Ackerman v. Pilipiak, No. 2:2010cv04851 - Document 29 (E.D.N.Y. 2011)
Court Description: MEMORANDUM AND ORDER denying 11 Motion for Sanctions. For the foregoing reasons, the Bankruptcy Court's August 24, 2010 Order is AFFIRMED in its entirety. The Trustee's appeal and Defendant's cross-appeals are dismissed, and Defend ant shall recover the costs of the appeal from the Trustee. See FED. R. BANKR. PROC. 8014. Defendant's Rule 11 motion (Docket Entry 11) is DENIED. So Ordered by Judge Joanna Seybert on 8/25/11. E.D. Bankr. Adv. Proc. No. 06-08416. C/ECF (Valle, Christine)
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Ackerman v. Pilipiak Doc. 29 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------X NEIL H. ACKERMAN, Chapter 7 Trustee of Marine Risks, Inc., E.D. Bankr. Adv. Proc. No. 06-08416 Appellant, -againstWALTER PILIPIAK, MEMORANDUM & ORDER 10-CV-4851 (JS) Appellee. ---------------------------------X APPEARANCES: For Appellant: Kevin R. Toole, Esq. Meltzer Lippe Goldstein& Breitstone LLP 190 Willis Avenue Mineola, NY 11501 For Appellee: John R. Keough, III, Esq. Casey D. Burlage, Esq. Waesche, Sheinbaum & O'Regan, P.C. 111 Broadway, 4th Fl. New York, NY 10006 Tracy L. Klestadt, Esq. Klestadt & Winters, LLP 570 Seventh Avenue, 17th Fl. New York, NY 10018 SEYBERT, District Judge: In this bankruptcy appeal, Neil H. Ackerman (“Appellant” or the “Trustee”), the Chapter 7 Trustee of Debtor Marine Risks, Incorporated (“Debtor” or “MRI”), challenges the Bankruptcy Court’s decision (1) denying in part the Trustee’s request to amend his Adversary Complaint against Defendant Walter Pilipiak (“Appellee” or “Defendant”) and (2) dismissing the Complaint pursuant to Federal Rule of Civil Procedure 52 and Federal Rule of Bankruptcy Procedure 7052 (the “Bankruptcy Dockets.Justia.com Order”). Defendant cross-appeals, arguing that the Bankruptcy Court erred by amending portions of the Trustee’s Complaint to conform with the evidence at trial and by not including an award of costs and fees in the Bankruptcy Order. Also pending is Defendant’s Trustee Rule 11 motion to sanction the for his Order is alleged bad faith in prosecuting this appeal. For AFFIRMED the following in its entirety Defendant’s cross-appeal reasons, and are the the Bankruptcy Trustee’s dismissed. appeal Defendant’s and Rule 11 motion is DENIED. BACKGROUND MRI was a New York insurance brokerage, specializing in marine and automobile insurance. Bruce Keyes was its majority shareholder and, at all relevant times, a director of the company and its president. Defendant, also a shareholder, was an officer and director of MRI. In increased Defendant to 1997, after include learned his responsibilities oversight that MRI belonging to MRI’s clients. of was MRI’s at general retaining MRI were operations, premium (See Bankr. Order at 7.) checks When Defendant confronted Keyes about his discovery, Keyes directed that false memo bills be drawn up to hide the discrepancies. Id. Defendant thereafter conducted an internal investigation of MRI’s billing processes, eventually concluding that MRI had been 2 improperly retaining funds that belonged to its clients. Id. at 8. In late 1997--not long after Defendant confronted Keyes about the questionable billing practices--MRI underwent a restructuring and reduced his over Defendant’s role objection. Id. in at MRI’s operations 8-9. In early was 1998, Defendant was interviewed by the New York State Department of Insurance about his internal investigation into MRI’s billing irregularities. Id. That spring, he discussed his findings with prosecutors from the Manhattan District Attorney’s office. Id. Keyes was indicted on fraud and larceny charges in November 1998, and he was arrested on November 12, 1998. In a post-indictment letter to Id. at 10. MRI’s shareholders, Keyes characterized the indictment as a grave threat to MRI’s business: “At this writing, we have over 50% of our clients’ renewals coming up within the next thirty days and can safely say that most, if not all, of these renewals are in serious jeopardy due solely to the criminal indictment brought by the District Attorney’s office.” Almost clients and questions. called immediately other parties Id. at 16 (quoting Def. Ex. W-2). after began Keyes was contacting arrested, the company MRI’s with An officer of Cosmos, a rival insurance broker, Defendant and asked whether Keyes was interested selling MRI in light of his impending prosecution. 