m e n t in
s o m e o f th e e a r l i e r p r o c e e d in g s in i t ia t e d b y G e o r g e
S a s s o w e r . . . . T h e r e w e r e c o n t in u a l p e r s o n a l
a tta ck s on the o p p o s in g p arties and c o u n s e l . . . . In
v ir tu a l ly e v e r y in s ta n c e w h er e a cou rt r u l in g w a s not
s a t i s f a c t o r y to th e m , p la in t i f f s r o u t in e ly m a d e a
m o t io n to r e a r g u e . In a d d it io n , p la in t i f f s f i l e d t w o
im p r o p e r in t e r lo c u to r y a p p e a ls w h ic h w e r e s u b s e
q u e n t ly w ith d ra w n . . . . F in a lly , th ey h a v e n o w f i le d
a m a m m o t h m o t io n fo r a n e w tr ia l and s a n c t io n s
a g a in s t o p p o s in g c o u n s e l w h ic h s e e k s to re a rg u e v ir
tu a l ly e v e r y a s p e c t o f the l i t iga t ion for the third t im e .
O p in io n at 1 3 - 1 4 ( c i t a t io n s and f o o t n o t e s o m i t t e d ) . T h e
D is tr ic t J u d g e a l s o n o ted that the p la in t i f f s “ a t t e m p te d to
c o m m u n i c a t e d ir e c t ly w ith the d e fe n d a n ts ra th e r than
th rou gh c o u n s e l in order to fo r ce through th e ir s e t t l e m e n t
d e m a n d s .” Id. at 14 n .1 0 . P r e v io u s ly the M a g is tr a te J u d g e
s u p e r v i s in g d i s c o v e r y had r e c o m m e n d e d d i s m is s a l o f the
c o m p la in t b e c a u s e o f D o r is S a s s o w e r ’s e g r e g i o u s fa i lu r e
to m a k e d i s c o v e r y as d ir e c te d b y th e C ou rt. T h e D i s t r ic t
J u d g e , th o u g h n o t in g m is b e h a v io r w a r r a n t in g s a n c t io n s ,
c a -u
d e c l in e d to d i s m is s b e c a u s e the c o m p la in t w o u ld s t i l l be
p u r su e d by E le n a . H e n o n e t h e l e s s o b s e r v e d :
It is p a ten t ly c le a r that D o r is L. S a s s o w e r has b een
g u i l t y o f a t t e m p t in g to m a n ip u la te the c o u r t b y
a p p e a r in g as a t t o r n e y o n t h o s e m a tters w h ic h c o u l d
a s s i s t her c a s e w h i l e r e f u s in g to be d e p o s e d h e r s e l f ,
c la im in g h ea lth p r o b le m s . W e w e r e c o m p e l l e d at an
e a r l ie r t im e to a l l o w [her] to a p p e a r pro se an d to
r e l i e v e h er a t t o r n e y b e c a u s e o f th e la w o f th is C ir
c u i t , e v e n th o u g h w e c o u ld f o r e s e e the t y p e o f
m a n ip u la t io n that h a s f r e q u e n t ly o cc u r r e d .
Id. at 16 . T h e C o u rt a l s o n o te d h er r e c a lc i t r a n c e at her
o w n d e p o s i t io n and her ro le a s s is t in g an oth er a ttorn ey “ in
c o n d u c t in g in c r e d ib ly h a ra ss in g d e p o s i t io n s o f c e r ta in o f
the d e f e n d a n t s .” Id. at 17 . S o m e o f that q u e s t i o n i n g
in c lu d e d w h a t th e C o u r t te r m e d “ p a r t ic u la r ly s h o c k in g
and a b u s iv e ” q u e s t io n in g o f a B la c k m e m b e r o f the c o o p ’s
board o f d irectors , q u e s t io n in g la ced w ith racial in n u en d o .
Id. at 2 2 . 2 R e p e a t e d ly th r o u g h o u t th e l i t i g a t io n , th e D i s
trict Ju d ge c a u t io n e d the p la in t if f s that their v e x a t io u s and
h a r a s s in g c o n d u c t , i f c o n t in u e d , w a s l ik e ly to in c u r m o n
e tary s a n c t io n s at th e c o n c l u s i o n o f the c a s e .
2 Judge Goettel noted that Doris Sassower's vexatious tactics had been
observed by other courts. He quoted the following comments of Justice
Samuel G. Fredman of the New York Supreme Court, County of West
chester:
From the relatively simple molehill of potential issues which
could possibly arise from such conduct, Sassower has created a
mountain of legal, factual and even political abracadabra. Her
actions have taken an inordinate amount of this Court’s time and
tested its patience beyond the wildest imagination. . . . [M]onths
of actual court time [were] spent in permitting Sassower to pre
serve her rights by trick and chacanery beyond the concept of most
any lawyer who practices in our courts. She is indeed sui generis
in her actions . . . .
Id. at 14-15 n .l l (quoting Breslaw v. Breslaw, Slip Op., Index No.
22587/86 at 2, 12 (June 24, 1991)).
CA-12
T h e D is tr ic t J u d g e a w a r d e d to the d e fe n d a n ts a to ta l o f
$ 9 2 , 0 0 0 in f e e s and $ 1 , 3 5 0 in e x p e n s e s , and im p o s e d l i a
b il i ty fo r th e se a m o u n ts jo in t ly upon D o r is and E le n a S a s -
so w er . P la in t i f f s a p p e a l from the aw ard o f a t t o r n e y ’s f e e s
an d fr o m th e d e n ia l o f th e ir m o t io n fo r a n e w tr ia l an d
th e ir re q u es t to h a v e s a n c t io n s im p o s e d o n the d e fe n d a n ts .
D is c u s s io n
I. A t t o r n e y ’s F e e s
A . Fair Housing Act. A t the t im e the c o m p la in t in th is
c a s e w a s f i l e d , the F a ir H o u s in g A c t a u th o r iz e d an aw a rd
o f a t t o r n e y ’s f e e s o n ly to a p r e v a i l in g plaintiff. 4 2 U .S .C .
§ 3 6 1 2 ( c ) ( 1 9 8 2 ) . T h e cu rr en t v e r s io n , e n a c t e d in 1 9 8 8 ,
P u b . L . N o . 1 0 0 - 4 3 0 , § 8 ( 2 ) , 1 0 2 S tat. 1 6 3 3 ( 1 9 8 8 ) ,
a u t h o r iz e s f e e s f o r a p r e v a i l in g party. 4 2 U . S . C .
§ 3 6 1 3 ( c ) ( 2 ) ( 1 9 8 8 ) . T h e D i s t r ic t C ou rt , n o t in g th at th e
p la i n t i f f s had a m e n d e d th e ir c o m p la in t t w i c e a f t e r th e
e f f e c t i v e d a te o f th e n e w f e e - s h i f t in g p r o v i s io n , a w a r d e d
f e e s in c u r red b y th e d e f e n d a n t s a fter th e e f f e c t i v e d a te .
J u d g e G o e t t e l d e te r m in e d th e se f e e s to total $ 9 2 , 0 0 0 , p lu s
$ 1 , 3 5 0 o f e x p e n s e s . T h e r a t io n a le fo r a w a r d in g d e f e n
d a n ts th e ir a t t o r n e y ’s f e e s to th is e x t e n t w a s n o t s i m p ly
that the d e fe n d a n ts w e r e “p r ev a i l in g p a r t i e s ] ” but that the
l a w s u i t w a s “ t o t a l ly m e r i t l e s s . ” O p in io n at 7 .
E v e n i f w e a s s u m e fo r the a rg u m e n t that th e a m e n d e d
f e e - s h i f t i n g p r o v i s i o n c o u ld b e a p p l ie d to a l a w s u i t f i l e d
b e f o r e i t s e f f e c t i v e d a te , to the e x t e n t o f s h i f t i n g f e e s
in cu rred a fter its e f f e c t i v e d a te , w e c a n n o t a g r e e that f e e s
c o u l d b e a w a r d e d u n d e r the F air H o u s i n g A c t . T h a t
s ta tu te , l ik e o th e r c i v i l r ig h ts f e e p r o v i s i o n s , p e r m it s an
aw ard o f f e e s to p r e v a i l in g d e fe n d a n ts o n ly u p o n a s h o w
in g that th e s u i t i s “ f r iv o l o u s , u n r e a s o n a b le , o r w i t h o u t
CA-13
f o u n d a t io n .” See Christiansburg Garment Co. v. EEOC,
4 3 4 U . S . 4 1 2 , 4 2 1 ( 1 9 7 8 ) . A s the D i s t r ic t J u d g e r e c o g
n iz e d , the p la i n t i f f s ’ su it a d e q u a te ly a l l e g e d the e l e m e n t s
o f a prima fa c ie c a s e o f d is c r im in a t io n and p r e s e n t e d a
fac tu a l d isp u te fo r the ju ry as to w h eth er the p la in t i f f s had
p r o v e n that the d e f e n d a n t s ’ a r t ic u la t io n o f n o n - d i s c r im i -
n a to ry r e a s o n s fo r th e ir a c t io n s w a s p r e te x tu a l . See Sas-
sower v. Field, 7 5 2 F. at 1 1 8 9 - 9 0 .
It is a rg u a b le that e v e n a c iv i l r igh ts p la in t i f f m u s t b ear
th e r isk o f an a w a r d o f d e f e n d a n t ’s a t t o r n e y ’s f e e s w h e n
a ju ry r e s o l v e s fa c tu a l d is p u t e s in fa v o r o f a d e f e n d a n t
and a j u d g e c o n c l u d e s that the c la im , th o u g h r e q u ir in g
ju ry c o n s i d e r a t i o n , w a s e n t ir e ly in s u b s ta n t ia l . W e h a v e
u p h e ld f e e - s h i f t i n g a fte r a c i v i l r ig h ts b e n c h tr ia l w h e r e
th e p l a i n t i f f ’s t e s t i m o n y w a s fo u n d to h a v e b e e n “ an
u n m it ig a t e d t i s s u e o f l i e s . ” See Carrion v. Yeshiva Uni
versity, 5 3 5 F .2 d 7 2 2 , 7 2 8 (2 d Cir. 1 9 7 6 ) . In the p e n d in g
c a s e , h o w e v e r , th e e s s e n t i a l i s s u e w a s n o t w h e t h e r th e
p la in t i f f s w e re c r e d ib le in their a c c o u n t o f the fa c tu a l c ir
c u m s ta n c e s ; it w a s w h e th e r the d e f e n d a n t s ’ e x p la n a t io n s
for their a c t io n s w e r e le g i t im a te or p retextua l. T h ere is n o
f in d in g that th e p la in t i f f s d id n o t b e l i e v e that th e y had
b e e n th e v i c t i m s o f d is c r im in a t io n . M o r e o v e r , th o u g h
there w e r e v a r io u s d isp u te s as to s o m e d e ta i ls o f the d e a l
in g s b e t w e e n th e p la in t i f f s and the d e fe n d a n ts , th ere w a s
n o f in d in g that the p la in t i f f s ’ had g iv e n a fa ls e a c c o u n t o f
th e b a s ic f a c t s a l l e g e d to su p p o rt an in f e r e n c e o f d i s
c r im in a to r y m o t iv e . N o r i s th is a c a s e w h e r e th e tr ia l
j u d g e e x p r e s s e d th e v i e w that n o r e a s o n a b le ju r y c o u l d
h a v e f o u n d in p l a i n t i f f ’s fa v o r but r e s e r v e d r u l in g o n a
m o tio n for a d ir e c te d v er d ic t and su b m itted the c a s e to the
ju ry s im p ly to h a v e a v e r d ic t in the e v e n t that a c o u r t o f
a p p e a ls m ig h t h a v e d is a g r e e d w ith h is s u b s e q u e n t r u l in g
to se t a s id e a p la i n t i f f s ’ v erd ic t , had o n e b een re turned . In
CA-14
th e s e c ir c u m s ta n c e s , to aw ard d e fe n d a n ts th e ir a t t o r n e y ’s
f e e s s im p ly b e c a u s e th e ju ry fo u n d in th e ir f a v o r an d the
trial j u d g e fo u n d the v e r d ic t o v e r w h e lm in g ly su p p o r ta b le
r is k s i m p o s i n g t o o g r e a t a c h i l l i n g e f f e c t u p o n th e p r o s
e c u t io n o f l e g i t im a t e c iv i l r igh ts la w su it s . W e c a n n o t s u s
ta in th e f e e a w a r d u n d e r th e F a ir H o u s in g A c t .
