Pinsky v. Duncan, No. 9

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtOAKES; MINER; OAKES
Citation79 F.3d 306
Docket NumberNo. 9,D
Decision Date22 March 1996
PartiesRoland PINSKY; Jennie Pinsky and Eileen Fedowitz, Plaintiffs, Brian K. Doehr, Plaintiff-Appellant, v. Robert K. DUNCAN and Joseph Golden Insurance Agency, Defendants, John F. Di Giovanni, Defendant-Appellee. ocket 94-7394.

Page 306

79 F.3d 306
Roland PINSKY; Jennie Pinsky and Eileen Fedowitz, Plaintiffs,
Brian K. Doehr, Plaintiff-Appellant,
v.
Robert K. DUNCAN and Joseph Golden Insurance Agency, Defendants,
John F. Di Giovanni, Defendant-Appellee.
No. 9, Docket 94-7394.
United States Court of Appeals,
Second Circuit.
Argued Sept. 21, 1995.
Decided March 22, 1996.

Joanne S. Faulkner, New Haven, CT, for Plaintiff-Appellant.

Jeremiah S. Gutman, New York City (Jayne F. Monahan, Levy, Gutman, Goldberg & Kaplan, New York City, of counsel), for Defendant-Appellee.

Before: OAKES, MINER and MAHONEY, Circuit Judges.

Judge OAKES concurs in a separate opinion.

MINER, Circuit Judge:

Plaintiff-appellant Brian K. Doehr appeals from a judgment entered in the United States District Court for the District of Connecticut (Eginton, J.), denying his motions for damages and attorney's fees in a civil rights action brought pursuant to 42 U.S.C. § 1983 against defendant-appellee John F. Di Giovanni. These orders followed a determination that Di Giovanni had violated Doehr's due process rights by attaching real property under the Connecticut prejudgment remedy statute, which permitted the attachment without notice or hearing. The district court declined to award damages in the absence of evidence that Di Giovanni knew or should have known the statute was unconstitutional or that he acted in reckless disregard of Doehr's constitutional rights. The district court denied attorney's fees for time expended on the damages issue because Doehr did not prevail on that issue. Moreover, the court found no basis for an award of fees under Fed.R.Civ.P. 11 or 28 U.S.C. § 1927.

BACKGROUND

In March of 1988, Doehr and Di Giovanni engaged in an altercation resulting in personal injuries to Di Giovanni. Shortly after the altercation, Di Giovanni commenced an action against Doehr in the Connecticut Superior Court to recover damages for assault and battery. Sometime later, Di Giovanni amended his complaint in that action to assert a claim in negligence. In 1992, a jury verdict in the sum of $5,600.00 was returned in favor of Di Giovanni on his negligence claim, the jury having apportioned forty percent responsibility against him. Because of the collateral source rule, Di Giovanni actually recovered the sum of $3,422.34 plus costs in his lawsuit.

At the inception of the action, and prior to the service of process on Doehr, Di Giovanni was granted the right to attach real property owned by Doehr in Meriden, Connecticut for the purpose of securing any judgment he might obtain. It appears that the real property in question was a residential dwelling owned by Doehr and his wife. The Connecticut court allowed the issuance of the attachment without notice, hearing or bond under the provisions of Conn.Gen.Stat. § 52-278e, which provided in part as follows:

The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and (1) that the prejudgment remedy requested is for an attachment of real property....

Page 309

The prejudgment remedy of attachment was authorized by the Connecticut court, in accordance with the foregoing statute, to the value of $75,000.00 based on the ex parte application of Di Giovanni, who stated in his affidavit in support of the application that he "was willfully, wantonly and maliciously assaulted by the defendant, Brian K. Doehr." Included in the affidavit was an allegation that the "assault and battery broke my left wrist and further caused an ecchymosis to my right eye, as well as other injuries to my head, limbs and body."

In August of 1988, before the conclusion of the action in the Connecticut Superior Court, Doehr and others commenced the action giving rise to this appeal, pursuant to 42 U.S.C. § 1983, in the United States District Court for the District of Connecticut. In the complaint, the plaintiffs alleged that

[e]ach plaintiff has had his or her real property attached, without prior notice and without a prior opportunity to be heard, pursuant to section 52-278e(1), which allows a prejudgment remedy to be issued without bond, and without any showing of extraordinary circumstances ... merely because the proposed defendant owns real property.

