189 F.3d 460 (2nd Cir. 1999), 96-6228, Binghamton Masonic Temple, Inc. v. Bares

Docket Nº:96-6228.
Citation:189 F.3d 460
Party Name:BINGHAMTON MASONIC TEMPLE, INC., William T. Whitman, Plaintiffs, Mel M. MARIN, Appellant, v. Emmerich BARES, Jacob Weber, Lloyd Harrison, S. Paul Jones, G. Bernard Freer, Thomas Barbour, Secretary of Housing And Urban Development, United States Postal Service, Dale Perry Defendants-Appellees.
Case Date:July 30, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 460

189 F.3d 460 (2nd Cir. 1999)

BINGHAMTON MASONIC TEMPLE, INC., William T. Whitman, Plaintiffs,

Mel M. MARIN, Appellant,

v.

Emmerich BARES, Jacob Weber, Lloyd Harrison, S. Paul Jones, G. Bernard Freer, Thomas Barbour, Secretary of Housing And Urban Development, United States Postal Service, Dale Perry Defendants-Appellees.

No. 96-6228.

United States Court of Appeals, Second Circuit

July 30, 1999

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA2 s 0.23 regarding use of unpublished opinions)

RICO Bus.Disp.Guide 9795

Appeal from the United States District Court for the Northern District of New York ,McAvoy, Chief Judge.

Mel M. Marin, Esq., pro se, Boardman, Ohio, appearing for appellant.

Terrence R. Dugan, Esq., Endicott, New York, appearing for appellees.

Present, WALKER, Jr., CABRANES and SACK, Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Plaintiff's attorney Mel M. Marin appeals from the May 5, 1997 judgment of the district court, dismissing the complaint in his securities fraud and civil Racketeer and Influenced Corrupt Organizations Act ("RICO") action, for failure to state a claim upon which relief may be granted, and imposing Fed.R.Civ.P. 11 sanctions on plaintiff and plaintiff's counsel. Only the sanctions imposed on Marin are before us.

On appeal, Marin claims that the sanctions were improper because (1) the original complaint had been superseded by the RICO statement; (2) Marin had not been afforded the safe harbor of Rule 11; (3) his client was to blame for false information; (4) the complaint was proper; and (5) the district court abused its discretion in awarding attorney's fees not collected. These claims are without merit.

"We review all aspects of a district court's Rule 11 determination for abuse of discretion. A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Nuwesra v. Merrill Lynch, Fenner & Smith, Inc., 174 F.3d 87, 91-92 (2d Cir.1999) (internal quotation marks and citations omitted).

Marin was sanctioned under Fed.R.Civ.P. 11(c) for submitting a pleading where a reasonable...

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