T h o u g h the o u tc o m e o f the la w su it a d v erse to the p la in
t i f f s is an in s u f f i c i e n t b a s is to requ ire th e m to p a y d e f e n
d a n t s ’ a t t o r n e y ’s f e e s u n d e r the F a ir H o u s i n g A c t ,
s u b s ta n t ia l i s s u e s r e m a in as to w h e th e r th e p la i n t i f f s are
l i a b le fo r s u c h f e e s fo r the m a n n er in w h ic h th e y c o n
d u c te d the l i t i g a t io n .
B . Rule 11. R e c o g n i z i n g the p o s s ib i l i t y th a t th e f e e
a w a r d m ig h t n o t b e s u s ta in a b le u n d er the F a ir H o u s i n g
A c t , J u d g e G o e t t e l g r o u n d e d p o r t io n s o f the a w a r d a l t e r
n a t i v e l y u p o n F e d . R . C iv . P. 11, the C o u r t ’s in h e r e n t
a u th o r ity , an d 2 8 U . S . C . § 1 9 2 7 . R u le 11 a p p l i e s , as th e
D is tr ic t C ourt r e c o g n iz e d , to th o se w h o s ig n a “p le a d in g ,
m o t io n , and o th e r p a p e r ” w i th o u t m a k in g “ r e a s o n a b l e
in q u ir y [that] it i s w e l l g ro u n d e d in f a c t .” F e d . R . C iv . P.
11. Ju d ge G o e t t e l a s s e s s e d $ 5 0 , 0 0 0 as a R u le l l s a n c t i o n .
H o w e v e r , he d id n ot s p e c i f y the d o c u m e n ts the s ig n in g o f
w h ic h v i o l a t e d th e R u le . H e p r o b a b ly had in m in d p r in
c ip a l ly the c o m p la in t , th o u g h he a lso n o ted that “ [d ]u r in g
the c o u r s e o f th is l e n g t h y p r o c e e d in g , b o th o f [ th e p la i n
t i f f s ] s ig n e d n u m e r o u s d o c u m e n t s .” O p in io n at 11. S in c e
w e c o n c lu d e b e l o w that the $ 5 0 , 0 0 0 p o r t io n o f th e a w a r d
g r o u n d e d on R u le 11 i s e q u a l ly s u p p o r ta b le b y th e e x e r
c i s e o f the D is tr ic t C o u r t ’s inherent authority, w e n e e d not
return th e m a t ter to J u d g e G o e t t e l fo r a p r e c i s e i d e n t i f i
c a t io n o f w h ic h d o c u m e n t s w arran ted R u le 11 s a n c t io n s .
C. 28 U.S.C. § 1927. A s a fu rth er a l t e r n a t iv e to a f e e
aw a rd u n d e r th e F a ir H o u s in g A c t , J u d g e G o e t t e l
g r o u n d e d a p o r t io n o f th e f e e a w a r d , $ 4 2 , 0 0 0 , o n 2 8
U .S .C . § 1 9 2 7 , w h ic h p e r m it s im p o s i t io n o f f e e s u p o n
“ [a ]n y a tto rn ey or o th e r p e rso n a d m itted to c o n d u c t c a s e s
in a n y c o u r t o f th e U n i t e d S t a t e s ” w h o “ m u l t i p l i e s th e
p r o c e e d in g s in a n y c a s e u n r e a s o n a b ly an d v e x a t i o u s l y . ”
2 8 U .S .C . § 1 9 2 7 ( 1 9 8 8 ) . T h is $ 4 2 , 0 0 0 i s in a d d i t io n to
the $ 5 0 , 0 0 0 a w a r d e d u n d er R u le 11. U n q u e s t io n a b ly , th e
c o n d u c t o f the p la in t i f f s w arranted an aw ard u n d er s e c t io n
1 9 2 7 . T h e i s s u e p o s e d b y th is p o r t io n o f th e a w a r d i s
w h eth er s e c t io n 1 9 2 7 sa n c t io n s m a y be im p o s e d o n pro se
l i t ig a n ts , or at le a s t on a pro se l i t ig a n t w h o w a s a l a w y e r
at the t im e o f th e l i t i g a t io n .
Ju d ge G o e t t e l ru led that s e c t io n 1927 m a y be a p p l ie d to
pro se l i t ig a n ts , in c lu d in g n o n - la w y e r s . T h e N in th C ir c u it
h a s a d o p te d th is p o s i t io n . See Wages v. I.R .S., 9 1 5 F .2 d
1 2 3 0 , 1 2 3 5 - 3 6 (9 th Cir. 1 9 9 0 ) , cert, denied, 111 S . Ct.
9 8 6 ( 1 9 9 1 ) . W e d i s a g r e e . S e c t io n 1 9 2 7 a p p l i e s to a n y
“ a tto rn ey or o th er p e r so n a d m itte d to c o n d u c t c a s e s ” in a
fe d e r a l cou rt . J u d g e G o e t t e l c o n s id e r e d the pro se p la i n
t i f f s to be “p e r s o n [ s j a d m it te d to c o n d u c t c a s e s ” b e c a u s e
they had b een granted p e r m is s io n to p ro ce ed pro se. O p in
io n at 17. B u t th e w o r d “ a d m it t e d ” in th is c o n t e x t s u g
g e s t s a p p l ic a t io n to t h o s e w h o , l ik e a t t o r n e y s , g a in
a p p r o v a l to a p p e a r in a l a w y e r l i k e c a p a c i ty . M o r e o v e r ,
p a r t ie s g e n e r a l ly h a v e a r ig h t to a p p e a r pro se. See 2 8
U . S .C . § 1 6 5 4 ( 1 9 8 8 ) ; O' Reilly v. New York Times Co.,
6 9 2 F .2d 8 6 3 , 8 6 7 (2 d Cir. 1 9 8 2 ) . T h o u g h the S a s s o w e r s ’
fo r m e r a t to r n e y n e e d e d and o b ta in e d p e r m is s i o n to b e
r e l i e v e d , the g ra n t in g o f h is m o t io n le f t the p la in t i f f s fr e e
to p r o c e e d pro se, w i t h o u t fu rth er o rd er o f th e C o u r t .
M o r e o v e r , it is u n l i k e l y that C o n g r e s s i n t e n d e d th e
p hrase “o th er p e r s o n ” to in c lu d e a p erso n la c k in g la w y e r
l ik e c r ed en t ia ls . T h e p rior v e r s io n o f the statu te read “ a n y
a tto rn ey , p ro c to r , or o th e r p e r s o n a d m i t t e d .” See M otion
CA-15
Picture Patents Co. v. Steiner, 2 0 1 F. 6 3 , 6 4 (2 d Cir.
1 9 1 2 ) . T h is p h r a s in g a l s o s u g g e s t s that “o th e r p e r s o n ”
c o v e r s th o s e a d m it te d to act in a la w y e r l ik e c a p a c i ty . W e
a lso n o te that the S u p re m e Court recen tly r e co u n ted , w i t h
o u t d is a g r e e m e n t , a D is tr ic t C o u r t ’s a sser t io n that s e c t io n
1 9 2 7 “ a p p l i e s o n ly to a t t o r n e y s .” See Chambers v.
NASCO, Inc., I l l S . Ct. 2 1 2 3 , 2 1 3 1 ( 1 9 9 1 ) . T h is r e f e r
e n c e i m p l i e s a p p r o v a l o f the D is tr ic t C o u r t ’s v i e w , s in c e
th ere w o u ld h a v e b e e n n o n e e d fo r the S u p r e m e C o u r t to
c o n s i d e r th e la rg er q u e s t io n o f the trial j u d g e ’s in h e r e n t
a u th o r ity to s a n c t io n i f s e c t io n 1 9 2 7 had a p p l i e d to the
n o n - la w y e r .
T h o u g h s e c t io n 1 9 2 7 w i l l not support s a n c t io n s a g a in s t
E le n a S a s s o w e r , it is a v a i la b le fo r u se a g a in s t D o r i s S a s -
so w er , w h o , th o u g h a c t in g pro se, w a s a la w y er , at le a s t at
the t im e o f th is l i t ig a t io n . S in c e s e c t io n 1 9 2 7 i s d e s i g n e d
to curb a b u s iv e ta c t ic s by la w y er s , it sh o u ld a p p ly to Atty.
S a s s o w e r n o t w i t h s t a n d in g the fac t that h er o n ly c l i e n t in
th is m a t te r w a s h e r s e l f .
A s an a l t e r n a t iv e to r e l ia n c e on s e c t io n 1 9 2 7 , J u d g e
G o e t t e l g r o u n d e d the $ 4 2 , 0 0 0 portion o f the s a n c t io n s on
th e C o u r t ’s in h e r e n t a u th o r ity , as he had d o n e , a l t e r n a
t ive ly , w ith the $ 5 0 , 0 0 0 portion based on R u le 11. W e turn
th en to that b a s is o f a u th o r ity .
D . Inherent Authority. J u d g e G o e t t e l e x p l i c i t l y r e l i e d ,
a l t e r n a t iv e ly , on h is in h e r e n t a u th o r ity in th e p o r t io n o f
h is O p in io n a w a r d in g R u le 11 s a n c t io n s , see O p in io n at
11, and in th e p o r t io n a w a r d in g s e c t io n 1 9 2 7 s a n c t i o n s ,
O p in io n at 18. W e m a y r e a s o n a b ly in fe r that h e in t e n d e d
to b ase the $ 5 0 , 0 0 0 p ortion o f the award, a lter n a t iv e ly , on
h is in h e r e n t a u th o r ity , to w h a te v e r e x te n t it w a s n o t s u p
p o r ta b le b y R u le 11 , and to b ase the $ 4 2 , 0 0 0 p o r t io n o f
th e a w a rd , a l t e r n a t iv e ly on h is in h e r e n t a u th o r ity , in th e
CA-16
CA-17
e v e n t s e c t io n 1 9 2 7 w a s d e e m e d i n a p p l ic a b le to E le n a
S a s s o w e r .
T h e S u p r e m e C o u rt has m a d e c le a r that a d is t r ic t co u r t
has inh eren t au th ority to san ction parties ap p earin g b e fo r e
i t fo r a c t in g in b a d fa i th , v e x a t io u s l y , w a n t o n ly , o r fo r
o p p r e s s iv e r e a s o n s . See Chambers v. NASCO, Inc., I l l S.
Ct. at 2 1 3 3 . H a v in g r e v ie w e d the c o u r s e o f th e l i t ig a t io n
and th e n u m e r o u s in s t a n c e s o f e n t ir e ly v e x a t i o u s and
o p p r e s s i v e t a c t i c s e n g a g e d in by the p la in t i f f s , w e a g r e e
w ith J u d g e G o e t t e l that h is in h e r e n t a u th o r ity w a s p r o p
e r ly u s e d to s u s ta in th e s e p o r t io n s o f th e a w a r d .
