Martin v. Giordano

• Decision Date: 09 May 2016
• Docket Number: 11-CV-4507 (ARR) (JO)
• Citation: 185 F.Supp.3d 339
• Parties: Isa Martin, Plaintiff, v. Antonia Giordano, Individually; Philip Vaccarino, Individually; Daniel Keating, Individually; Michael Alfieri, Individually; Bruce Ceparano, Individually; and City of New York; Defendants.
• Court: U.S. District Court — Eastern District of New York

185 F.Supp.3d 339

Isa Martin, Plaintiff,

v.Antonia Giordano, Individually; Philip Vaccarino, Individually; Daniel Keating, Individually; Michael Alfieri, Individually; Bruce Ceparano, Individually; and City of New York; Defendants.

11-CV-4507 (ARR) (JO)

United States District Court, E.D. New York.

Signed May 9, 2016

Brett H. Klein, Brett H. Klein, Esq. PLLC, John Joseph Nonnenmacher, Bader, Yakaitis & Nonnemacher, LLP, New York, NY, Jason Leventhal, Leventhal Law Group, P.C., Brooklyn, NY, Jeffrey G. Pittell, Maher & Pittell LLP, Bayside, NY, for Plaintiff.

Andrew J. Lucas, Melanie Mary Speight, Brian Christopher Francolla, New York City Law Department, Amanda Shoffel, Corporation Counsel for the City of New York, New York, NY, for Defendants.

OPINION & ORDER

ROSS, United States District Judge:

Pending before this court is a motion for sanctions and attorney's fees brought by defendants against plaintiff, Isa Martin, and his attorneys, Jason Leventhal, Esq. and John Nonnenmacher, Esq. See Mot. for Sanctions, Dkt. # 119.

It has been said that "determining whether a case or conduct falls beyond the pale is perhaps one of the most difficult and unenviable tasks for a court." Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 341 (2d Cir.1999). This court wholeheartedly agrees. In partially granting the instant motion, as set forth below, this court sanctions an attorney for the first time in thirty years on the bench. This court does so unhappily but without reservation; it simply cannot countenance the behavior exhibited by plaintiff's counsel in this action.

For the reasons set forth below, this court sanctions Mr. Nonnenmacher and Mr. Leventhal in the form of a public reprimand. This court also awards defendants reasonable expenses, including attorney's fees, incurred because of violations of court orders by Mr. Nonnenmacher and Mr. Leventhal as outlined below. The calculation of such expenses is respectfully referred to the Honorable Magistrate Judge James Orenstein.

Pursuant to Civil Rule 1.5(f) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, this court refers the concerns it raises regarding the conduct of Mr. Nonnenmacher and Mr. Leventhal to the Chief Judge for referral to the Committee on Grievances for that committee to consider the imposition of discipline or other relief.

BACKGROUND

A. The Underlying Lawsuit

Plaintiff brought the underlying lawsuit pursuant to 42 U.S.C. § 1983 and New York law based on events surrounding his arrest by officers of the New York City Police Department ("NYPD") on June 20, 2010. He filed his lawsuit on September 16, 2011, see Compl., Dkt. # 1, and subsequently amended his complaint on June 15, 2012, see Am. Compl., Dkt. # 11, and again on May 15, 2015, see Second Am. Compl., Dkt. # 45. The litigation proceeded before the Honorable Judge Sandra L. Townes until January 27, 2016, when plaintiff's case was reassigned to this court. See Order Reassigning Case dated Jan. 27, 2016.

In the second amended complaint, plaintiff alleged that he was beaten by NYPD police officers and struck with an NYPD vehicle, causing him to sustain serious physical injuries. Second Am. Compl., Dkt. # 45, ¶¶ 16-22. Plaintiff further alleged that NYPD police officers delayed his access to medical treatment for his injuries. Id.¶¶ 23-26. Based on these facts, plaintiff asserted claims under 42 U.S.C. § 1983 for excessive force, deliberate indifference to serious medical need, and failure to intervene. Id.¶¶ 34-57. He also asserted claims under New York law for assault, battery, and negligence. Id.¶¶ 58-97. Each state law claim was alleged against one or more individual defendants as well as the City of New York under the doctrine of respondeat superior. Id.¶¶ 95-97.

Defendants never moved for dismissal of plaintiff's action under Rule 12 of the Federal Rules of Civil Procedure. They did seek a pre-motion conference concerning an anticipated motion for summary judgment under Rule 56. See Defs.' Mot. for Pre-Mot. Conference, Dkt. # 26. Defendants sought summary judgment on some but not all of plaintiff's claims. Plaintiff agreed to voluntarily dismiss several of his claims but opposed summary judgment with respect to others. See Pl.'s Resp. to Defs.' Mot. for Pre-Mot. Conference, Dkt. # 32, at 2. The proceedings that followed, described in a separate order of this court, resulted in the second amended complaint outlined above. See Order dated Mar. 7, 2016, Dkt. # 73, at 2-3.