The Complaint included allegations of deprivation of property without due process by Di Giovanni and others, and the state action necessary to sustain a § 1983 claim was pleaded as follows: "In obtaining ex parte attachments of real property, defendants act jointly with state officials: a Judge of the Superior Court, without whose order no attachment could be obtained, and a sheriff, who serves the attachment papers." In their prayer for relief, plaintiffs sought "permanent injunctive relief ... enjoining defendants from attaching a consumer's real property unless they show ... special circumstances," and "a declaratory judgment that defendants have violated the due process and equal protection rights of the plaintiffs." Plaintiffs also sought actual damages, punitive damages and costs, including attorney's fees. The district court granted summary judgment in favor of Doehr and the other defendants, finding that the challenged statute was consistent with the due process requirements of the federal Constitution:

Viewed as a whole, Section 52-278e(a)(1) comports with due process. The statute provides for judicial supervision of the process in that it requires the prejudgment remedy to be issued by a judge.... A defendant whose property has been attached can require the plaintiff to show probable cause to sustain the prejudgment remedy in a prompt post-seizure hearing.... The temporary and minor prehearing impairment of a defendant's property, when coupled with the purpose served by such an attachment, suggests that the fact that the statute does not provide for the filing of a bond prior to the attachment is unobjectionable.

Pinsky v. Duncan, 716 F.Supp. 58, 60 (D.Conn.1989).

We reversed on appeal, stating in the principal opinion "that Conn.Gen.Stat. § 52-278e(a)(1) violates the requirements of due process because (1) it permits the issuance of ex parte attachments in the absence of extraordinary circumstances, and (2) it fails to require the plaintiff to post a bond or other security before obtaining the attachment." Pinsky v. Duncan, 898 F.2d 852, 858 (2d Cir.1990). The concurring opinion did not find the lack of a requirement for a bond or other security to be a constitutional flaw. Id. (Mahoney, J., concurring). The opinion to reverse included the following:

Despite the highly error-prone nature of Connecticut's pre-attachment procedure, Di Giovanni and the state insist that the private interest at stake is so minuscule that a prior hearing is not constitutionally required. We are unpersuaded by this argument. An attachment can have a substantial impact on a landowner's ability to sell his property, secure a loan, or obtain credit. Given a particularly unlucky set of circumstances, even a temporary attachment can lead to foreclosure proceedings against the homeowner. In any event, the individual's interest in a prior hearing certainly outweighs the state's interest in postponing the hearing until after attachment,

Page 310

which, in the absence of unusual circumstances, is practically nil.

Id. at 856 (citation omitted).

The Supreme Court granted certiorari, affirmed and remanded to us for further proceedings consistent with its opinion. Connecticut v. Doehr, 501 U.S. 1, 24, 111 S.Ct. 2105, 2119, 115 L.Ed.2d 1 (1991). The Court held that the Due Process Clause of the Fourteenth Amendment was not satisfied by a state statute that permitted prejudgment attachment of real property without prior notice or hearing. Id. Four members of the Court concluded that due process also required that a bond be posted, although a bond would not eliminate the need for a pre-attachment hearing or a showing of exigent circumstances. Id. at 23, 111 S.Ct. at 2118-19. The opinion for the majority stated:

The plaintiff had no existing interest in Doehr's real estate when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action. Yet there was no allegation that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the action that would render his real estate unavailable to satisfy a judgment. Our cases have recognized such a properly supported claim would be an exigent circumstance permitting postponing any notice or hearing until after the attachment is effected. Absent such allegations, however, the plaintiff's interest in attaching the property does not justify the burdening of Doehr's ownership rights without a hearing to determine the likelihood of recovery.

Id. at 16, 111 S.Ct. at 2115 (citations omitted). The Court remanded the case to us for further proceedings consistent with its opinion. Id. at 24, 111 S.Ct. at 2119. By order entered on August 2, 1991, we remanded to the district court for further proceedings consistent with the Supreme Court opinion.