E. Am ount o f Sanctions. W e h a v e ru led that w h e n a
cou rt aw ards d e f e n d a n t ’s a t to r n e y ’s f e e s , it m u s t tak e in to
a c c o u n t th e f i n a n c i a l c i r c u m s t a n c e s o f the p la in t i f f . See
F a ra d v. H ickey-Freem an Co., 6 0 7 F .2d 1 0 2 5 , 1 0 2 9 (2 d
Cir. 1 9 7 9 ) . N o c o n c e r n n e e d b e r a is e d w ith r e s p e c t to
D o r is S a s s o w e r . J u d g e G o e t t e l e x p l i c i t l y r e l i e d o n tr ia l
t e s t im o n y that r e v e a le d that sh e w a s l iv in g in “ a t w o m i l
l ion d o lla r m a n s io n .” O p in io n at 10 n .6 . T h o u g h the v a lu e
o f an e x p e n s i v e h o m e d o e s n ot n e c e s s a r i ly d e m o n s t r a t e
a b i l i ty to p a y $ 9 3 , 3 5 0 in s a n c t io n s , D o r i s S a s s o w e r h as
m a d e n o c la im o n a p p e a l that the s a n c t io n i s b e y o n d h er
m e a n s . W ith r e s p e c t to E le n a S a s s o w e r , h o w e v e r , J u d g e
G o e t t e l e x p l i c i t l y s ta te d that he d id “ n o t b e l i e v e th a t sh e
is f in a n c ia l ly a b le to re sp o n d in the p a y m e n t o f a t t o r n e y s ’
f e e s and s a n c t io n s .” O p in io n at 19 ( fo o tn o te o m it t e d ) . H e
n o ted that sh e had c la im e d d uring the trial to b e in d ig e n t .
N e v e r th e le s s he im p o s e d l iab i l i ty for the f e e s jo in t ly u pon
E le n a and her m o th e r , th o u g h e x p r e s s in g h is e x p e c t a t io n
that “ th ese c o s t s w i l l p rob ab ly have to be borne s o l e ly b y ”
th e m o th e r . O p in io n at 19.
T h o u g h w e c o n c lu d e that the Ju d ge w a s e n t i t le d to f in d
b oth m o t h e r and d a u g h te r l ia b le fo r s a n c t io n s , w e m u s t
CA-18
v a c a te the im p o s i t io n o f jo in t l ia b i l i ty fo r the fu l l a m o u n t
u p o n E le n a , in the a b s e n c e o f e v id e n c e that h er f in a n c ia l
r e s o u r c e s p erm it an aw ard o f that s iz e . U p o n re m a n d , the
D is tr ic t C o u rt m a y a s s e s s a g a in s t her su ch p o r t io n o f the
a w a r d as i s a p p r o p r ia te in l ig h t o f her r e s o u r c e s .
T h o u g h the a m o u n t o f the sa n ctio n that w e fu l ly u p h o ld
w ith r e s p e c t to D o r i s S a s s o w e r is large , it i s in fa c t o n ly
a p o r t io n o f th e f e e s e x p e n d e d by d e f e n d a n t s that c o u ld
h a v e b e e n a s s e s s e d in v i e w o f the p l a i n t i f f s ’ c o n d u c t .
J u d g e G o e t t e l c h o s e to aw ard o n ly th o s e f e e s in c u r r e d
a fte r the e f f e c t i v e d a te o f the a m e n d e d f e e p r o v i s i o n o f
th e F a ir H o u s i n g A c t . S in c e the fe e aw a rd i s b e in g s u s
ta in e d o n the b a s i s o f a u th o r ity o th e r than th e A c t , th e
s e l e c t i o n o f th is d a te as a s tarting p o in t for f e e s o p e r a t e s
as a fo r tu i t o u s b e n e f i t fo r the p la in t i f f s .
II. N e w Trial
C o n t in u in g th e ir v e x a t io u s and h a r a s s in g t a c t i c s , the
p la in t if f s su b m it ted to Ju dge G o ette l , severa l m o n th s after
the trial, a m o t io n fo r a n ew trial under R u le 6 0 ( b ) ( 3 ) . T h e
m o t io n w a s a c c o m p a n i e d b y s e v e r a l h u n d red p a g e s o f
su p p ort in g p a p ers and a th ou sand p a g es o f e x h ib it s . In the
m a in , th e m o t io n is n o th in g m o r e than a r e a r g u m e n t o f
n u m e r o u s c l a i m s m a d e p r io r to and d u r in g th e tr ia l ,
in c lu d in g fa c tu a l i s s u e s r e s o lv e d a g a in s t the p la in t i f f s by
the jury. J u d g e G o e t t e l a c ted w e l l w ith in h is d is c r e t io n in
d e n y in g th e m o t io n .
W e h a v e c o n s i d e r e d a ll o f the o th e r i s s u e s r a i s e d b y
a p p e l la n t s and f in d th e m to ta l ly la c k in g in m e r it .
C o n c lu s io n
T h e d e n ia l o f p l a i n t i f f s ’ m o t io n fo r n e w tr ia l a n d fo r
s a n c t io n s a g a in s t the d e fe n d a n ts i s a f f ir m ed ; th e s u p p l e
m e n t j u d g m e n t a w a r d in g s a n c t io n s a g a in s t th e p la i n t i f f s
i s a f f ir m e d as to l i a b i l i t y , a f f ir m e d as to a m o u n t w i t h
re sp e c t to D o r is S a s s o w e r and v a ca ted and r e m a n d e d as to
a m o u n t w ith r e s p e c t to E le n a S a s s o w e r .
CA-20
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated Term of the United States Court of Appeals for the
Second Circuit, held at the United States Courthouse in the City
of New York, on the 13th day of August, one thousand nine
hundred and ninety-two.
[Stamped] FILED: AUG. 13, 1992
Present: HON. J. EDWARD LOMBARD,
HON. JON O. NEWMAN,
HON. RALPH K. WINTER,
Circuit Judges.
ELENA RUTH SASSOWER, et. ano.,
Plaintiffs-Appellants,
-v- Docket #: 91-7891
KATHERINE M. FIELD, et. al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of New York.
This cause came on to be heard on the transcript of
record from the United States District Court for the Southern
District of New York and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby
ORDERED, ADJUDGED, and DECREED that the appeal from a
supplemental judgment of said district court be and it hereby is
affirmed as to liability, affirmed as to amount with respect to
Doris Sassower and remanded as to amount with respect to
Elena Sassower in accordance with the opinion of this court.
ELAINE GOLDSMITH, Clerk
By: Arthur Heller, Deputy Clerk
CA-21
[stamped] A TRUE COPY,
ELAINE B. GOLDSMITH, Clerk
By: Carolyn Clark Cample
ISSUED AS MANDATE
10/6/92
CA-22
T 1080
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SASSOWER,
Appellants,
Docket #: 91-7891
-v-
FIELD,
Appellees.
NOTICE OF MOTION
for procedural and substantive
relief
[Stamped] FILED NOV 29,1991
... Vacate Judgment for counsel fee/sanctions for lack of subject
matter jurisdiction
[signed] Elena Ruth Sassower Pro Se 11/26/91
Doris L. Sassower Pro Se 11/26/91
It IS HEREBY ORDERED that...
... motion to vacate judgment of counsel fees is referred to the
panel that will hear the appeal.
Date: DEC 04 1991 [signed] Frank X. Altimari
Circuit Judge
[Stamped] FILED AUG. 13, 1992
BEFORE: Hon. J. Edward Lumbard, Hon. Jon O.
Newman, Hon. Ralph K. Winter, Circuit Judges.
IT IS HEREBY ORDERED that the motion to vacate
judgment of counsel fees be and hereby is DENIED.
FOR THE COURT
By: Chandella Gaillard, Deputy Clerk Dated: 8/13/92
CA-23
[stamped] FILED: AUG 13 1991
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
.................... ............... .........................................x
ELENA RUTH SASSOWER, et. ano.,
Plaintiffs,
-against-
KATHERINE M. FIELD, et al.
88 Civil 5775 (GLG)
JUDGMENT
Defendants.
x
Whereas the above entitled action have been assigned to the
Honorable Gerard L. Goettel, U.S.D.J., and the Court thereafter
on August 12, 1991, having handed down its opinion, denying
Plaintiffs motion in all respects and granting attorney's fees to
the defendants to be paid by the above named plaintiffs it is,
ORDERED, ADJUDGED AND DECREED: That the defendants
Katherine M. Field, Curt Haedke, Lilly Hobby, William
Iolonardi, Joanne Iolonardi, Robert Rifkin, Individually and as
members of the Board of Directors of 16 Lake Street Owners,
Inc. and 16 Lake Street Owners, Inc. recover from plaintiffs the
sum of $50,000.00 in fees and $850.00 in expenses for a total of
$50.850.00.
ORDERED, ADJUDGED AND DECREED: That the defendant
Hale Apartments recover from plaintiffs the sum of $12,000.00
in fees and $500.00 is disbursements for a total of $12.500.00.
ORDERED, ADJUDGED AND DECREED: That the defendant
Roger Esposito recover from plaintiffs the sum of $18.000.00 in
fees and expenses.
23
CA-24
ORDERED, ADJUDGED AND DECREED: That the Defendant
DeSisto Management recover from plaintiffs the sum of
$12.000.00 in fees and expenses.
ORDERED, ADJUDGED AND DECREED: That Eli Vigliano is
directed to pay $1.000.00 to Daisy Hobby and $500.00 to Curt
Haedke.
ORDERED, ADJUDGED AND DECREED: That sanctions are
assessed as to John McFadden and his counsel, James Glatthaar
jointly and severally, in the amount of $3,000.00 to be paid to
DeSisto Management and $3.000.00 to be paid to Roger
Esposito.
Dated: White Plains, New York
August 13, 1991
[signed] James M. Parkison
Clerk
24
CA-25
[Stamped] FILED SEP 25, 1992
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the United States Courthouse in the City
of New York, on the 25th day of September on thousand nine
hundred and ninety-two.
ELENA RUTH SASSOWER, et. ano.,
Plaintiffs-Appellants,
- v-
Docket #: 91-7891
KATHERINE M. FIELD, et. al.,
Defendant-Appellees.
A petition for rehearing containing a suggestion that the action
be reheard in banc having been filed herein by plaintiffs-
appellants, Elena Ruth Sassower and Doris L. Sassower.
Upon consideration by the panel that decided the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the suggestion for rehearing in banc has
been transmitted to the judges of the court in regular active
service and to any other judge that heard the appeal and that no
such judge has requested that a vote be taken thereon.
ELAINE B. GOLDSMITH, Clerk
by: s/Carolyn Clark Campbell, Chief Deputy Clerk
25
CA-26
T 1080
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ELENA RUTH SASSOWER, et. ano.
Appellants,
-v- Docket #: 91-7891
KATHERINE M. FIELD, et. al.,
NOTICE OF MOTION
for Procedural Relief
Appellees.
[Stamped] FILED: SEP 24, 1992
Brief Statement of the relief requested:
Motion to:
(a) supplement appellate record on the rehearing
application now pending before this Court
(b) obtain leave, if necessary, to cross-move in the
District Court under Rule 60(b)
[signed] Elena Ruth Sassower Pro Se September 23, 1992
Doris L. Sassower Pro Se
[Stamped] FILED: OCT. 1, 1992
IT IS HEREBY ORDERED that the motion be and it hereby is
denied.
[signed] J. Edw. Lumbard (per J.O.N)
Jon O. Newman
Ralph K. Winter (per J.O.N.)
Date: OCT 01 1992
26
CA-27
REPRINTED FROM THE SEPTEMBER 5, 1990 OPINION
OF THE DISTRICT COURT DENYING SUMMARY
JUDGMENT TO THE DEFENDANT CO-OP
(Plaintiffs' Appellate Appendix: A-155-156)
(See, also, 752 F. Supp. 1182, at 1189)
* * *
Second, the plaintiffs argue that the defendants failed to
comply with their own internal guidelines. Specifically,
the plaintiffs point to a document entitled "Cooperative
Guidelines for Admission."1 This document, which lays
1 The precatory paragraph of this document reads as follows:
"The Board of Directors in approving or
disapproving co-op apartment transfers must
comply with both constitutional and statutory
discrimination prohibitions. Confronted with this
dilemma and particularly when considering either
an application involving minorities or single
women, when a co-op board decides to reject a
purchaser, it may become incumbent upon the co
op, through either its managing agent or counsel,
to articulate its valid reasons for rejection. This
should be done contemporaneously with the
making of the decision to reject in order to refute
a subsequent claim by the rejected applicant or the
seller of the apartment that the rejection was based
upon some prohibited discriminatory ground.
