Kim v. Kimm, No. 16-2944 (2d Cir. 2018)
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Plaintiff filed suit under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961, et seq., challenging the district court's judgment in favor of defendants. In this case, plaintiff alleged that defendants were members of two enterprises that conspired to sue plaintiff for, inter alia, trademark infringement. The Second Circuit held that the alleged litigation activities did not constitute RICO predicate acts. The court also held that the district court did not abuse its discretion in denying plaintiff leave to amend, plaintiff's motion to disqualify, and defendants' motions for sanctions. Accordingly, the court affirmed the judgment.
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16 2944 (L) Kim v. Kimm 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2017 1 (Submitted: October 23, 2017 4 Decided: February 27, 2018) Docket Nos. 16 2944, 16 3115 5 6 7 9 DANIEL KIM, Plaintiff Appellant Cross Appellee, 10 v. 11 MICHAEL S. KIMM D/B/A KIMM LAW FIRM, MICHAEL HYUN W. LEE, HYUNG SUK CHOI A/K/A STEPHEN CHOI, CHUL HO PARK A/K/A/ CHARLIE PARK, JIN YOUNG CHUNG A/K/A JAMIE CHUNG, CHARLIE AND YOU, INC. D/B/A SIK GAEK, SWAN U.S.A., INC. D/B/A SIK GAEK, Defendants Appellees Cross Appellants, MICHAEL HYUN W. LEE, Defendant Appellee, 8 12 13 14 15 16 17 18 19 HYUNG SUK CHOI, AKA STEPHEN CHOI, Defendant. 20 21 22 23 24 Before: JACOBS, SACK, AND PARKER, Circuit Judges. Plaintiff Appellant Daniel Kim appeals from a judgment entered in favor 25 of Defendants Appellees Michael S. Kimm, Michael Hyun W. Lee, Hyung Suk 26 Choi, Chul Ho Park, Charlie Park, Jin Young Chung, Charlie and You, Inc., and 16 2944, 16 3115 Kim v. Kimm, et al. 1 Swan U.S.A., Inc., by the United States District Court for the Eastern District of 2 New York (Allyne R. Ross, Judge). Kim alleges that the defendants were 3 members of two enterprises that conspired to sue him for, inter alia, trademark 4 infringement, and brings claims against them pursuant to the Racketeer 5 Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. In two 6 opinions, the district court granted the defendants motion to dismiss, denied the 7 plaintiff s motions to disqualify the defendants counsel and for leave to amend 8 his amended complaint, and denied the defendants motion for sanctions. We 9 agree with the district court s resolution of these motions. Accordingly, the 10 11 judgment of the district court is AFFIRMED. DANIEL KIM, Haworth, NJ, Plaintiff Appellant Cross Appellee, pro se. 12 13 MICHAEL S. KIMM, ADAM GARCIA, Kimm Law Firm, Englewood Cliffs, NJ, for Defendants Appellees Cross Appellants. 14 15 16 17 18 SACK, Circuit Judge: The plaintiff Daniel Kim brings this action pursuant to the Racketeer 19 Influenced and Corrupt Organizations Act ( RICO ), 18 U.S.C. § 1961, et seq., 20 alleging that the defendants engaged in a scheme to fraudulently bring suit 2 16 2944, 16 3115 Kim v. Kimm, et al. 1 against him for, inter alia, trademark infringement. The defendants moved to 2 dismiss the action for failure to state a claim under Federal Rule of Civil 3 Procedure 12(b)(6), arguing that their prior acts, as part of litigation they brought 4 against the plaintiff, do not constitute predicate acts for purposes of RICO. Kim 5 subsequently moved to disqualify defendant Michael S. Kimm as counsel for the 6 defendants and sought leave to further amend his amended complaint. 7 The United States District Court for the Eastern District of New York 8 (Allyne R. Ross, Judge) dismissed Kim s action for failure to state a claim, 9 agreeing with the defendants that Kim could not sustain a RICO action based on 10 the defendants prior litigation activities. The district court also denied Kim s 11 motion for leave to amend and to disqualify Kimm as counsel for the defendants. 12 The defendants then moved for sanctions pursuant to Federal Rules of Civil 13 Procedure Rule 11. The district court denied the motion. 