13 F.3d 625 (2nd Cir. 1994), 498, Rounseville v. Zahl

Docket Nº:498, Docket 93-7441.
Citation:13 F.3d 625
Party Name:Herbert W. ROUNSEVILLE and Robert Rounseville, Plaintiffs-Appellants, v. Samuel ZAHL, Treva M. Way, and Geoffrey P. Serata, Defendants-Appellees.
Case Date:January 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 625

13 F.3d 625 (2nd Cir. 1994)

Herbert W. ROUNSEVILLE and Robert Rounseville, Plaintiffs-Appellants,


Samuel ZAHL, Treva M. Way, and Geoffrey P. Serata,


No. 498, Docket 93-7441.

United States Court of Appeals, Second Circuit

January 11, 1994

Argued Oct. 13, 1993.

Page 626

[Copyrighted Material Omitted]

Page 627

Ronald R. Benjamin, Binghamton, NY, for plaintiffs-appellants.

Kenneth S. Kagan, Waverly, NY (William S. Friedlander and Friedlander, Friedlander, Reizes & Joch, on the brief), for defendants-appellees.

Before: NEWMAN, Chief Judge, KEARSE, Circuit Judge, and POLLAK, [*] District Judge.

JON O. NEWMAN, Chief Judge:

This appeal, which primarily concerns the elements of a malicious prosecution action under New York law, arises in a combative context that does little credit to any of the litigants. First, the appellant tax assessors assessed the properties of the appellees. The appellees responded by initiating criminal charges against the tax assessors. The assessors countered with the pending suit asserting a federal civil rights claim and a state law claim for malicious prosecution. When the smoke cleared in the District Court, the assessors' suit was dismissed, and the property owners, who had first resorted to the courts, were awarded attorney's fees and Rule 11 sanctions. Not surprisingly, that outcome has been appealed.

Plaintiffs-appellants Herbert and Robert Rounseville appeal from the April 14, 1993, judgment of the District Court for the Northern District of New York (Howard G. Munson, Judge) dismissing their complaint, awarding attorney's fees to defendants, and imposing Rule 11 sanctions upon their counsel. See Rounseville v. Zahl, 819 F.Supp. 1148 (N.D.N.Y.1993). We hold that there are disputed issues of fact that preclude summary judgment dismissal of the Rounsevilles' state law malicious prosecution claim on the merits. We also hold that the defendants are not entitled to attorney's fees and that the District Court should not have imposed Rule 11 sanctions. Finally, we conclude that, with the federal claim properly dismissed, the District Court should relinquish jurisdiction over the remaining state law claim and leave these litigants to continue their sparring, if they wish, in state court.


Few citizens are pleased with their share of a community's tax burden. Unfortunately, the defendants-appellees, Samuel Zahl, Treva M. Way, and Geoffrey P. Serata, three citizens of Richford, New York, decided to express frustration with their tax bill by initiating criminal charges against the Town Assessors for Richford, Herbert and Robert Rounseville. When these charges were not pursued, the Rounsevilles sought their measure of revenge by instituting a claim under 42 U.S.C. Sec. 1983 with a pendent state law claim for malicious prosecution.

Zahl, Way, and Serata were among a group of Richford residents unhappy over various tax assessment practices of the Rounsevilles. Specifically, the appellees believed their properties were assessed too high, and they were irritated by a plan to raise assessments piecemeal over three years. After reviewing public tax rolls that they believed revealed improper acts by the Rounsevilles, the appellees approached the local District Attorney. When he declined to act, the appellees took it upon themselves to initiate a criminal prosecution against the Rounsevilles. On March 25, 1989, at the home of Judge James W. Barrett, the Richford Town Justice, the defendants swore to an accusatory instrument, which was typed out by Judge Barrett's wife, alleging that the Rounsevilles engaged in official misconduct in violation of N.Y.Penal Law Sec. 195.00 (McKinney 1988). The District Attorney refused to prosecute and recommended dismissal of this charge. A dismissal was entered on May 13, 1989, by Judge Barrett.

The Rounsevilles then brought this suit against the appellees and Judge Barrett. The plaintiffs asserted that the defendants had conspired with Judge Barrett to bring false criminal charges. Judge Barrett's involvement

Page 628

as a state actor served as the basis for the section 1983 claim and thus for federal jurisdiction.

After limited discovery, defendants moved for summary judgment. The Rounsevilles did not file papers in opposition to the defendants' summary judgment motion, but in a letter to the District Court, after the time for response papers, the Rounsevilles sought an adjournment or leave to file late papers. The District Court denied these requests, heard oral arguments the next week, and issued a ruling in favor of the defendants in all respects.