Reasons which could justify rejection of a
purchaser might include any of the following, all
of which should be spelled [out] with some
specifically [sic] depending upon the particular
facts involved."
Amended Complaint, Ex. E. This paragraph is then followed by
15 potential reasons why an application might legitimately be
denied.
PIATNTIFFS' NOTE: The above highlighted
out purportedly acceptable reasons for denying a purchase
application, is also the subject of much dispute between the
parties. The affidavits and depositions of various parties
with regard to whether these guidelines were adopted by
the board of directors are contradictory. Compare Affidavit
of K. Field % 16 ("Plaintiffs do not and cannot allege that
the Board resolved to adopt those guidelines because in
fact, it did not.") with Esposito Deposition at 543 (board of
directors approved Cooperative Guidelines). Clearly a
dispute exists regarding the applicability and enforceability
of the Cooperative Guidelines. Although the relevance of
the document is not yet completely clear, it presents a
triable issue of fact on the question of pretext.
Third, the plaintiffs contend that, contrary to the
dictates of the Cooperative Guidelines, in denying the
plaintiffs' application the defendants failed to give the
plaintiffs contemporaneous reasons for the rejection. Aside
from the question of whether this violates the allegedly-
adopted guidelines, the fact that the 14 reasons stated by
defendants as supporting their decision were not
transmitted to the plaintiffs at the time of rejection, and
were first enunciated some time after the plaintiffs
challenged the board's decision, contributes to the plaintiffs'
claim of pretext."
words-an essential part of the Guidelines'
"precatory paragraph "-were omitted from the
district court's September 5, 1990 Opinion (Cf. A-
85-86, which reprinted the actual document)
CA-28
OPINION OF THE DISTRICT COURT. August 12, 1991
GOETTEL, D. J. :
Following a quick jury verdict in their favor, after
several years of incredibly fractious litigation and the denial of
the plaintiffs' motion for a new trial, all of the defendants now
move for attorneys' fees and sanctions pursuant to: (1) Rule 11
of the Federal Rules of Civil Procedure; (2) Federal Fair
Housing Act, 42 U.S.C. §3613(c); (3) 28 U.S.C. §1927; and the
general powers of the court.
FACTS1
This contentious litigation arises from a relatively simple
set of facts. Defendant 16 Lake Street Owners, Inc. is the owner
of the real property and cooperative apartment building located
at 16 Lake Street, White Plains, New York. Defendants Field,
Hobby, Haedke, W. Iolonardi and Rifkin, constituting the Board
of Directors, are authorized to act upon applications to purchase
stock and the corresponding proprietary lease as well as
applications to sublet apartments in the building. John
McFadden is the proprietary lessee for apartment 2C of the 16
Lake Street building and is the owner of 548 shares of stock in
16 Lake Street Owners, Inc.1 2
By contract dated October 29, 1987, John McFadden
agreed to transfer his 548 shares of stock in 16 Lake Street
Owners, Inc. and the proprietary lease for apartment 2C, to
plaintiffs Elena Ruth Sassower and Doris L. Sassower. After the
agreement was signed, Elena Sassower and her father, George
Sassower, took possession of the apartment as their principal
1 The facts of this action have been set forth in some of the
numerous prior decisions in this case. Rather than go through it again, we
will simply repeat the facts from our decision dated September 5, 1990.
See Sassower v. Field. 752 F. Supp. 1182 (S.D.N.Y. 1990).
2 John McFadden, formerly a plaintiff in this action, voluntarily
discontinued his claims against the defendants by order signed by the
court on June 15, 1990.
CA-29
residence in accordance with the contract terms. They remain in
possession to date. In January 1988, the plaintiffs applied for a
loan commitment to purchase the stock shares and proprietary
lease for apartment 2C and received that commitment in April
1988. In May 1988, the plaintiffs were interviewed by certain
members of the admissions committee of 16 Lake Street Owners,
Inc. By letter to the defendant DeSisto Management, Inc, the
managing agent for 16 Lake Street Owners, Inc., dated May 19,
1988, the Board of Directors denied the plaintiffs' application to
purchase the stock shares and proprietary lease for apartment 2C
from John McFadden. By letter dated May 20, 1988, DeSisto
Management informed the plaintiffs of this decision. The
plaintiffs and John McFadden subsequently requested that the
Board of Directors reconsider its decision. On June 14, 1988,
the Board of Directors unanimously voted to deny the plaintiffs'
request for reconsideration of the original decision disapproving
the purchase application.
In August 1988, the plaintiffs commenced this lawsuit
alleging eight causes of action against the various defendants.
Those actions may be summarized as follows: violations of the
federal Fair Housing Act, 42 U.S.C. §§ 3601-3631 (1982);
violations of the federal Civil Rights Act, 42 U.S.C. § 1983
(1982); violations of New York Human Rights Law, N.Y. Exec.
Law § 296(5)(a) (1982); violations of New York Civil Rights
Law, N.Y. Civ. Rights Law § 19-a (1982); failure to comply
with the provisions of the corporate by-laws and the proprietary
lease governing transfers; breach of the duty of good faith;
intentional infliction of emotional distress; unequal treatment of
shareholders; breach of fiduciary duty; and failure to comply
with its own policies. The plaintiffs' allegations of
discrimination, contained primarily in the first cause of action,
are based on their contention that the defendants' decision to
deny their application to purchase the shares and proprietary
lease for apartment 2C was made on account of their status as
single, Jewish women.
CA-30
PLAINTIFFS' OBJECTIONS TO LIABILITY
FOR PAYMENT OF ATTORNEYS' FEES
Before addressing the merits of the motions, a number of
objections made to the propriety of giving defendants any
attorneys' fees or sanctions must be considered. First, plaintiffs
contend that they may not be held responsible for any sanctions
or attorneys' fees under any of the foregoing provisions, claiming
that the defendants are not the real party in interest to make such
an application. They argue that since the cooperative, 16 Lake
Street Owners, Inc., had insurance, and since the insurer has paid
the cost of most of the defendants' attorneys, in whole or in part,
the insurance company, State Farm Mutual, is the real party in
interest and, therefore, defendants cannot seek such costs. The
argument is absurd. Most defendants who are sued have
insurance and, if sued on a matter within the scope of coverage,
the insurance company pays the attorneys selected to represent
them. However, the attorney's client is the insured and not the
insurance company. When an insured party prevails under a
circumstance allowing the recovery of sanctions or fees, it is the
insured who makes the application even though the monies may
ultimately revert to the insurance carrier as reimbursement for
fees paid.
Plaintiffs cite only one case, United States v. Aetna
Surety Co.. 338 U.S. 366 (1949), for their novel proposition that
the carrier must make the application. That case concerned the
limitation in the Federal Tort Claims Act, 31 U.S.C. § 203,
against assigning claims against the United States. The Court
held that if an insurance company pays its insured's claim it
becomes subrogated to the claim and may sue in its own name
without violating the Federal Tort Claims Act. 338 U.S. at 380-
81. Clearly, that case is no authority for the proposition that
insured defendants have no right to recover legal fees or
sanctions when their defense had been paid by the insurer.
Plaintiffs also argue that the attorneys, having agreed to
work at a particular fee specified by their client's insurer, may
not seek any greater sum even if the insurer is only paying a part
of the fee. Obviously, the hourly fee which the attorney agrees
to accept from an insurance carrier is something to be considered
in determining an appropriate attorney's fee. However, it is not
conclusive on the question of what hourly billing rate a
CA-31
prevailing attorney is entitled to. Cf. Tolliver v. Amici. 800 F.2d
149, 152 (7th Cir. 1986) (granting reasonable attorney's fees to
prevailing plaintiff who had agreed to contingency fee
arrangement).
An additional argument made by the plaintiffs is that
neither attorney's fees nor sanctions may be awarded absent a
"plenary and jury determination as a matter of right ... with
confrontation and subpoena rights." Plaintiffs' Memorandum of
Law at 15, citing Tull v. United States. 481 U.S. 412 (1987).
Tull concerned the right to a jury trial in an action brought by
the government, seeking penalties and injunctive relief under the
Clean Water Act. The penalties sought in that case bear no
relationship to the type of sanctions and fees sought here. Here,
the defendants' application does not arise out of a case or
controversy but instead rests upon the inherent power of the
court to manage its own proceedings and control the conduct of
those appearing before it. The determination of liability
therefore is vested in the sound discretion of the court and no
jury trial is necessary. Moreover, Tull holds that the Seventh
Amendment does not guarantee a jury trial to assess civil
penalties and that such assessments may be done by the trial
judge, which is directly contrary to the plaintiffs' position. Id. at
427. The plaintiffs' reliance on Lytle v. Household
Manufacturing. Inc., 494 U.S. 545 (1991), for the proposition
that they are entitled to a jury trial is similarly misplaced. That
case, too, has nothing to do with sanctions or attorneys' fees but,
instead, addresses the respective responsibilities of the judge and
jury in actions seeking both equitable and legal relief.
Plaintiffs maintain that it is premature for the defendants
to be making this application and that it should await decision of
their appeal. Defendants have received final judgment following
a full trial on the merits, motions requesting a new trial and the
recusal of the trial judge have been denied, and the litigation is
now concluded. The application for attorneys' fees and sanctions
is thus appropriate at this time. Indeed, to defer it until after the
appellate decision could result in piecemeal appeals.
Finally, plaintiffs and their various attorneys contest their
liability for fees and sanctions under each of the statutes and
rules upon which the defendants rely. These will, therefore, be
considered separately.
CA-32
A. The Fair Housing Act
At the time the complaint in this action was first filed,
the Federal Fair Housing Act, 42 U.S.C. §3612(c), provided that
only a prevailing plaintiff could recover his attorneys' fees. A
month later, on September 13, 1988, the Act was amended to
provide for recovery of fees by the "prevailing party," effective
six months thereafter. See 42 U.S.C. §3613(c)(2) (West Supp.
1991). When a decision involves a procedural matter such as
attorneys' fees or sanctions, a court normally applies the law in
effect at the time it renders its decision, even if a change in the
law occurs after the trial and during the pendency of an appeal,
provided that such application would not work a manifest
injustice. Bradley v. School Board of the City of Richmond.
416 U.S. 696 (1974).
Plaintiffs argue that it would be unjust to retroactively
apply the amended attorneys' fee section of the Fair Housing
Act. However, the plaintiffs amended their complaint twice after
the new provision became effective, adding new claims of
economic loss and emotional distress and seeking compensatory
damages. They carried the case forward to an ultimate trial
despite warnings that the act could result in their being
responsible for fees. Moreover, the original complaint, when
filed, included a federal civil rights claim under which attorneys'
fees are payable to the prevailing party. (These counts were
dropped before trial.) See, 42 U.S.C. §§ 1983, 1988. Given that
plaintiffs were subject, in any case, to attorneys' fees when their
complaint was filed, we find nothing manifestly unjust in
holding the plaintiffs responsible, under the Fair Housing Act,
for the reasonable attorneys' fees paid to defense counsel after
the amendment became effective.
Plaintiffs also argue that, regardless of the language of
the statute, it should be construed to require the payment of
attorneys' fees by a losing plaintiff only if their action is totally
meritless. Even were that the rule of law, we would find
plaintiffs responsible for fees to the prevailing party since the
action was totally meritless, as described more fully below.
CA-33
B. Rule 11 of the Federal Rules of Civil Procedure
Rule 11 states, in relevant part, that:
The signature of an attorney or party constitutes
a certificate by the signer that the signer has read
the pleading, motion, or other paper; that to the
best of the signer's knowledge, information, and
belief formed after reasonable inquiry it is well
grounded in fact and warranted by existing law
... that it is not interposed for any improper
purpose, such as to harass or to cause
unnecessary delay or needless increase in the
cost of litigation.