14 Kim, now proceeding pro se, appeals the district court s judgment 15 dismissing his action and the district court s denial of his motions for leave to 16 amend and to disqualify Kimm. Kimm and his co defendants cross appeal, 17 challenging the district court s denial of sanctions against Kim. We agree with 18 the district court that the alleged litigation activities do not constitute RICO 3 16 2944, 16 3115 Kim v. Kimm, et al. 1 predicate acts. We also conclude that the district court did not abuse its 2 discretion in denying Kim leave to amend, Kim s motion to disqualify, and the 3 defendants motion for sanctions. The judgment of the district court is therefore 4 affirmed. BACKGROUND 5 6 I. The Sik Gaek I Lawsuit 7 The instant action arises from an earlier litigation, Sik Gaek, Inc. v. Yogi s II, 8 Inc., et al., No. 10 CV 4077 (ARR) (E.D.N.Y. 2010) ( Sik Gaek I ), which was filed in 9 the United States District Court for the Eastern District of New York on 10 September 7, 2010. In Sik Gaek I, Sik Gaek, Inc., the owner and operator of a 11 restaurant, sued Daniel Kim and the restaurant Kim owned, Yogi s II, Inc., over 12 the use of a trademark that Sik Gaek, Inc. allegedly owned. Sik Gaek, Inc. 13 alleged that Kim and Yogi s II, Inc. had failed to pay a $2 million fee pursuant to 14 a trademark license agreement and that, in a sinister scheme, Kim had 15 attempted to circumvent the license and register the trademark himself. 16 Appellant App x at 48–52. Sik Gaek, Inc. brought claims against Kim and Yogi s 17 II, Inc. for, inter alia, breach of contract, fraudulent trademark registration, and 18 trademark infringement. The district court granted summary judgment in favor 4 16 2944, 16 3115 Kim v. Kimm, et al. 1 of the defendant Kim on August 14, 2014. Sik Gaek, Inc. v. Yogi s II, Inc., 2014 WL 2 4063403, 2014 U.S. Dist. LEXIS 113165 (E.D.N.Y. Aug. 14, 2014). On August 21, 3 2014, the remaining claims against the defendant Yogi s II, Inc. were dismissed 4 by agreement of the parties. 5 II. District Court Proceedings 6 On August 15, 2015, Daniel Kim, a lawyer and a defendant in Sik Gaek I, 7 filed the instant action, bringing claims against parties in the Sik Gaek I lawsuit: 8 the owner of Sik Gaek, Inc., his wife and business partner, their two attorneys, 9 and an accountant. In his amended complaint, Kim alleges that the defendants 10 were members of two criminal enterprises that conspired to sue him for 11 trademark infringement and breach of contract in Sik Gaek I. According to Kim, 12 the Sik Gaek I lawsuit was nothing more than an ill conceived scheme or artifice 13 designed to extort $2 million from him. Appellant App x at 9. Kim alleges that 14 the defendants completed false paperwork to pose as the owners of a trademark, 15 licensed the trademark to a third party, and then sued Kim for violating the 16 licensing agreement. Kim claims that these false legal documents were intended 17 to mislead the district court and therefore were predicate acts of obstruction of 18 justice, mail fraud, and wire fraud that constituted a pattern of racketeering 5 16 2944, 16 3115 Kim v. Kimm, et al. 1 activity. Kim also brought a RICO conspiracy claim, alleging that the entire 2 scheme or artifice could never have been set in motion without the express 3 agreement, cooperation and coordination of each individual defendant and his 4 assigned role. Appellant App x at 40. 5 On September 11, 2015, the defendants filed a motion to dismiss for failure 6 to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 7 The defendants argued that Kim had failed adequately to allege a pattern of 8 racketeering activity, as required to state a RICO claim. The defendants raised 9 other arguments supporting their motion to dismiss, based on, inter alia, the 10 doctrines of collateral estoppel and res judicata. Kim subsequently moved to 11 disqualify Kimm as counsel in this litigation and to bar him from participating in 12 any defendant s defense other than his own. Kim also opposed the defendants 13 motion to dismiss and moved for leave to file a second amended complaint. 