Judge Townes ordered the parties to appear at a pretrial conference on January 22, 2016, and scheduled trial to commence on March 21, 2016. See Civil Pretrial and Trial Scheduling Order, Dkt. # 39. The pretrial conference was later adjourned to February 22, 2016. See Am. Civil Pretrial and Trial Scheduling Order, Dkt. # 47.

B. The Pretrial Proceedings Before This Court

Before the February 22 pretrial conference took place, the matter was reassigned to this court. See Order Reassigning Case dated Jan. 27, 2016. This court contacted the attorneys of record via telephone on February 4 to schedule a telephonic status conference. The court was unable to reach Brett H. Klein, Esq., an attorney of record for plaintiff. When the court reached Jason Leventhal, another attorney of record for plaintiff, he advised the court that Mr. Klein was no longer involved in the prosecution of plaintiff's action.¹ Mr. Leventhal participated in the status conference on behalf of plaintiff. See Minute Entry dated Feb. 4, 2016. During the status conference, the court advised the parties that it intended to maintain the March 21 trial date set by Judge Townes. Mr. Leventhal advised the court that he hoped to take vacation with his family at that time. He asked the court to postpone the trial. The court explained that it was unable to postpone the trial for several reasons; however, the court agreed to move up the trial date so it would be less disruptive to Mr. Leventhal's vacation plans. The court set a deadline of February 22 for the parties to file all pretrial submissions in a manner consistent with this court's Individual Practices and Rules.² This deadline gave counsel two and a half weeks to prepare their pretrial submissions. Trial was scheduled to commence March 14. See Minute Entry dated Feb. 4, 2016.

1. Pretrial submissions and conferences

On February 19, the final business day before the pretrial submissions were due, the court received a letter from John Nonnenmacher. See Mot. for Extension of Time to File Pretrial Order, Dkt. # 51. His letter stated that plaintiff had retained him to serve as trial counsel in this matter. Id. Mr. Nonnenmacher represented that he had intended to file a notice of appearance, along with the joint pretrial order, on that date. Id. However, Mr. Nonnenmacher stated that he learned of the loss of "a close family member" and "was not able to get to [his] office as [he] was consoling [his] mother." Id. He requested an extension of "at least one week" to complete the pretrial submissions. Id. The court entered an order on the same date expressing condolences and granting a one-day extension to February 23. See Order dated Feb. 19, 2016. The court declined to grant a longer extension for several reasons, including its need to maintain the trial date, and its understanding that the pretrial submissions were—or at least should have been—substantially complete before Mr. Nonnenmacher learned of the death in his family. The court expressly warned, "no further extension will be granted and the trial date will not be postponed." Id.

On February 22, this court received a letter from counsel for defendants indicating that they had "been unable to communicate substantively with recently appointed trial counsel for plaintiff," referring to Mr. Nonnenmacher. See Letter from A. Shoffel dated Feb. 22, 2016, Dkt. # 52, at 1. Counsel for defendants explained that they had also contacted Mr. Leventhal, "who handled this matter during discovery, but Mr. Leventhal advised [that they] needed to speak with Mr. Nonnenmacher since he would be serving as trial counsel." Id. at 1 n.1. Counsel for defendants rightly noted that plaintiff's counsel's failure to furnish several components of the pretrial submissions, including witness and exhibit lists, prevented them from preparing the objections and responses required to prepare a joint pretrial order in advance of the February 23 deadline for all submissions. Id. at 1.

It was clear to the court that Mr. Nonnenmacher had no intention of complying with the February 23 deadline. The court also recognized that receipt of pretrial submissions after that deadline would not allow the court sufficient time, in light of its docket and calendar, to complete the work necessary to commence trial on March 14. Accordingly, this court entered an order adjourning the trial date to March 21 and setting a deadline of February 26 at noon for all pretrial submissions. See Order dated Feb. 23, 2016, Dkt. # 53, at 1-2. The court also expressed concerns regarding Mr. Nonnenmacher's conduct and raised the specter of sanctions for the first time:

Plaintiff and his counsel are responsible for the prosecution of this matter. That responsibility includes complying with the deadlines ordered by this court and complying with this court's Individual Practices and Rules. If Mr. Nonnenmacher seeks to serve as trial counsel in this matter, he may do so only if he is prepared to accept that responsibility. His retention does not excuse noncompliance with this court's orders and rules. Such conduct is sanctionable regardless of when retention occurs.

Id. at 2.

On the same date it entered that order, the court received another motion for extension of time from Mr. Nonnenmacher. See Mot. for Extension of Time to File Pretrial Submission, Dkt. # 54. He provided the court with unsolicited details regarding the death in his family and related arrangements. Id. He beseeched the court to...