The purpose of Rule 11 sanctions is to deter the filing of
frivolous and abusive actions. Pavelic & LeFlor v. Marvel
Entertainment Group. 493 U.S. 120, 110 S. Ct. 456, 460 (1989).
Unlike § 3613 of the Fair Housing Act, Rule 11 is not intended
to be a fee shifting device. Instead, the Rule was designed to
deter both attorneys and clients from abusing the judicial
process. Therefore, Rule 11 sanctions can be assessed against
either an attorney or client, or both.
This case was commenced by Doris and Elena Sassower
who claimed that the co-op board rejected their application for
purchase because they were Jewish unmarried females.3
Plaintiffs were aware that there were other Jews living in the
building and that, indeed, the sponsors of the co-op were Jewish.
They also knew, or certainly could have found out had they
made inquiry, that there were other single females in the
building. At the time the application was rejected, they were
advised that the primary objection to the purchase concerned
George Sassower, formerly the husband of Doris Sassower, and
3 John McFadden, who originally was a plaintiff, was the seller of
the apartment and purportedly lost his opportunity to complete the sale to
the Sassowers as a result of this alleged discrimination.
CA-34
the father of Elena Sassower.4
The record is clear that the neighbors objected to George
Sassower, who was the primary occupant of the apartment.
Testimony at trial revealed that he was arrested at the apartment.
(We believe that the arrest was for the illegal practice of law.)
After his arrest, which was witnessed by some of the building
residents, Elena Sassower asked some of the Board members if
the arrest would impact their application. Those queried politely
said that that event would not influence their feelings about the
application, but, as it turned out, there were additional objections
to George Sassower lurking in the hallways and smoking cigars.
Another problem with the application was that the prospective
purchasers were Doris Sassower, her son-in-law (both of whom
had assets but did not intend to reside in the building) and Elena
Sassower, who has at times lived in the apartment but lacked
personal assets to make the purchase.5 A suspicion was held by
the Board members that the apartment was primarily intended as
a residence for George Sassower who apparently lacks assets and
viable means of support and had received no equitable
distribution in the divorce from Doris Sassower.6 As the
evidence at the trial clearly indicated, there were a number of
other considerations which made the application for purchase
unacceptable to the 16 Lake Street owners, but none of them had
anything whatever to do with the fact that Doris and Elena
4 George Sassower is a disbarred attorney. George Sassower has
been held in contempt on several occasions. He took to filing totally
frivolous and demented actions against judges throughout this area. When
he was barred from filing any further such frivolous actions in this and
surrounding districts, as well as appeals to the Court of Appeals for the
Second Circuit, he simply shifted his activities to other circuits. These
actions are routinely dismissed.
5 At one point during this litigation, she applied for assignment
of counsel, claiming to be indigent.
6 The fact that George Sassower has no assets has enabled him
to file his numerous scurrilous actions and claims since there are no assets
from which to effect a recovery from him. Testimony at trial revealed
that Mrs. Sassower resided in a two million dollar mansion and that Elena
is an occasional resident there.
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Sassower were Jewish or currently unmarried. The action was
instituted and carried forward at the instigation of Doris
Sassower, who was then a practicing attorney herself,7 for purely
monetary gain.
Plaintiffs make several argument against the application
of sanctions to them. First, they argue, citing Business Guides v.
Chromatic Communications.___U.S.___ , 111 S. Ct. 922
(1991), that sanctions can be invoked only against the person
signing the pleading, motion or paper involved. Business Guides
concerned a situation in which the corporate client had signed
papers in a motion for a temporary restraining order and
preliminary injunction. The lower courts had sanctioned the
client upon finding that these papers had been filed without
reasonable inquiry by the party as required by Rule 11. (The
issue of whether the attorneys should have detected the absence
of reasonable inquiry was mooted by the bankruptcy filing of the
firm involved.) The Supreme Court held, unequivocally, that
Rule 11 applies to represented parties although it did so in the
context of a represented party who signed certain papers. It
noted, however, that the Court was not "convinced that, as a
policy matter, represented parties should not be held to a
reasonable inquiry standard. Quite often it is the client, not the
attorney, who is better positioned to investigate the facts
supporting a paper or pleading. This cases is a perfect example."
Business Guides. I l l S. Ct. at 932. The Court then went on to
hold that parties, whether proceeding pro se or when represented
by counsel, are held to the same objective standard of
reasonableness and are bound to make a reasonable inquiry into
the facts and the law when signing documents to be submitted to
the court. Id. at 933.
We have a hybrid situation in this case. Both of the
plaintiffs were represented at one time or another by several
attorneys or trial counsel. In addition, both of them, at times,
appeared pro se. During the course of this lengthy proceeding,
both of them signed numerous documents. Moreover, both
7 Mrs. Sassower has recently been suspended from the practice
of law pending an examination by a qualified medical expert to determine
whether she is "incapacitated from continuing to practice law." See
Matter of Sassower. N.Y.L.J. (June 21, 1991).
CA-36
directed the actions of the attorneys and trial counsels who were
retained. We believe that under these circumstances the
plaintiffs, both as represented parties and as pro se litigants, may
be held responsible for Rule 11 sanctions should such be
appropriate. To the extent that their activities may fall outside
the ambit of Rule 11, plaintiffs can clearly be sanctioned under
the inherent power of the court to monitor its own proceedings
and to control the conduct of those who appear before them.
Chambers v. NASCO. Inc.. I l l S. Ct. 2123 (1991). Indeed, in
Chambers v. NASCO, supra, the Court determined that the
petitioner, both when represented by counsel and when appearing
pro se, took acts intended to degrade the judicial system and
unreasonably and vexatiously multiplied proceedings and upheld
the district court's imposition of sanctions. It is our view that
the plaintiffs here were guilty of that, as well. ("See discussion
of sanctions under 28 U.S.C. § 1927 below.)
No motion has been made seeking sanctions against the
attorneys who served merely as trial counsel for the plaintiffs,
David B. Cohen, who appeared of counsel to Eli Vigliano, who
was representing Mrs. Sassower, and Jeremy Morley, who was
plaintiffs' trial counsel. However, sanctions are sought against
their counsel of record, Peter Grishman and Eli Vigliano and
also McFadden's attorney, James Glatthaar. Each of them argues
that he signed only certain of the papers submitted in the action
and did so upon a belief that the information being supplied by
the plaintiffs was accurate. We will consider the arguments of
the attorneys separately.
Plaintiffs argue that since sanctions are not sought
against trial counsel Cohen and Morley, none can be assessed
against them. This is simply incorrect. With respect to Cohen,
who never appeared as counsel of record, his activities during
discovery might conceivably have been the basis for the seeking
of sanctions. However, since he was only of counsel to
Vigliano, and withdrew after a few months reportedly
complaining of the hardships of dealing with the Sassowers,
sanctions against him would be excessive.
As to Morley, we see no basis for sanctions whatsoever.
Once he became trial counsel, he attempted to trim back the
excesses of the Sassower to the extent possible. He also tried
the case in a reasonable and appropriate manner despite the
occasional objections of his clients. (Indeed, to this date, they
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object to the manner in which he tried the case, blaming their
failure to prevail on him rather than the lack of merit in the
case.)
C. Sanctions Pursuant to Title 28 U.S.C. § 1927
Title 28 U.S.C. § 1927 (1988) provides:
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 Sassowers pursued this litigation as if it was a holy
war and not a court proceeding, managing these proceedings in a
fashion that vexatiously, wantonly and for oppressive reasons
increased the legal fees enormously. Oliveri v. Thompson. 803
F.2d 1265, 1272 (2nd Cir. 1986), cert, denied sub nom, Suffolk
County v. Grasek. 480 U.S. 918 (1987). They made several
unsupported bias recusal motions based upon this court's
unwilling involvement in some of the earlier proceedings
initiated by George Sassower. See, e.g.. Affeldt v. Carr. I l l
F.R.D. 337 (N.D. Ohio 1986) (Rule 11 sanctions imposed on
attorney who filed recusal motions in an attempt to interfere with
proceedings), affd 827 F.2d 769 (6th Cir. 1987). There were
continual personal attacks on the opposing parties and counsel.8
(See discussion of plaintiffs' latest motion for a new trial below.)
In virtually every instance where a court ruling was not
satisfactory to them, plaintiffs routinely made a motion to
reargue. In addition, the plaintiffs filed two improper
8 Typical of this was Doris Sassower's statement to opposing
counsel during her deposition: "Again, are you crazy? You are totally so
out of order and so improper. You are totally an unprofessional,
despicable individual." Deposition of Doris Sassower (May 16, 1990) at
102-103.
CA-38
interlocutory appeals which were subsequently withdrawn.9 This,
too, is improper. Shields v. Shadier. 120 F.R.D. 123 (D. Colo.
1988). Finally, they have now filed a mammoth motion for a
new trial and sanctions against opposing counsel which seeks to
reargue virtually every aspect of the litigation for the third time.
(See discussion below.) Imposition of sanctions under § 1927
requires a clear showing of bad faith. Qliveri v. Thompson. 803
at 1273. In this instance, this court has not hesitation in finding
that the plaintiffs acted in bad faith,10 11 vexatiously and
unreasonably.11
9 Defendants waived any claim to attorneys' fees as to one of
these appeals. Because we believe that the issue of an improper appeal
is a matter more properly in the hands of the appellate court, we do not
consider costs in that regard.
10 Among other things, the plaintiffs attempted to communicate
directly with the defendants rather than through counsel in order to force
through their settlement demands.
11 We note that we are not the first court to reach such a conclusion
concerning the litigating tactics of Doris Sassower. Justice Samuel G.
Fredman, of the Supreme Court of the State of New York, County of
Westchester, in a contempt proceeding concerning Doris L. Sassower,
described what he terms a veritable nightmare experience:
From the relatively simple molehill of potential
issues which could possibly arise from such conduct,
Sassower has created a mountain of legal, factual and
even political abracadabra. Her actions have taken an
inordinate amount of this Court's time and tested its
patience beyond the wildest imagination.
Breslaw v. Breslaw. Slip Op., Index No. 22587/86 (June 24, 1991), at 2.
Elsewhere in that decision he speaks of
months of actual court time spent in permitting
Sassower to preserve her rights by trick and chicanery
beyond the concept of most any lawyer who practices in
our courts. She is indeed sui generis in her actions, but
she who litigates by the stiletto must face its rebound
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More particularly, we look to the plaintiffs' behavior
with respect to Doris L. Sassower's own discovery. The
discovery in this matter, an onerous task, was supervised by now
retired Magistrate Judge Joel J. Tyler. By a report and
recommendation dated March 27, 1990, he recommended
dismissal of her complaint because of her egregious failure to
make discovery as directed by the court. In response thereto,
she filed a motion for an order disaffirming the report and
remitting the matter to the Magistrate Judge for a ruling on the
discovery practices of the defendants. Since there was no
procedural basis for such a motion, we treated it as simply
opposition to the Magistrate Judge's recommendation and held,
in our memorandum decision dated April 19, 1990:
Essentially, her objections attempt to argue the
underlying facts and continues to claim that it
would be a danger to her health to be deposed in
this case. We find it very strange that filing
motions, conducting depositions, negotiating a
change in the escrow money status on the
contract at issue, and, in general, performing the
functions of an attorney, are apparently not
threatening to her health, but that to appear as a
witness answering questions at a deposition
purportedly would be. According to the Gannett
Westchester newspaper of April 12, 1990 (page
11), there have been contempt proceedings
pending against Doris Sassower in Westchester
County Supreme Court for about a half of a year.
They have had to be adjourned three times
because of her claim of ill health. It is not
surprising that she should feel under some stress
and prefer not going forward with that
proceeding. However, she has been very
vigorous in her litigation in this case.
when it falls the other way.
Id- at 12.
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Doris L. Sassower further argues that the
report could not be adopted because a hearing is
legally required before such an order could issue.