14 By unpublished opinion and order dated August 9, 2016, the district court 15 granted the defendants motion to dismiss. Appellant App x at 257–76. The 16 court decided that Kim had failed to state a RICO claim because he had not 17 alleged predicate acts constituting a pattern of racketeering activity. The court 18 found that most of the alleged predicate acts concerned litigation activity in Sik 6 16 2944, 16 3115 Kim v. Kimm, et al. 1 Gaek I—specifically, the preparing, signing, and filing of declarations by Chul Ho 2 Park, Michael Kimm, and Hyung Suk Choi, all of whom are defendants in the 3 instant action—and reasoned that [w]ell established precedent and sound 4 public policy preclude such litigation activities from forming the basis for 5 predicate acts under [RICO]. Dist. Ct. Op. at 8, Appellant App x at 264. The 6 district court noted that Kim s amended complaint also included pre litigation 7 activities alleged as predicate acts, but found these allegations deficient as a 8 matter of law. 9 In its August 9, 2016, opinion and order, the district court also denied 10 Kim s motion to disqualify Kimm as counsel, concluding that the motion was 11 rendered moot by the district court s dismissal of Kim s amended complaint. 12 Finally, the district court denied Kim leave to amend his complaint, reasoning 13 that amendment would be futile because the proposed amendments only added 14 additional litigation activities by the defendants which, as such, were insufficient 15 to form the basis for a RICO predicate act. 16 The defendants then moved for sanctions against Kim, arguing that his 17 lawsuit was meritless and seeking to recover fees expended in defending the Sik 18 Gaek I litigation. The district court denied the motion and in an unpublished 7 16 2944, 16 3115 Kim v. Kimm, et al. 1 opinion and order dated August 12, 2016, concluded that Kim s claims were 2 neither legally nor factually frivolous. The district court reasoned that although 3 it had joined the majority of courts in concluding that litigation activity could not 4 be predicate acts under RICO, at least some courts held differently and sanctions 5 were therefore inappropriate. Kim timely appealed to this Court from the district court s dismissal of his 6 7 action and denial of his motions for leave to amend his complaint and to 8 disqualify Kimm. The defendants timely cross appealed from the district court s 9 denial of their motion for sanctions. DISCUSSION 10 I. 11 Failure to State a RICO Claim 12 The first issue in this appeal is whether the district court erred in granting 13 the defendants motion to dismiss pursuant to Rule 12(b)(6). Kim challenges the 14 district court s holding that the defendants alleged litigation activities did not 15 constitute predicate acts for purposes of RICO.1 Kim does not raise any arguments regarding the district court s holding that the alleged pre litigation activities failed to state a RICO claim. We therefore conclude that Kim has waived any such argument. See Norton v. Sam s Club, 145 F.3d 114, 117 (2d Cir. 1998). 1 8 16 2944, 16 3115 Kim v. Kimm, et al. 1 We review de novo a district court s dismissal of a complaint pursuant to 2 Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations 3 in the complaint as true, and drawing all reasonable inferences in the plaintiff s 4 favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive 5 a motion to dismiss, a complaint must contain sufficient factual matter, accepted 6 as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 7 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) 8 (internal quotation marks omitted)). 9 A. RICO 10 Section 1964(c) of RICO, 18 U.S.C. §§ 1961–1968, provides a private right of 11 action to any person injured in its business or property by reason of a violation of 12 the activities prohibited by section 1962. To establish a RICO claim, a plaintiff 13 must show: (1) a violation of . . . 