On December 4, 1992, the district court vacated its original judgment, granted summary judgment in favor of plaintiff on the constitutional deprivation issue, and directed the filing of a motion for damages. Doehr subsequently filed the motion as well as a supplemental motion for additional damages. Di Giovanni submitted papers in opposition and also cross-moved to dismiss Doehr's complaint insofar as it sought damages and attorney's fees. On August 27, 1993, the parties entered into a stipulation submitting the damages issue for the court's determination on the basis of an affidavit that Doehr had submitted in connection with his...

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77 practice notes
  • Zalaski v. City of Hartford, Civil Action No. 3:08cv601 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 18, 2012
    ...an evil or unlawful purpose ... and includes the pursuit of the lawful end by the intentionally unlawful means.” Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir.1996). A Plaintiff must show that the defendant “acted primarily for a purpose other than that of bringing an offender to justice.” McH......
  • Babb v. Cal. Teachers Ass'n, CASE NO. 8:18-cv-00994-JLS-DFM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 8, 2019
    ...defense is available to private parties sued for constitutional violations." Carey , 364 F.Supp.3d at 1228 (citing Pinsky v. Duncan , 79 F.3d 306, 311–12 (2d Cir. 1996) ; Vector Research, Inc. v. Howard & Howard Attorneys, P.C. , 76 F.3d 692, 698–99 (6th Cir. 1996) ; Jordan v. Fox, Rothschi......
  • Janus v. Am. Fed'n of State, No. 19-1553
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 5, 2019
    ...defense to liability under section 1983. See Clement v. City of Glendale , 518 F.3d 1090, 1096–97 (9th Cir. 2008) ; Pinsky v. Duncan , 79 F.3d 306, 311–12 (2d Cir. 1996) ; Vector Research, Inc. v. Howard & Howard Attorneys P.C. , 76 F.3d 692, 698–99 (6th Cir. 1996) ; Jordan v. Fox, Rothschi......
  • Seidemann v. Prof'l Staff Cong. Local 2334, 18 Civ. 9778 (KPF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 3, 2020
    ..., 994 F.2d 1113, 1118 (5th Cir. 1993). More importantly, the Second Circuit has recognized the good-faith defense, see Pinsky v. Duncan , 79 F.3d 306, 311-13 (2d Cir. 1996), and has reaffirmed the existence of that defense (albeit in a summary order) in circumstances remarkably analogous to......
  • Request a trial to view additional results
76 cases
  • Zalaski v. City of Hartford, Civil Action No. 3:08cv601 (VLB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 18, 2012
    ...an evil or unlawful purpose ... and includes the pursuit of the lawful end by the intentionally unlawful means.” Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir.1996). A Plaintiff must show that the defendant “acted primarily for a purpose other than that of bringing an offender to justice.” McH......
  • Babb v. Cal. Teachers Ass'n, CASE NO. 8:18-cv-00994-JLS-DFM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • May 8, 2019
    ...defense is available to private parties sued for constitutional violations." Carey , 364 F.Supp.3d at 1228 (citing Pinsky v. Duncan , 79 F.3d 306, 311–12 (2d Cir. 1996) ; Vector Research, Inc. v. Howard & Howard Attorneys, P.C. , 76 F.3d 692, 698–99 (6th Cir. 1996) ; Jordan v. Fox, Rothschi......
  • Janus v. Am. Fed'n of State, No. 19-1553
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 5, 2019
    ...defense to liability under section 1983. See Clement v. City of Glendale , 518 F.3d 1090, 1096–97 (9th Cir. 2008) ; Pinsky v. Duncan , 79 F.3d 306, 311–12 (2d Cir. 1996) ; Vector Research, Inc. v. Howard & Howard Attorneys P.C. , 76 F.3d 692, 698–99 (6th Cir. 1996) ; Jordan v. Fox, Rothschi......
  • Seidemann v. Prof'l Staff Cong. Local 2334, 18 Civ. 9778 (KPF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 3, 2020
    ..., 994 F.2d 1113, 1118 (5th Cir. 1993). More importantly, the Second Circuit has recognized the good-faith defense, see Pinsky v. Duncan , 79 F.3d 306, 311-13 (2d Cir. 1996), and has reaffirmed the existence of that defense (albeit in a summary order) in circumstances remarkably analogous to......
  • Request a trial to view additional results

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