However, since the hearing would concern her
physical condition and she has foreclosed inquiry
of her doctors on that subject, we find this
argument unpersuasive. She also opposes the
magistrate's alternative recommendation that if
the action not be dismissed she should be
directed to peremptorily appear for a deposition
with no further excuses to be accepted. She
argues that her subsequent failure to appear for a
deposition would have to be ignored unless it
was "willful or inexcusable" and, since she
claims her mental and physical state prohibit her
appearance, that would not be likely to come to
pass.
* * * *
It is patently clear that Doris L. Sassower
has been guilty of attempting to manipulate the
court by appearing as attorney on those matters
which could assist her case while refusing to be
deposed herself, claiming health problems. We
were compelled at an earlier time to allow Doris
L. Sassower to appear pro se and to relieve her
attorney because of the law in this Circuit, even
though we could foresee the type of
manipulation that has subsequently occurred.
This court then noted that since George and Elena
Sassower had continued to occupy the apartment in question and
that the dismissal of Doris Sassower's complaint would
accomplish nothing since her daughter, Elena, could continue the
action, no effective sanction would result from accepting the
Magistrate Judge's recommendation.12 We observed, inter alia.
that the circumstances appeared to warrant monetary sanctions
1! We did, however, preclude Doris Sassower from testifying at
trial. Subsequently, she appeared for deposition and was allowed to
testify at trial.
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but in light of the fact that attorneys' fees could be awarded at
the conclusion to the prevailing party, the matter could await the
end of the action.
In addition to her recalcitrance in her own deposition,
Doris Sassower assisted her friend and attorney, Eli Vigliano, in
conducting incredibly harassing depositions of certain of the
defendants. These will be discussed in more detail in the section
below concerning Mr. Vigliano.
The principal opposition offered by the plaintiffs is that
§ 1927 is limited only to attorneys and should not be applied to
an attorney who appears pro se. We do not agree with that
assertion. The section applied to attorneys "or another person
admitted to conduct cases." The plaintiffs sought and were
granted permission to proceed pro se. As the Ninth Circuit
stated in a case involving a pro se litigant who was not an
attorney:
Section 1927 sanctions may be imposed upon a
pro se plaintiff, despite [plaintiffs] protestations
to the contrary. See, gg., Woods v. Santa
Barbara Chamber of Commerce. Inc.. 699 F.2d
484, 485-86 (9th Cir. 1983) (cert, denied), 465
U.S. 1080, 104 S.Ct 1445, 79 L.Ed.2d 765
(1984).
Wages v. I.R.S.. 915 F.2d 1230, 1235-1236 (9th Cir. 1990), cert-
denied. I l l S.Ct 986 (1991). Additionally, we note that § 1927
sanctions can be imposed on an attorney and client jointly and
severally when they are equally blameworthy with respect to the
dilatory and vexatious conduct of the trial. Kendrick v. Zanides,
609 F. Supp. 1162, 1173 (N.D. Cal 1985). Finally, even if we
were to take the view of the Fifth Circuit that § 1927 applied
only to attorneys, sanctions can be imposed on both plaintiffs
under the inherent power of the court because of their tactics of
delay, oppression and harassment. Chambers v. NASCO. supra.
I l l S. Ct. 2123.
CA-42
THE PARTIES AND ATTORNEYS RESPONSIBLE
FOR ATTORNEYS' FEES AND SANCTIONS
The Sassowers
Having determined that the circumstances of this case
warrant sanctions, the culpability of the various parties must now
be assessed. As indicated in the earlier sections, we believe that
both plaintiffs can be held responsible for all of the types of
sanctions sought. An argument can be made that to the extent
that the sanctions such as Rule 11 are intended to deter plaintiffs
rather than reimburse the defendants and to control the conduct
of the litigants, there is little hope of them having any effect
upon Doris Sassower. While she is not in the same league as
her former husband, George Sassower, when it comes to
frivolous litigation she has, nevertheless, been a litigant in a
large number of suits. Moreover, sanctions imposed by courts in
earlier litigations did not restrain the actions by Doris Sassower
in this case.13 Nevertheless, for whatever deterrent effect it may
have, sanctions are appropriate against her.
As to Elena Sassower, because of her relative youth (she
is in her 30's) and the fact that she has not been an attorney
admitted to practice, the facts are not so egregious. While we do
1! Indeed, to quote a distinguished state colleague:
Sassower is accustomed to "getting away with murder"
in the Court system; there is not a single one of my
colleagues who would go to bat for her or accept her
word; this is also true as to her confreres at the Bar,
very few of whom, if any, would raise a finger in her
defense. She has walked to the edge of the ledge of
contempt and/or sanction, including for this very same
offense, on prior occasions. ... I invite the Grievance Committee to study
the record of this proceeding to determine if someone who so misstates
and mistreats the American legal system ought to be afforded the
opportunity to continue to harass the weak and the downtrodden as she
has evidently done, time and time again.
Breslaw v, Breslaw. supra, at 14; see also Muscolino v. Muscolino.
Supreme Court, Westchester County, Index Number 2252/1986.
CA-43
not believe that she if financially able to respond in the payment
of attorneys' fees and sanctions,14 so that these costs will
probably have to be borne solely by her mother, we find it
nevertheless appropriate to administer those costs against her
jointly with her mother.
Peter Grishman
Peter Grishman was the attorney for both of the
Sassowers when this action was initiated. As an attorney, he is
not responsible under the Fair Housing Act for fees. In any
case, Grishman withdrew from the case at about the time the
amendment to the Act allowing prevailing parties to recover
became effective.15
With respect to administering sanctions under Rule 11
and § 1927, the only serious charge made against Grishman by
defense counsel concerns an attempt by the plaintiffs themselves
to settle the case directly with the defendants, going around
defense counsel. Part of plaintiffs tactics was use of a letter
written to defense counsel by Grishman. He states, however,
that he was not personally responsible for the forwarding of this
letter to the defendants. Grishman defends his drafting of the
complaint by arguing it was based on information provided to
“ Midway through the litigation, Elena Sassower asked for the
appointment of counsel, since she claimed to be indigent. Considering
that her mother was being represented by Mr. Vigliano and they were
united in interest, there was no basis for the granting of such a motion.
However, it is some indication of her financial status.
15 He was substituted out of the action by Doris L. Sassower who
sought to represent herself in the spring of 1989. He was relieved by
court order in March 1989 from representing Elena Sassower when he
learned that, without his knowledge, they had made deals with then co
plaintiff McFadden and one of the defendants concerning an escrow fund.
Grishman states that he was only partially compensated for his
services to the Sassowers, and decided to forego any further claims against
the Sassowers. He also states that he had indicated to defense counsel
early in the proceedings that he was thinking of withdrawing, but at least
one of the defense counsel stated that he would object to the application
because he was the only reasonable voice speaking for the plaintiffs.
CA-44
him by his clients and the co-plaintiff. He also contends that
this court's denial, in part, of the defendants' motion for
summary judgment on the grounds that plaintiffs had set forth a
prima facie case against certain of the defendants, demonstrates
that it cannot be said that his actions were to any degree
improper.
The fact that summary judgment was not granted in
favor of those defendants who made the decision not to accept
the Sassowers as owners, does not, as Grishman argues, and as
others have contended, show that there was colorable merit to
the case. The plaintiffs fell into a protected class, and at least
cumulatively had the assets to complete the purchase. They
claimed that their rejection was based on anti-Semitism and
some peculiar bias against unmarried females. The question of
the 16 Lake Street Owners Board's motives was not a matter that
could be resolved on papers because credibility was in issue.
Thus, a trial was needed. However, at its conclusion, the jury,
as finders of fact, rapidly resolved the credibility issues against
the plaintiffs. Nevertheless, we do not see that the actions of
attorney Grishman merit the invocation of Rule 11 sanctions or §
1927 sanctions.16
Eli Vigliano
Eli Vigliano is an attorney with an office in Yonkers.17
During the litigation, Vigliano had revealed that he appeared in
this action because of his personal relationship with Doris
Sassower and not as a paid attorney. We note, however, that in
papers submitted in this application, Vigliano had renewed his
claim to recover counsel fees. In any case, his paid or unpaid
“ In this regard, we note that the supervising Magistrate Judge had
no criticism of his actions while in the case and that Grishman promptly
notified the Magistrate Judge of what he believed to be improper dealings
between the plaintiffs and one defendant.
17 He claims to be a Professor of Law at Pace University School of
Law. However, he has not been listed in the Pace catalogs for the last
four years as either a full-time professor or an adjunct professor. Inquiry
at the Law School reveals that he did teach a single course some five
years ago.
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status is not dispositive of his potential responsibility for Rule 11
or § 1927 sanctions.18 Vigliano points out that during the year
he acted as Doris Sassower's attorney, he retained David B.
Cohen to do most of the work for him, and that, at trial, Jeremy
D. Morley acted as counsel for both plaintiffs, although Vigliano
was present at the trial and participated to a limited extent.
Consequently, he notes that very few of the documents that were
filed were over his signature and that only one of the
objectionable ones concerned an attempted interlocutory appeal.
(See fn. 9 and accompanying text, supra.) On the basis of
documents, trial work and the complaint, we do not find him
responsible for Rule 11 sanctions. However, Vigliano conducted
some of the discovery depositions of the defendants. Two of
them were particularly shocking and abusive. During the
deposition of Director Daisy Hobby, a black woman, he asked
her many totally irrelevant racial questions pertaining to persons
uninvolved in the case, for the obvious purpose of stirring her up
against her co-defendants and in favor of the plaintiffs.19 The
questions he asked were reprehensible and clearly in violation of
§ 1927. He proceeded in the same fashion during the deposition
of Curt Haedke. We find that these actions violated § 1927 and
require sanctions. 16
16 He also points out that he was relieved as attorney for Doris
Sassower following the trial of the action but we do no see the pertinency
of that fact.
” Some of the irrelevant questions asked of Mrs. Hobby were:
(1) Mrs. Hobby, do you remember the second World War?
(2) Did you ever hear of a woman named Marian Anderson?
(3) Now, did you ever hear of Jackie Robinson?
(4) Before Jackie Robinson played in the major league, were there any
blacks playing baseball in the United States?
The deposition continued in that tenor, pursuing irrelevant and
improper questions.
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Co-Plaintiff McFadden and his Counsel
John McFadden was in a peculiar position throughout the
events leading up to and during this litigation for several
reasons. At the time of the application by the Sassowers to buy
the apartment, although he no longer resided at 16 Lake Street,
McFadden was still the President of the Co-op Board. As the
president, he had easy access to, and the complete cooperation
of, the Board's attorney, Roger Esposito, and the management
company, DeSisto Management, Inc., which contracted with the
Board to handle certain business aspects. With their assistance,
he was able to informally cut certain comers with respect to the
Sassowers' occupancy under a sub-lease. Indeed, purportedly
with Board permission, Esposito was representing McFadden on
the transfer and sale.
When it became clear that the board was not going to
accept the Sassower application, McFadden was in a difficult
position. Neither he nor, for that matter, the Board could get
George and Elena Sassower to vacate the apartment. (To date,
they continue to occupy the apartment while a landlord-tenant
proceeding drags on in White Plains City Court.) Additionally,
McFadden had only a limited time under the International
Revenue Code to sell the apartment or suffer adverse tax
consequences. Consequently, his personal interests supported
the sale to the Sassowers. Moreover, the Sassowers made it
clear that if he did not join them as a party voluntarily, he would
be joined involuntarily as a defendant.20 McFadden's cooperation
was additionally valuable to the Sassowers because (1) it
provided insight into the rather informal and loose manner in
which the Board of the cooperative apartment operated and (2)
his participation as plaintiff permitted the complaint and the first
amended complaint to appropriately contain causes of action
based on McFadden's role as a shareholder in 16 Lake Street
Owners, Inc., which complained of a lack of formal process and
2°His counsel now states "Mr. McFadden was coerced by plaintiffs
Elena Ruth Sassower and Doris L. Sassower to join as plaintiff."
McFadden Memorandum at 13.