18 U.S.C. § 1692; (2) an injury to business or 14 property; and (3) that the injury was caused by the violation of Section 1962. 15 Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 120 (2d Cir. 2013) (quoting DeFalco v. 16 Bernas, 244 F.3d 286, 305 (2d Cir. 2001)). This appeal implicates the first of these 17 requirements, viz., whether the plaintiff has adequately alleged a violation of 18 section 1962. To establish such a violation, a plaintiff must show (1) conduct 9 16 2944, 16 3115 Kim v. Kimm, et al. 1 (2) of an enterprise (3) through a pattern (4) of racketeering activity. DeFalco v. 2 Bernas, 244 F.3d 286, 306 (2d Cir. 2001) (quoting Sedima, S.P.R.L. v. Imrex Co., 473 3 U.S. 479, 496 (1985)). 4 Here, the defendants argue—and the district court held—that Kim failed 5 adequately to allege a pattern of racketeering activity. Racketeering activity is 6 defined to include any act indictable under various specified federal statutes, 7 including the mail and wire fraud statutes and the obstruction of justice statute. 8 See 18 U.S.C. § 1961(1) (defining racketeering activity to include offenses 9 indictable under 18 U.S.C. §§ 1341 (relating to mail fraud), 1343 (relating to wire 10 fraud), and 1503 (relating to obstruction of justice)). A pattern of racketeering 11 activity is defined by the statute as at least two acts of racketeering activity 12 within a ten year period. 18 U.S.C. § 1691(5). 13 14 B. Litigation Activity as RICO Predicate Acts Here, Kim purports to allege various predicate acts of mail fraud, wire 15 fraud, and obstruction of justice allegedly committed by the defendants. Most of 16 the alleged predicate acts concern actions purportedly taken by the defendants 17 during the Sik Gaek I litigation. Specifically, Kim alleges that the defendants 18 committed obstruction of justice, mail fraud, and wire fraud by: 10 16 2944, 16 3115 Kim v. Kimm, et al. 1 2 3 4 5 6 7 8 9 Preparing, signing, and electronically filing a November 14, 2010, declaration sworn by defendant Chul Ho Park; Preparing, signing, and filing a December 21, 2010, declaration sworn to by defendant Park; Preparing, signing, and filing a February 13, 2012, declaration sworn by defendant Kimm; and Preparing, signing, and filing a March 14, 2014, declaration sworn by defendant Hyung Suk Choi. Kim alleges that each of the four declarations were prepared, signed, and 10 filed with full knowledge that they contained fraudulent representations 11 intended to persuade the district court to find in favor of Sik Gaek, Inc. The 12 district court concluded that these litigation activities could not provide a basis 13 for predicate acts under Section 1962(c). It therefore dismissed Kim s complaint 14 for failure to state a claim. We affirm for substantially the reasons set forth by 15 the district court. 16 17 Although we have not spoken directly on the issue, other courts have held that [i]n the absence of corruption, such litigation activity cannot act as a 11 16 2944, 16 3115 Kim v. Kimm, et al. 1 predicate offense for a civil RICO claim. Snow Ingredients, Inc. v. SnoWizard, Inc., 2 833 F.3d 512, 525 (5th Cir. 2016); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1087–88 3 (11th Cir. 2004) (deciding that the alleged conspiracy to extort money through 4 the filing of malicious lawsuits were not predicate acts of extortion or mail fraud 5 under RICO); Deck v. Engineered Laminates, 349 F.3d 1253, 1258 (10th Cir. 2003) 6 (deciding that meritless litigation is not a predicate act of extortion under RICO); 7 Gabovitch v. Shear, 70 F.3d 1252 (table), 1995 WL 697319, at *2, 1995 U.S. App. 8 LEXIS 32856, at *5 (1st Cir. 1995) (per curiam) (concluding that proffering false 9 affidavits and testimony to [a] state court does not constitute a predicate act of 10 extortion or mail fraud); see also Curtis & Assocs., P.C. v. Law Offices of David M. 11 Bushman, Esq., 758 F. Supp. 2d 153, 171–72 (E.D.N.Y. 2010) (collecting cases from 12 district courts in the Second Circuit deciding that the litigation