Kassenoff v. Kasenoff

Background

Catherine Kassenoff brought claims under the Electronic Communications Privacy Act, the Stored Communications Act, New York Penal Law § 250.05, and New York common law. She alleged unlawful interception, storage, access, and disclosure of electronic communications, trespass to chattels, and prima facie tort against Allan Kassenoff, Constantine G. Dimopoulos, and Dimopoulos Bruggemann PC.

The court dismissed the complaint in its entirety on March 27, 2023, ruling that claim preclusion—also called res judicata—barred the claims because a state court had adjudicated the same dispute, involving the same facts and parties, and had reached a judgment on the merits. Catherine Kassenoff died on May 27, 2023. Harold Burke represented her in this action.

Sanctions motion

Allan Kassenoff, who was an attorney and represented himself in the action, moved for sanctions under 28 U.S.C. § 1927 and the court’s inherent authority. Section 1927 can require an attorney to pay costs and fees caused by unreasonably and vexatiously multiplying court proceedings. A court’s inherent authority also permits sanctions for bad-faith, vexatious, wanton, or oppressive conduct, but that power must be used sparingly.

Kassenoff sought sanctions against Kassenoff’s estate under the court’s inherent authority and against Burke under § 1927 and the court’s inherent authority. He requested at least $210,787.50, based on 192.5 hours that he said he spent working on the case at a claimed hourly rate of $1,095. He argued that the federal case was frivolous from the beginning because the earlier state-court decision had already resolved the claims. He also cited other litigation, grievances, and subpoena-related conduct by Catherine Kassenoff, while acknowledging that Burke’s conduct was limited largely to this action and an appeal in a related state-court case.

Burke argued that he understood an earlier state-court decision existed but believed it was procedurally defective. He also stated that he believed he needed to file the federal complaint at that time to avoid expiration of the applicable statute of limitations while the state-court case was pending on appeal.

Court’s analysis

The court declined to sanction the estate. It identified no authority supporting sanctions against a deceased party or the party’s estate in these circumstances. The court also concluded that it would be inappropriate to find that Catherine Kassenoff acted in bad faith when she could not provide her side of the story. The record did not show that she had disclosed her motivation for suing Kassenoff or filing grievances to Burke or anyone else.

The court also denied sanctions against Burke. Although filing the action after the state-court ruling could support the conclusion that the claims were barred, sanctions under § 1927 or the court’s inherent authority required clear and convincing evidence of bad faith. The court found that Kassenoff had not met that standard. It accepted Burke’s representation that he genuinely, although mistakenly, believed Kassenoff had a colorable claim that was not precluded by the state-court decision while that decision was on appeal.

Disposition

The court denied Kassenoff’s motion for sanctions. It directed the Clerk of Court to terminate the pending motion. Because it denied the motion on these grounds, the court did not address Kassenoff’s additional argument that he could recover attorney’s fees despite having represented himself.