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adherence to the co-op's by-laws in the application procedure.21
McFadden, thus, was placed in a compromised position. He,
himself, was a shareholder in the cooperative and any damages
which might have to be paid could come in part from him,22
since, McFadden states, the insurance carrier reserved its rights
to disclaim its coverage under the policy. Moreover, he and his
attorney found that they were aligned with rather difficult co
plaintiffs. They considered in 1989 getting out of the case and
in May 1990, McFadden finally moved to be allowed to
withdraw from the action. The Sassowers objected to this,
arguing primarily that they needed his evidentiary assistance in
the case. When he agreed to cooperate in that regard, their
objections were withdrawn and his motion was granted.
McFadden was a participant in the proceedings for over
a year after 42 U.S.C. § 3613(c) made attorneys' fees available to
the prevailing party. However, he points out that when the
defendants became prevailing parties, he as no longer an
opposing party. Moreover, he argues that he withdrew as soon
as it became apparent that it was unreasonable to continue
litigation. See Oliveri v. Thompson. 803 F.2d at 1277
(awareness of evidence showing claim was not colorable requires
discontinuance of action). He claims that, as early as October
21 The Sassower plaintiffs took a curious approach to these causes
of action. They believed that even after McFadden withdrew as plaintiff
that as applicants to be stockholders they had a right to pursue these
causes of action. Moreover, they seemed to believe that procedural
infirmities in the manner in which the application was rejected would
result not merely in a direction that they be properly performed, but in the
awarding of the apartment and shares in the cooperative to them, along
with substantial damages.
22 The plaintiffs object to the cooperative's insurance carrier
providing the costs of representation in this action, arguing that it is
contrary to public policy to have insurance against being sued for the
commission of discriminatory acts. We believe they are wrong in that
regard to the extent that you can be insured against the unjustifiable
assertion of such claims. Had the plaintiffs prevailed, the question of
whether the insurance company could properly indemnify the Board for
any damages payable as a result of housing discrimination would be an
entirely different matter.
CA-48
1988, before the amendment became effective, he told his
counsel that he wished to withdraw and was told that this would
only be feasible after his deposition had been concluded. This
did not occur until September 1989. Under these circumstances,
we agree that he cannot be held responsible for attorneys' fees
under the Fair Housing Act.
There is no claim that either McFadden or his attorney
were responsible for causing the case to proceed unreasonably or
vexatiously. Unlike the Sassowers, he did not make motions for
reargument, for amendment, for delays in discovery, or to
compel additional discovery, nor did he move to sanction
anyone. McFadden is, however, charged with improperly
attempting to settle the matter directly with the defendant board
by going around defense counsel. In light of the fact that he was
a shareholder in the defendant corporation, as well as a former
neighbor and close associate of the board members, his
impropriety in that regard can be overlooked.
When we come to Rule 11, however, a much closer
question emerges. McFadden points out that neither he nor his
attorney signed the complaint and that very few of the other
documents in the case were signed by them. While this is true,
McFadden and his counsel did join in the suit. Their primary
wrongdoing was in suing McFadden's own previous attorney and
the management agent, both of whom had worked on his behalf
when he was trying to get the sale of the apartment to the
Sassowers approved by the Board. In his affidavit in opposition,
at f 31, McFadden states:
I have spoken with Roger Esposito many times
both before and after this action was
commenced. He was the attorney representing
me in the sale of Apt. 2C to co-plaintiffs Elena
Ruth Sassower and Doris L. Sassower and was
the attorney for 16 Lake Street Owners, Inc. I
have always told him that I regret his having
been dragged into this action. Nor have I ever
understood the reason why he was named a party
to this action.
* * *
I also spoke with Anthony DeSisto both
before and after this action was commenced. I
CA-49
also told him I regretted having been dragged
into the action. I also was not sure why his
company was a party.
His attorney, James W. Glatthaar, takes much the same
position. In his affidavit at HU 23, 24 and 25, he states:
1 respectfully submit that I, at all times, opposed
the naming of DeSisto and Esposito as parties to
this action. I felt this way for several reasons.
First, Esposito was the attorney who represented
John McFadden in the proposed sale of Apt. 2C.
I could find nothing in his representation that
was improper. Second, neither Mr. DeSisto nor
Mr. Esposito had decision-making powers in
connection with this application. Third, Mr.
Esposito's former law firm is counsel to
Broadpark Lodge Corp., a cooperative
corporation of which I am a shareholder and past
president. As a president I dealt with Mr.
Esposito from time to time. Forth, I saw no
basis for claims against either DeSisto or Mr.
Esposito. Finally, I spoke with both Mr. DeSisto
and Mr. Esposito before the action was
commenced. Both indicated their testimony
would be helpful.
24. Notwithstanding the above, the
action was commenced within one (1) week after
I first met with Doris L. Sassower. She insisted
upon commencing the action instantly before her
mortgage commitment expired. She was
insistent that DeSisto and Mr. Esposito be named
as a party for their role in this matter.
25. After the action was commenced
Mr. McFadden and I discussed the possibility of
stipulating to discontinue. We also discussed the
possibility of allowing DeSisto and Mr. Esposito
to be dropped as parties. However, plaintiffs
adamantly opposed such a stipulation.
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Their own words attest to the fact that at the time the
complaint was filed, both McFadden and his counsel were aware
that suit against Esposito and DeSisto was improper.
Nevertheless, they allowed the suit in McFadden's name to go
forward.
The question, therefore, is whether a knowledgeable
plaintiff and an experienced attorney can excuse their actions in
suing clearly innocent parties merely to pacify an insistent Doris
Sassower. We think not. Either under Rule 11 or the equitable
powers of the court, they should be compelled to reimburse
Esposito and DeSisto for a portion of their attorneys' fees.23
ATTORNEYS' FEES AND SANCTIONS
PAYABLE TO DEFENDANTS
The next matter to be addressed is the actual fees and
sanctions. We emphasize that all fees and sanctions are to be
paid directly to the defendants.
A. Attorneys' Fees Payable by Plaintiffs Under
the Fair Housing Act
The attorney for 16 Lake Street Owners, Inc. and the
various individual board members, Lawrence J. Glynn, seeks
$142,625 in attorneys' fees, as well as costs and expenses in the
amount of $850. This is based on 570.5 hours of work billed at
$250 an hour. We have already decided that he should not,
under the Fair Housing Act, be reimbursed for the time spent
prior to March 10, 1989, when the amendment providing for
attorneys' fees to a prevailing party took effect. The record
indicates that 3/16ths of the time charged was expended during
that period. We have also noted that Glynn was accepting $100
an hour from the insurance carrier which leads us to the
conclusion that the claimed hourly charge of $250 an hour is
excessive.
23 Obviously, they were going to be sued by the Sassowers even
without McFadden's participation, but his participation exacerbated the
problem.
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Plaintiffs raise many objections to the time charges,
claiming that they are not contemporaneous and are patently
deficient and fraudulent. For example, they note that the time
sheets of Diamond, Rutman record the same number of hours for
the conducting of depositions as does Glynn, attorney for the
board and this is indicative of copying. Logic dictates that if
both attorneys were present for the deposition, they should have
been present for the same number of hours. Conversely, they
note that other attorneys bill time for meetings with Glynn that
do not appear in Glynn's records. Why they should complain
about this as it pertains to Glynn, we cannot imagine. While
there may be deficiencies in Glynn's recordkeeping, they are not
substantial. However, some of the time billed by Glynn and
submitted here concerned the City Court proceedings seeking
unsuccessfully to evict the Sassowers and should not be included
as part of this case. Under the circumstances, we award him
$50,000 in fees, plus $850 for expenses.
The attorney for Hale Apartments, Dennis T. Bernstein,
seeks fees for a total of 218 hours at $100 an hour, plus $772 in
disbursements. (Some additional time is charged after the
granting of summary judgment on behalf of his client.) Of this,
however, almost half of the time was spent before the
amendment to the Act. His time sheets, plaintiffs' complaints
notwithstanding, are quite accurate and informative. His client is
awarded $12,000 in fees and $500 in disbursements.
The firm of Diamond, Rutman & Costello, representing
defendant Roger Esposito, seeks $39,345.24 based on 466.75
hours, including a little over $2,000 in litigation expenses. Its
billing rate is $80 per hour, the lowest of any of the defense
lawyers. As with the other attorneys, some of their time was
expended prior to the Act being amended and may not, therefore,
be awarded to the defendants. We also believe the hours
expended are excessive, even allowing for the difficulty of
dealing with plaintiffs and their attorneys. In addition, we note
that Diamond, Rutman was sanctioned by the Magistrate Judge
because of improprieties during discovery and ordered to pay
$8,000 to the Sassowers. Under the circumstances, Esposito is
awarded only $18,000 for fees and expenses as a prevailing
party.
Marshall, Conway & Wright, as attorneys for DeSisto
Management, seeks $21,556 in fees and disbursements. Their
CA-52
time sheets are extremely inadequate in that they do not set forth
the amount of time involved or the hourly rate being charged for
each service. Indeed, these items are never totalled up. (Hourly
expenditures appear only starting on June 27, 1990.)
Consequently, DeSisto Management is awarded only $12,000 in
attorneys' fees and expenses.
B. Sanctions for Unnecessarily Prolonging the Action
Pursuant to 28 U.S.C. § 1927
The effect of prolonging the action was simply to
increase the attorneys' fees of the defendants which have been
reimbursed above. Consequently, as it pertains to the plaintiffs
who are liable for those fees, there is no need to add them on
top. However, on the possibility that the awarding of attorneys'
fees to the prevailing party pursuant to the Fair Housing Act is
not upheld on appeal, we will set forth the amount of § 1927
sanctions which would alternatively be payable by the plaintiffs
to the defendants:
To the clients of:
1. Lawrence J. Glynn: $20,000
2. Dennis T. Bernstein: $7,000
3. Diamond, Rutman & Costello: $7,500
4. Marshall, Conway & Wright: $7,500
Eli Vigliano, as noted above, is not responsible for
attorneys' fees under the Fair Housing Act or Rule 11 sanctions.
However, in light of his behavior at depositions, he is directed to
pay $1,000 to Daisy Hobby and $500 to Curt Haedke.
C. Rule 11 Sanctions
These sanctions are not directly connected with the fees
expended by the defense attorneys nor can they be prorated in
that fashion. We find that the appropriate sanction against the
plaintiffs for commencing and prosecuting this meritless
litigation is the sum of $50,000. However, we note that the total
attorneys' fees to be paid under the above disposition far exceeds
that amount. Consequently, as to the plaintiffs who must pay
those fees we do not believe that Rule 11 sanctions need be
administered as an additional sanction. In the event that it
should ultimately be held that they are not required to pay
CA-53
attorneys' fees under the Fair Housing Act, these sanctions will
stand with one-half to be paid to the clients of Lawrence J.
Glynn and the remainder to be distributed equally among the
clients of the other firms.
As noted earlier, John McFadden and his counsel are in
violation of Rule 11 independently with respect to their suing
DeSisto Management and Roger Esposito. We assess Rule 11
sanctions against that plaintiff and his counsel, jointly and
severally, in the amount of $3,000 to be paid to DeSisto
Management and $3,000 to be paid to Roger Esposito.
THE PLAINTIFFS' MOTION FOR SANCTIONS
ATTORNEYS' FEES AND A NEW TRIAL
Plaintiffs move for sanctions, attorneys' fees and a new
trial under Rule 60(b)(3) of the Federal Rules of Civil Procedure.
This motion was made months after the trial and weeks after
receiving the defendants' motion for sanctions and attorneys'
fees, while plaintiffs were complaining that they had inadequate
time to respond to their opponent's motion. Rule 60(b)(3)
permits a motion for relief from judgment or order based upon
fraud, misrepresentation or misconduct of an adverse party.