activities alleged 13 in [the complaint before the court] cannot properly form the basis for RICO 14 predicate acts ). We agree with the reasoning of these opinions and conclude 15 that allegations of frivolous, fraudulent, or baseless litigation activities—without 16 more—cannot constitute a RICO predicate act. 17 18 As the district court explained, there are compelling policy arguments supporting this rule. First, [i]f litigation activity were adequate to state a claim 12 16 2944, 16 3115 Kim v. Kimm, et al. 1 under RICO, every unsuccessful lawsuit could spawn a retaliatory action, which 2 would inundate the federal courts with procedurally complex RICO pleadings. 3 Dist. Ct. Op. at 10–11, Appellant App x at 266–67; see also Nora F. Engstrom, 4 Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 MICH. L. REV. 639, 696 5 (2017) (permitting RICO suits based on prior litigation activities would 6 engender wasteful satellite litigation ). Furthermore, permitting such claims 7 would erode the principles undergirding the doctrines of res judicata and 8 collateral estoppel, as such claims frequently call into question the validity of 9 documents presented in the underlying litigation as well as the judicial decisions 10 that relied upon them. Dist. Ct. Op. at 11, Appellant App x at 267; see also 11 Gabovitch, 1995 WL 697319, at *3, 1995 U.S. App. LEXIS 32856, at *7 8 ( In essence, 12 simply by alleging that defendants litigation stance in the state court case was 13 fraudulent, plaintiff is insisting upon a right to relitigate that entire case in 14 federal court . . . . The RICO statute obviously was not meant to endorse any 15 such occurrence. ). Moreover, endorsing this interpretation of RICO would chill 16 litigants and lawyers and frustrate the well established public policy goal of 17 maintaining open access to the courts because any litigant s or attorney s 18 pleading and correspondence in an unsuccessful lawsuit could lead to drastic 13 16 2944, 16 3115 Kim v. Kimm, et al. 1 RICO liability. Dist. Ct. Op. at 11, Appellant App x at 267 (quoting Curtis & 2 Assocs., 758 F. Supp. 2d at 173); see also Engel v. CBS, Inc., 182 F.3d 124, 129 (2d 3 Cir. 1999) (noting the strong public policy of open access to the courts for all 4 parties and [the need] to avoid ad infinitum [litigation] with each party claiming 5 that the opponent s previous action was malicious and meritless (internal 6 quotation marks and citations omitted) (second brackets in original)). 7 Kim relies on Sykes v. Mel S. Harris & Associates LLC, 780 F.3d 70 (2d Cir. 8 2015) to argue that this Court has recognized RICO claims against attorneys . . . 9 for obtaining default judgments under false pretenses set forth in sham affidavits 10 of services. Appellant Br. at 16. Kim s reliance on this case is misplaced. As a 11 preliminary matter, it seems likely that Kim meant to cite a district court opinion 12 in that case, Sykes v. Mel Harris & Assocs., LLC, 757 F. Supp. 2d 413, 418 (S.D.N.Y. 13 2010), instead. There, the district court denied the defendants motion to dismiss 14 the plaintiffs section 1962(c) claims, observing that the plaintiffs pleaded a 15 pattern of racketeering activity that included at least twenty allegedly 16 fraudulent statements and eighteen acts involving use of the mail and wires over 17 three years, in furtherance of the alleged fraud. Id. at 425. Our 2015 opinion 18 cited by Kim addressed whether the district court abused its discretion by 14 16 2944, 16 3115 Kim v. Kimm, et al. 1 certifying class actions; we did not review the district court s denial of the 2 defendants motion to dismiss. See Sykes, 780 F.3d at 79–80. 