Engel v. Cbs, Inc.
| Decision Date | 23 June 1999 |
| Docket Number | Docket No. 97-7676 |
| Citation | 182 F.3d 124 |
| Parties | (2nd Cir. 1999) Donald S. Engel, Plaintiff Appellant, Engel & Engel, Plaintiff, v. Cbs, Inc., Moses & Singer, and Stanley Rothenberg, Defendants Appellees. August Term 1997 |
| Court | U.S. Court of Appeals — Second Circuit |
DONALD S. ENGEL, Engel & Engel New York, New York, for Plaintiff-Appellant,
THOMAS J. KAVALER, Cahill Gordon & Reindel, New York, New York, for Defendants-Appellees.
Before: WALKER and CABRANES, Circuit Judges.*
This is an appeal from the judgment of the United States District Court for the Southern District of New York (Miriam Goldman Cedarbaum, District Judge), concluding, inter alia, that plaintiff appellant had not adequately alleged that defendants appellees interfered with his person or property in a manner satisfying New York's requirement that a plaintiff in an action for malicious civil prosecution suffer special injury. See Engel v. CBS Inc., 961 F. Supp. 660, 662 65 (S.D.N.Y. 1997).
On appeal, we certified a single question to the New York Court of Appeals concerning New York's special injury requirement. The question certified was:
Whether an attorney, sued by his client's adversary for the purpose of interfering with the attorney's zealous representation of his client, and whose representation is actually undermined by the suit, may satisfy the required element of special injury in an action for malicious prosecution of a civil lawsuit under New York law where no provisional remedy is had against him.
Engel v. CBS, Inc., 145 F.3d 499, 505 (2d Cir. 1998).
The New York Court of Appeals has answered the certified question. See Engel v. CBS, Inc., 93 N.Y.2d 195, 689 N.Y.S.2d 411, 711 N.E.2d 626 (1999)(attached here as an Appendix). It held that, "[a]lthough New York cases do state that interference with person or property-the usual consequences of a provisional remedy-constitute special injury, New York law does not confine special injury to the imposition of a provisional remedy." Id. 689 N.Y.S.2d at 413-14. It went on to hold, however, that Id.
We receive the response to our certification "bearing in mind that the highest court of a state 'has the final word on the meaning of state law,'" County of Westchester v. Commissioner of Transp., 9 F.3d 242, 245 (2d Cir. 1993) (quoting Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 84 (2d Cir. 1991)), and are bound to apply New York law as determined by the New York Court of Appeals, see id. Nevertheless, plaintiff appellant urges us to disregard the New York Court of Appeals' decision because that court did not answer the certified question exactly as it was worded. Instead, plaintiff appellant contends that the Court of Appeals improperly ignored that portion of the certified question positing that the lawyer's representation was actually undermined and made an independent determination that the lawyer's representation was not undermined. Engel argues that the refusal of the New York Court of Appeals to accept the factual predicate contained in the certified question requires us to disregard its decision. We disagree.
In County of Westchester, we rejected the notion that the decision of the highest court of a state, addressed to the particular circumstances of the case rather than the more general question certified, is not binding. See 9 F.3d at 246 47. As we explained in County of Westchester, the state court that follows this course answers "a material subset of" the general question certified, id. at 247, and its decision controls our resolution of the case. The New York Court of Appeals, which relied on our summary of the case in the certification, was sufficiently familiar with the facts to conclude, as a matter of law, that New York's special injury requirement was not met in this case.
No other issues remain to be resolved. Accordingly, we conclude that plaintiff appellant has failed to establish the element of special injury required by New York law to maintain a claim for malicious civil prosecution. Summary judgment was properly granted.
The judgment of the district court is affirmed.
v.
CBS, INC., MOSES & SINGER, and STANLEY ROTHENBERG, Respondents.
Donald S. Engel, for appellant.
Thomas J. Kavaler, for respondents.
Committee on Professional Responsibility of the Association of the Bar of the City of New York, amicus curiae.
The United States Court of Appeals for the Second Circuit certified the following question to this Court for resolution.
"Whether an attorney, sued by his client's adversary for the purpose of interfering with the attorney's zealous representation of his client, and whose representation is actually undermined by the suit, may satisfy the required element of special injury in an action for malicious prosecution of a civil lawsuit under New York law where no provisional remedy is had against him."
Plaintiff, Donald Engel, an attorney who was sued by his client's adversary, CBS, Inc., argues that New York has never required special injury as an element of a malicious prosecution cause of action. Our review of New York case law indicates otherwise, and we decline to overrule those cases that have instilled proof of special injury as a necessary component of a malicious prosecution claim. Indeed, the certified question assumes the existence of the special injury requirement and focuses on what adverse consequences resulting from a civil suit could amount to a special injury. We thus perceive the certified question to be asking whether New York law limits this special injury to proof that a provisional remedy was imposed in a prior civil action. Although New York cases do state that interference with person or property-the usual consequences of a provisional remedy-constitute special injury, New York law does not confine special injury to the imposition of a provisional remedy.
Notwithstanding this clarification, under the specific facts given to this Court on the certified question, Engel has not shown the requisite added grievance. Engel's allegations, as characterized by the Second Circuit, do not allow the inference that his representation of Scholz was actually undermined. Although other cases certainly may present situations where a lawyer sued will have his or her ability to represent a client sufficiently undermined to allow an inference of special injury, the factual allegations of injury here, which we are bound to accept, are not enough to constitute such special injury. Construing the question in this way, we answer the certified question in the negative.
I.
The history of this case reaches back to October 1983, when CBS, Inc. sued the rock group Boston and its leader Donald Thomas Scholz for breach of contract in U.S. District Court for the Southern District of New York. Scholz hired Engel to represent and defend him and the group against CBS's claims. Boston and Scholz then counterclaimed for, among other things, breach of contract. During the pendency of this action, Engel successfully negotiated a contract with MCA Records on Scholz's behalf, which provided that MCA would handle Boston's next album. In August of 1994, CBS brought a second action again in U.S. District Court against MCA, Scholz, Engel and others alleging breach of contract and copyright infringement based on the MCA deal. It is this second action brought against Engel directly that forms the basis of his current malicious prosecution claim.
According to the deposition testimony of its then President, CBS instituted the action against Engel, at least in part, to dissuade Engel from representing Scholz in the manner that he had been representing him up to that point. Engel in describing the consequences, claims that the action created almost insurmountable conflicts of interest. Although Scholz agreed to continue to be represented by Engel after being informed of the conflicts, Engel alleges, as set forth in the facts provided by the certified question, that rendering effective service to Scholz became more onerous and responding to discovery requests more burdensome, and that he had to absorb these costs himself. He further alleges that at least one potential client among possible others were dissuaded from hiring him, and in a general way, that he suffered emotional and financial harm tied to possible damage to his reputation.
After CBS's injunction request was denied, the court granted Engel's motions for summary judgment, resulting in his being dismissed as a defendant from the case. The judge considered awarding Engel attorney's fees, stating that he was "outraged by the suggestion here contained in [CBS's] complaint that an attorney can be effectively immobilized from representing a client by naming him as defendant," but ultimately did not award such fees. Thereafter, the two actions brought by CBS were consolidated. Notwithstanding the purported conflicts of interest, the case proceeded to a lengthy trial, which resulted, according to Engel, in a "very, very favorable result." Scholz won recovery of approximately $6,500,000 from CBS.
After being dismissed as a defendant from the case, Engel and his law firm, Engel & Engel,...
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