Appel v. Hayut
- John Cronan
- 1:20-cv-06265
- U.S. District Court · Southern District of New York
- 15
In Appel v. Hayut, Judge Cronan found the complaint frivolous but denied Kazhdan’s request for sanctions and fees.
David Kazhdan’s request for $24,963 in attorney’s fees and costs was denied. Ronit D. Appel was found to have violated Rule 11(b), but the court imposed no sanctions.
What happened
In Appel v. Hayut, Ronit D. Appel, an attorney representing herself, sued David Kazhdan and others under the Torture Victim Protection Act. The court had already dismissed the case. Kazhdan then asked for $24,963 in attorney’s fees and costs, arguing that Appel’s complaint and litigation conduct were frivolous.
The court found that Appel violated Rule 11 because her complaint was objectively unreasonable and lacked factual and legal support. It also found that Kazhdan properly gave her the required 21-day opportunity to withdraw the complaint. But Kazhdan did not follow that procedure for several later filings, so Rule 11 sanctions based on those filings were procedurally barred.
Judge Cronan denied Kazhdan’s motion for sanctions. He declined to impose Rule 11 sanctions because a monetary penalty was unlikely to deter Appel and the case had already ended. He also denied sanctions under the federal law addressing attorneys who unreasonably multiply proceedings and under the court’s inherent authority because Kazhdan had not clearly and specifically shown that Appel acted in bad faith.
The detailed version
- Appel v. Hayut · No. 1:20-cv-06265
- John Cronan
- Jan. 25, 2022
Background
Ronit D. Appel, an attorney proceeding without a lawyer, filed a complaint alleging that David Kazhdan and other defendants were involved in attempted extrajudicial killing and torture in violation of the Torture Victim Protection Act. Her allegations arose from what she described as a fraudulent Israeli judicial proceeding concerning her apartment in Israel. The court had previously dismissed the complaint against Kazhdan for failure to state a claim and later dismissed the action against the remaining defendant, closing the case.
After appearing in the case, Kazhdan served Appel with a Rule 11 sanctions motion and gave her 21 days to withdraw the complaint. Appel did not withdraw it. Kazhdan later moved for sanctions under Federal Rule of Civil Procedure 11, 28 U.S.C. § 1927, and the court’s inherent authority, seeking $24,963 for attorney’s fees and costs.
Rule 11 sanctions
Rule 11 requires an attorney to certify that a filing is not being used for an improper purpose, that its legal arguments are supported by existing law or a nonfrivolous argument for changing the law, and that its factual allegations have evidentiary support or are likely to obtain such support after reasonable investigation. Before filing a Rule 11 sanctions motion, the moving party must serve the motion and give the opposing party 21 days to withdraw or correct the challenged filing.
The court held that Kazhdan satisfied this safe-harbor requirement for Appel’s complaint. The court rejected Appel’s argument that the version served on her differed meaningfully from the version filed with the court and found that Kazhdan served the motion promptly enough. The court also found that the motion was timely even though Kazhdan filed it after the case was dismissed, because Appel had more than five months to withdraw the complaint before its dismissal.
The court found that Appel’s filing of the complaint violated Rule 11(b). The allegations against Kazhdan lacked sufficient factual support for a claim that Appel had been tortured or that Kazhdan was legally responsible for torture under the Torture Victim Protection Act. The allegations were conclusory and objectively unreasonable.
However, the court denied Rule 11 sanctions based on Appel’s opposition to Daniel Kazhdan’s request to appear as counsel, her opposition to requests for a conference concerning other motions, and her request that the court begin criminal contempt proceedings. Kazhdan’s safe-harbor notice did not identify those filings, and he did not supplement or amend the notice. The court therefore held that any Rule 11 sanctions request based on those filings was procedurally barred.
Although the court found a Rule 11 violation concerning the complaint, it emphasized that sanctions are discretionary rather than mandatory. It declined to award the requested fees and costs because a monetary sanction was unlikely to deter Appel, who had previously received a Rule 11 sanction in another case and had brought another action during this litigation that was dismissed as frivolous. The court also noted that the case had already been dismissed, Kazhdan’s involvement had been relatively brief, and he had conducted no discovery.
Section 1927 and inherent authority
Section 1927 allows sanctions against an attorney who unreasonably and vexatiously multiplies court proceedings. A court’s inherent authority also permits sanctions for conduct undertaken in bad faith, vexatiously, wantonly, or for oppressive reasons. Under either authority, the court required clear evidence that the challenged claim lacked any reasonable legal or factual basis and that it was brought for an improper purpose, such as harassment or delay.
The court declined to impose sanctions under either § 1927 or its inherent authority. It stated that Appel’s allegations and her request for criminal proceedings may have been unfounded, but Kazhdan had not made the required clear and specific showing that Appel acted in bad faith. The court rejected the argument that the frivolousness of Appel’s claims, by itself, established an improper purpose.
Disposition
The court denied Kazhdan’s motion for sanctions under Rule 11, 28 U.S.C. § 1927, and the court’s inherent authority. It directed the Clerk of Court to close the pending motion.
Read the full 15-page opinion on CourtListener, the free public archive maintained by the Free Law Project.