3 The district court opinion, even were it binding on us—which, unlike this 4 Court s subsequent decision, of course, it is not—is also distinguishable from the 5 case at bar. The plaintiffs in Sykes alleged that the defendants engaged in a 6 massive scheme, in which a debt buying company, a law firm, a process 7 serving company, and others conspired with one another by buying consumer 8 debt, initiating actions against the debtors and improperly serving them, and 9 then filing fraudulent documents in state court to obtain default judgments. Id. 10 at 418–20. Accordingly, even though those defendants used litigation to carry 11 out their scheme, they also engaged in a variety of other out of court actions to 12 further this activity. In the case at bar, by contrast, the entire alleged scheme 13 involved the creation of fraudulent court documents. 14 We decline to reach the issue of whether all RICO actions based on 15 litigation activity are categorically meritless. We conclude only that where, as 16 here, a plaintiff alleges that a defendant engaged in a single frivolous, fraudulent, 17 or baseless lawsuit, such litigation activity alone cannot constitute a viable RICO 18 predicate act. We therefore agree with the district court s thorough and well 15 16 2944, 16 3115 Kim v. Kimm, et al. 1 reasoned analysis to that effect and affirm its dismissal of Kim s amended 2 complaint. 3 II. 4 Leave to Amend the Complaint Kim contends that the district court also erred by denying him leave to file 5 a second amended complaint. We review the district court s denial of leave to 6 amend for abuse of discretion. ATSI Commc ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 7 87, 108 (2d Cir. 2007). Although Rule 15(a) of the Federal Rules of Civil 8 Procedure provides that leave to amend shall be freely given when justice so 9 requires, it is within the sound discretion of the district court to grant or deny 10 leave to amend. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 11 2007) (citation omitted). Leave to amend may be denied for good reason, 12 including futility, bad faith, undue delay, or undue prejudice to the opposing 13 party. Id. Here, Kim s proposed second amended complaint only added more 14 litigation related predicate acts, such as allegations pertaining to deposition 15 testimony, declarations, and court filings that he contends were fraudulent. 16 These proposed amendments do not change the nature of the alleged predicate 17 acts—litigation activities—which for the reasons discussed above, are deficient as 18 a matter of law. Therefore, because the proposed amendments would have no 16 16 2944, 16 3115 Kim v. Kimm, et al. 1 impact on the basis for the district court s dismissal and would consequently be 2 futile, the district court did not abuse its discretion in denying Kim leave to 3 amend. See Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) ( [I]t is well established 4 that leave to amend a complaint need not be granted when amendment would be 5 futile. ). 6 7 III. Motion to Disqualify Kim next argues that the district court erred by denying Kim s motion to 8 disqualify Kimm as counsel for the defendants. We review the district court s 9 failure to disqualify counsel for abuse of discretion. See Bobal v. Rensselaer 10 Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990). Kim contends that the district 11 court should have disqualified Kimm under the advocate witness rule. “The 12 advocate witness rule applies, first and foremost, where the attorney 13 representing the client before a jury seeks to serve as a fact witness in that very 14 proceeding.” Ramey v. Dist. 141, Int’l Ass’n of Machinists & Aerospace Workers, 378 15 F.3d 269, 282 (2d Cir. 2004) (first emphasis added; second emphasis in the 16 original). Here, the district court decided that Kim s motion to disqualify was 17 moot because it had already dismissed Kim s amended complaint with prejudice. 18 This was not an abuse of discretion. After the district court dismissed Kim s 17 16 2944, 16 3115 Kim v. Kimm, et al. 1 amended complaint, there was no likelihood that Kimm would testify as a fact 2 witness before a jury. Therefore, the district court properly dismissed Kim s 3 disqualification motion as moot. IV. 4 Motion for Sanctions 5 The defendants argue that the district court erred in denying their motion 6 for sanctions against Kim, which they sought pursuant to Rule 11 of the Federal 7 Rules of Civil Procedure and 28 U.S.C. § 1927.2 Rule 11 requires the attorney or 8 unrepresented party filing litigation documents to certify that the documents: (1) [are] not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation [and] (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. 