The plaintiffs' papers in support of this motion are
several hundred pages in length supported by about a thousand
pages in exhibits. We cannot find any rationale for such
voluminous papers except a possible belief by the plaintiffs that
the court could not possibly find time to read through all of
them, which would necessitate a delay in ruling on the
defendants' earlier motion because the plaintiffs' papers contain
opposition to that motion, as well.24
Plaintiffs' motion attempts to reargue for the third time
all of the previous discovery and substantive rulings adverse to
plaintiffs, as well as their request for a new trial which had
already been made and denied by decision dated May 16, 1991.
One has to wonder what was the true motive for such a bizarre
motion. The plaintiffs claim they have documentary evidence
24 One of the more interesting parts of plaintiffs' papers is on page
17 of Affirmation C. Although the page number is neatly typed at the
bottom, the page is otherwise blank.
CA-54
demonstrating the fraud, peijury and chicanery of opposing
counsel which constitutes fraud under Rule 60(b)(3). They do
cite to many documents but these documents are mostly their
own earlier affidavits and memorandum of law. (The plaintiffs'
arguments do not improve by repetition.) Their view of any
factual dispute has been, all along, that their claims are to be
acknowledged without dispute and the contrary evidence of the
defendants is to be rejected as fraud and peijury. When matters
reach this state, there is no alternative except to have the
credibility of the parties tested at a trial. We had such a trial
and the Sassowers' case was found by the jury to be wanting.
We have reviewed the evidence and have already held that the
jury verdict was not contrary to the weight of the evidence.
The plaintiffs attempt to prove misconduct by the
opposing attorneys by citing to a footnote in this court's
memorandum decision, dated October 11, 1990, in which we
stated:
The behavior of the attorneys and the parties to
this action are unprecedented and, when the case
is concluded, some action should be taken with
respect thereto.
What plaintiffs fail to observe is that the footnote is appended to
a description of plaintiffs' own earlier obstructive tactics.
Additionally, plaintiffs' claim that they have been deprived of
property of a substantial value because of the failure of the
defendants to sign the original of their deposition transcripts and
return them to the plaintiffs. This has no relevance under Rule
60(b)(3). In any case, the rules quite clearly state the manner in
which such a failing can be overcome. A signed original
deposition transcript is not essential to the trial of an action.
Moreover, we find the argument somewhat specious in light of a
letter sent to us by the court reporter who produced these
transcripts, complaining that the Sassowers had not paid her.
Plaintiffs demand disciplinary sanctions to uphold the
dignity of the court against all of the various defense attorneys
involved in this case pursuant to Rule 4(f) of the General Rules
of the United States District Courts for the Southern and Eastern
Districts of New York. We do not see that rule as providing any
rights to the plaintiffs whatsoever. If any attorney were to be
CA-55
subjected to that rule, it would be Doris Sassower, but since she
has been suspended from the practice of law in this state that
might be an act of supererogation.
As a final matter, we note that on June 17, 1991, the
plaintiffs filed a notice of appeal from the judgment in this case
and the decision denying plaintiffs' motion for recusal and a new
trial, as well as the denial of reargument thereof. To date, the
plaintiffs have not ordered the transcripts of the trial. We
perceive the possibility that plaintiffs may be intending to appeal
on the basis of the papers contained in their lengthy motions
which would result in the Court of Appeals not having the
papers opposing the motions nor having the trial transcript.
Should that be the plaintiffs' intent, it can be dealt with
appropriately at a subsequent time.
CONCLUSION
Attorneys' fees and sanctions are awarded to the
defendants to be paid by the named plaintiffs and attorneys as
described. Plaintiffs' motion is in all respects denied.
SO ORDERED
Dated: White Plains, N.Y.
August 12, 1991
GERARD L. GOETTEL
U.S.D.J.
CA-56
CASES CITED IN PLAINTIFFS’ PETITION FOR
REHEARING AND SUGGESTION FOR RE HEARING EN
BANC WITH WHICH THE SECOND CIRCUIT'S
OPINION CONFLICTS
SUPREME COURT CASES:
Business Guides v. Chromatic Comm.. 498 U.S.___ (1991)
Chambers v. Nasco. Inc.. I l l S.Ct. 2123 (1991)
Christianburg Garment Co. v. EEOC. 434 U.S. 412 (1978)
Hensley v. Eckerhart. 461 U.S. 424 (1983)
Hall v. Cole. 412 U.S. 1 (1973)
Hazel-Altas Glass Co. v. Hartford-Empire Co.. 322 U.S. 238
(1944)
Roadway Express Inc, v. Piper. 447 U.S. 752 (1980)
United States v. Aetna Casualty & Surety Co.. 338 U.S. 366
(1949)
SECOND CIRCUIT CASES:
Brocklesbv Transport v. Eastern States Escort. 904 F.2d 131
(2nd Cir. 1990)
Browning Debenture Holders' Committee v. Dasa Corp.. 560
F.2d 1078 (2nd Cir. 1977)
Dow Chemical Pacific Ltd, v. Rascator Maritime S.A., 782 F.2d
329 (2nd Cir. 1986)
I. Mever Pincus & Assoc, v. Oppenheimer & Co.. 936 F,2d 759
(2nd Cir. 1991)
Faraci v. Hickev-Freeman Co.. 607 F.2d 1025 (2nd Cir. 1979)
Greenberg y. Hilton International Co.. 870 F.2d 926 (2nd Cir.
1989)
Leber-Krebs, Inc, v. Capitol Records. 779 F.2d 895 (2nd Cir.
1985)
McMahon v. Shearson/American Express. Inc.. 896 F.2d 17 (2nd
Cir. 1990)
New York Ass'n. for Retarded Children v. Carey. 711 F.2d 1136
(2nd Cir. 1983)
Oliveri v. Thompson. 803 F.2d 1265 (2nd Cir. 1986)
Sanko S.S. Co.. Ltd, v. Galin. 835 F.2d 51 (2nd Cir. 1987);
United States v. International Brotherhood of Teamsters. 948
F.2d 1338 (2nd Cir. 1991).
CA-57
TAKEN FROM SEPTEMBER 22, 1988 REPLY AFFIDAVIT
OF DORIS L. SASSOWER IN SUPPORT OF PLAINTIFFS'
MOTION FOR A PRELIMINARY INJUNCTION:
AT PAGE 9:
...to permit Defendants (and the Court) a more balanced
evaluation of past actions and circumstances, I offer a copy of
my biographic data taken from the 1988 Edition of Martindale-
Hubbell's Law Directory. That publication, incidentally, gives
me its hightest rating of an "AV" as to my credit-worthiness and
competence [I also annex]... a copy of a certificate from Andrew
O'Rourke [Westchester County Executive] dated June 20, 1986,
expressing his appreciation to me for my service to the County
of Westchester (Exhibit "D" ).
EXHIBIT "D" THERETO:
DORIS L. SASSOWER, bom New York, N.Y., September 25,
1932; admitted to bar, 1955, New York; 1961, U.S. Supreme
Court, U.S. Claims Court, U.S. Court of Military Appeals and
U.S. Court of International Trade. Education: Brooklyn College
(B.A., summa cum laude, 1954); New York University (J.D.,
cum laude, 1955). Phi Beta Kappa. Florence Allen Scholar. Law
Assistant: U.S. Attorney's Office, Southern District of New York,
1954-1955; Chief Justice Arthur T. Vanderbilt, Supreme Court of
New Jersey, 1956-1957. President, Phi Beta Kappa Alumnae of
New York, 1970-71. President, New York Women's Bar
Association, 1968-1969. President, Lawyers' Group of Brooklyn
College Alumni Association, 1963-1965. Recipient:
Distinguished Woman Award, Northwood Institute, Midland,
Michigan, 1976. Special Award "for outstanding achievements
on behalf of women and children," National Organization for
Women-NYS, 1981; New York Women's Sports Association
Award "as champion of equal rights," 1981. Distinguished
Alumna Award, Brooklyn College, 1973. Named Outstanding
Young Woman of America, State of New York, 1969.
Nominated as candidate for New York State Court of Appeals,
1972. Columnist: ("Feminism and the Law") and Member,
Editorial Board, Woman's Life Magazine, 1981. Author: Book
Review, Support Handbook, ABA Journal, October, 1986;
CA-58
Anatomy of a Settlement Agreement, Divorce Law Education
Institute 1982; "Climax of a Custody Case," Litigation, Summer,
1982; "Finding a Divorce Lawyer you can Trust," Scarsdale
Inquirer, May 20, 1982. "Is this Any Way to Run an Election?"
American Bar Association Journal, August 1980; "The
Disposable Parent: The Case for Joint Custody," Trial Magazine,
April, 1980. "Marriages in Turmoil: The Lawyer as Doctor,"
Journal of Psychiatry and Law, Fall, 1979. "Custody's Last
Stand," Trial Magazine, September, 1979; "Sex Discrimination-
How to Know It When You See It," American Bar Association
Section o f Individual Rights and Responsibilities Newsletter,
Summer, 1976; "Sex Discrimination and The Law," N Y Women's
Week, November 8, 1976; "Women, Power and the Law,"
American Bar Association Journal, May 1976; "The Chief
Justice Wore a Red Dress," Woman in the Year 2000, Arbor
House, 1974; "Women and the Judiciary: Undoing the Law of
the Creator, Judicature, February 1974; "Prostitution Review,"
Juris Doctor, February,, 1974; "'No-Fault' Divorce and Women's
Property Rights," New York State Bar Journal, November, 1973;
"Marital Bliss: Till Divorce Do Us Part," Juris Doctor, April,
1973; "Women's Rights in Higher Education," Current,
November 1972; "Women and the Law: The Unfinished
Revolution," Human Rights, Fall 1972; "Matrimonial Law
Reform: Equal Property Rights for Women," New York State
RarAmerican Bar Association Journal, April, 1971; "The Role
of Lawyers in Women's Journal, October 1972; "Judicial
Selection Panels: An Exercise in Futility?" New York Law
Journal, October 22, 1971; "Women in the Law: The Second
Hundred Years," American Bar Association Journal, April 1971;
The Role of Lawyers in Women's Liberation," New York Law
Journal, December 30, 1970; "The Legal Rights of Professional
Women," *Contemporary Education, February, 1972; "Women
and the Legal Profession," Student Lawyer Journal, November,
1970; "Women in the Professions," Women's Role in
Contemporary Society, 1972; "The Legal Profession and
Women's Rights," Rutgers Law Review, Fall, 1970; "What's
Wrong With Women Lawyers?", Trial Magazine, October-
November 1968. Address to: The National Conference of Bar
Presidents, Congressional Record, Vol. 115, No. 24 E 815-6,
February 5, 1969; The New York Women's Bar Association,
CA-59
Congressional Record, Vol. 114, No. E5267-8, June 11, 1968.
Director: New York University Law Alumni Association, 1974;
International Institute of Women Studies, 1971; Institute on
Women's Wrongs; 1973; Executive Woman, 1973. Co
organizer, National Conference of Professional and Academic
Women, 1970. Founder and Special Consultant, Professional
Women's Caucus, 1970. Trustee, Supreme Court Library, White
Plains, New York, by appointment of Governor Carey, 1977-
1986 (Chair, 1982-1986). Elected Delegate, White House
Conference on Small Business, 1986. Member, Panel of
Arbitrators, American Arbitration Association. Member: The
Association of Trial Lawyers of America; The Association of the
Bar of the City of New York; Westchester County, New York
State (Member: Judicial Selection Committee; Legislative
Committee, Family Law Section), Federal and American (ABA
Chair, National Conference of Lawyers and Social Workers,
1973-1974; Member, Sections on: Family Law; Individual Rights
and Responsibilities Committee on Rights of Women, 1982;
Litigation) Bar Associations; New York State Trial Lawyers
Association; American Judicature Society; National Association
of Women Laywers (Official Observer to the U.N., 1969-1970);
Consular Law Society; Roscoe Pound-American Trial Lawyers'
Foundation; American Association for the International
Commission of Jurists; Association of Feminist Consultants;
Westchester Association of Women Business Owners; American
Womens' Economic Development Corp.; Womens' Forum.
Fellow: American Academy of Matrimonial Lawyers; New York
Bar Foundation.