On appeal, the Rounsevilles claim that the District Court (1) abused its discretion by denying their request for an adjournment or leave to file late papers, (2) erred in granting summary judgment for defendants because there are factual issues in dispute, (3) improperly awarded attorney's fees under section 1988 to the defendants, and (4) abused its discretion by imposing Rule 11 sanctions against their counsel.


I. Denial of Motion for Adjournment or Leave to File Late Papers

The defendants first moved for summary judgment in June of 1991. Involved with a trial in another case, counsel for the Rounsevilles sought an adjournment until December 13, 1991, but defendants would consent to an adjournment only until November 8, 1991. Under the local rules in the Northern District of New York, the Rounsevilles' response papers were thus due October 25. Judge Munson's clerk telephoned the Rounsevilles' counsel when this deadline had passed without the submission of opposition papers, and only then did counsel respond with a letter and affidavit seeking an adjournment or leave to file late papers. Counsel for the Rounsevilles claimed primarily that he was seeking to settle this case with Judge Barrett, a course that would have eliminated the section 1983 claim and permitted the relocation of the rest of the case to state court.

The denial of an adjournment was within the District Court's ample discretion. See Dow Chemical Pacific Ltd. v. Rascator Maritime S.A., 782 F.2d 329, 341 (2d Cir.1986); see generally 5 James W. Moore et al., Moore's Federal Practice p 40.02 (2d ed. 1993). Counsel for the Rounsevilles does not present any compelling reason why settlement could not have been effected prior to October 25 or why he could not at least have made his adjournment request before the deadline.

II. Summary Judgment for Defendants

A. Section 1983 claim. The District Court granted summary judgment dismissal of the Rounsevilles' section 1983 claim by (1) concluding that the Rounsevilles had not been deprived of any right, privilege, or immunity secured by the Constitution or the laws of the United States, and (2) finding that the Rounsevilles had failed to come forward with enough evidence of a conspiracy involving Judge Barrett to satisfy the state action requirement of section 1983. The Rounsevilles apparently do not contest the dismissal of their section 1983 claim, as their brief challenges only the grant of summary judgment on the pendent state law malicious prosecution claim.

B. Malicious Prosecution Claim. To prevail on a malicious prosecution claim under New York law, a plaintiff must establish (1) the initiation or continuation of a criminal proceeding against plaintiff, (2) termination of the proceeding in plaintiff's favor, (3) the lack of probable cause for commencing the proceeding, and (4) actual malice as the motivation for defendant's actions. See Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455, 455 N.E.2d 1248, 1249 (1983); Martin v. City of Albany, 42 N.Y.2d 13, 16, 396 N.Y.S.2d 612, 614, 364 N.E.2d 1304, 1306 (1977); Posr v. Doherty, 944 F.2d 91, 100 (2d Cir.1991).

1. Initiation of Criminal Proceeding. There is no dispute that the defendants swore out an accusatory instrument, which would appear under New York law to satisfy the requirement that the defendants' initiated a criminal proceeding against the Rounsevilles. See DeFilippo v. County of Nassau, 183 A.D.2d 695, 696, 583 N.Y.S.2d

Page 629

283, 284 (2d Dep't 1992). On appeal, the defendants do not contest the District Court's holding that the first element of a malicious prosecution claim was established.

2. Termination of Proceeding in Plaintiffs' Favor. The Rounsevilles claim that the local District Attorney's recommendation to dismiss the criminal charges brought by the defendants amounts to a formal abandonment of their prosecution, which, according to one New York decision, constitutes a favorable termination for the accused, see Loeb v. Teitelbaum, 77 A.D.2d 92, 101-02, 432 N.Y.S.2d 487, 493-94 (2d Dep't 1980). The defendants counter that the District Attorney had stated that he would not pursue the matter because it would require hiring an independent assessor. The defendants thus assert that the prosecution was concluded "in the interest of justice," which under New York law does not amount to a favorable termination, see, e.g., Ryan v. New York Telephone Co., 62 N.Y.2d 494, 504-05, 478 N.Y.S.2d 823, 829, 467 N.E.2d 487, 493 (1984); Manno v. State of New York, 176 A.D.2d 1222, 1223, 576 N.Y.S.2d 717, 717 (4th Dep't 1991).

The District Court emphasized that the Rounsevilles had not presented specific evidence that the criminal proceeding was terminated in their favor. The District Court thus ruled that the defendants "met their summary judgment burden by pointing to the absence of evidence to support this prong of the prima facie test on plaintiffs' claim for malicious prosecution." 819 F.Supp. at 1162. Yet, when the grounds for the dismissal of a criminal proceeding are unclear, New York courts consider whether the proceeding was terminated in plaintiff's favor to be a question of fact that prevents summary judgment. See Allen v. Town of Colonie, 182 A.D.2d 998, 1000, 583 N.Y.S.2d 24, 26 (3d Dep't 1992)...

To continue reading