9 10 11 12 13 14 15 16 Fed. R. Civ. P. 11(b). 28 U.S.C. § 1927 provides that [a]ny attorney . . . who so 17 multiplies the proceedings in any case unreasonably and vexatiously may be 18 required by the court to satisfy personally the excess costs, expenses, and Although 28 U.S.C. § 1927 only reaches attorneys, the provision was potentially applicable because Kim was represented by counsel before the district court, only proceeding pro se in this appeal. Insofar as Kim himself had undertaken conduct violating § 1927, he also could have been sanctioned under that provision because he is in fact a lawyer, and we have held that § 1927 reaches litigants proceeding pro se who are lawyers. See Sassower v. Field, 973 F.2d 75, 80 (2d Cir. 1992). 2 18 16 2944, 16 3115 Kim v. Kimm, et al. 1 attorneys fees reasonably incurred because of such conduct. To impose 2 sanctions under this provision, a court must find clear evidence that (1) the 3 offending party s claims were entirely without color, and (2) the claims were 4 brought in bad faith—that is, motivated by improper purposes such as 5 harassment or delay. Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir. 2000) 6 (quoting Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir. 1999)). 7 We review the district court s denial of sanctions for abuse of discretion. Perez v. 8 Posse Comitatus, 373 F.3d 321, 325–26 (2d Cir. 2004). 9 The defendants argue that sanctions were appropriate because Kim s 10 claims were legally and factually frivolous. We conclude, however, that 11 although Kim s amended complaint ultimately failed to state a RICO claim, his 12 claims were not so obviously foreclosed by precedent as to make them legally 13 indefensible. At the time Kim filed this suit, there was no binding precedent in 14 this Circuit as to whether litigation activities could serve as predicate acts for 15 purposes of RICO. Indeed, some courts had endorsed the viability of some such 16 claims. See Sykes, 757 F. Supp. 2d at 425–26. Therefore, Kim s claims were not 17 foreclosed a priori by binding precedent even if they were unlikely to succeed 18 and Kim s position was not unsupported by case law even though the cases he 19 16 2944, 16 3115 Kim v. Kimm, et al. 1 cited were not binding on the court adjudicating his claims. Fishoff v. Coty Inc., 2 634 F.3d 647, 655 (2d Cir. 2011). 3 The defendants assert that sanctions are also appropriate because Kim s 4 claims are barred by the doctrines of collateral estoppel and res judicata, 5 rendering Kim s lawsuit frivolous. However, the defendants raise this issue only 6 in a cursory manner, without advancing any substantive arguments to support 7 their claim that Kim s lawsuit is precluded by earlier litigation. We therefore 8 conclude that the defendants have waived this argument. See Lederman v. New 9 York City Dep t of Parks & Recreation, 731 F.3d 199, 203 n.1 (2d Cir. 2013) 10 ( [A]ppellants must include in their briefs their contentions and the reasons for 11 them, with citations to the authorities and parts of the record on which the 12 appellant relies. Issues not sufficiently argued will be deemed waived and 13 ineligible for appellate review. (quoting Fed. R. App. P. 28(a)(9)(A))). 14 15 For these reasons, we conclude that the district court did not abuse its discretion in denying the defendants motion for sanctions. 20 16 2944, 16 3115 Kim v. Kimm, et al. CONCLUSION 1 2 We have considered the parties remaining arguments on appeal and find 3 them to be without merit. For the foregoing reasons, we AFFIRM the judgment 4 of the district court. 21
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