3 in Id. at 10. Defendant Keyes. responded that Cosmos has to speak directly with Id. On December 2, 1998, Keyes, who had declined his employees’ pleas to step down while his prosecution was pending, told MRI’s management that he planned on selling MRI’s assets to Id. at 11. a competitor, Nausch, Hogan and Murray (“NHM”). Keyes said that he had agreed to the following terms of a letter of intent (“Letter of Intent”) between the parties: beginning January 1, 1999, NHM would acquire all of MRI’s ongoing business interests and would receive any clients that wanted to transfer from MRI to NHM. In return, NHM would pay MRI’s shareholders 20% of the commissions generated by MRI’s former clients for the following five years. MRI exchange for its assets.1 The NHM-MRI itself would receive nothing in Id. 11-12. deal was contingent satisfied with its due diligence on MRI. on NHM’s Id. at 12. being Keyes signed the Letter of Intent on behalf of MRI and added “subject to shareholder approval.” Id. The deal provided that NHM would hire “all key employees and branch office personnel currently employed by” MRI; Keyes explained at the meeting that Bill Murray, one of NHM’s founding members, would determine which MRI employees would be kept by NHM. Id. at 13. 1 According to Kevin Mullady, MRI’s former vice president, had the NHM-MRI deal been finalized, MRI would have been dissolved shortly thereafter. Bankr. Order at 18. 4 At the December 2, 1998 meeting, Defendant told Keyes that Cosmos was interested in doing a transaction with MRI, but Keyes told Defendant that MRI would not deal with Cosmos because Id. at 13- MRI’s largest client, Nippon Express, would object. 14. The next opportunity. day, Defendant contacted Cosmos about a job A few days later, he offered to join Cosmos as president and as a director. As part of the employment package, Defendant offered to bring six key employees and a book of MRI’s business with him to Cosmos. Id. at 15. Between December 3 and December 21, 1998, Defendant continued to meet with MRI’s clients to negotiate renewals of their insurance contracts, which were scheduled to expire at year’s end. Id. at 14. According to an email between employees of ACL, an MRI client, Defendant provided ACL with a renewal contract but told ACL that he would decide shortly whether to leave MRI. The email explained that the reason for Defendant’s impending decision “is that Bruce Keyes has announced the sale of [MRI] to [NHM] selling Walter down the river. in Walter’s control as the Broker of Record. appointment Wednesday: here 12/9.” with Id. a broker at 14 from (quoting Policies are I have scheduled Marsh-Sedgwick, Trustee’s Ex. on 87). Although he had contact with MRI’s clients during this time, Defendant testified that he did not advise clients that he was seeking employment with Cosmos. Id. at 17. 5 Defendant resigned from MRI on December 21, 1998 and began working for Cosmos on the same day. Several MRI Id. employees and twelve MRI clients followed Defendant to Cosmos. Although client, Nippon did Express, not renew MRI’s its largest business and with most MRI important following the See id. at indictment, it did not take its business to Cosmos. 15, 17-18. On the same day that Defendant left MRI, NHM decided not to follow through with the proposal to buy MRI’s assets. Id. at 18. those for MRI’s revenues for 1999 were sharply lower than 1998. Keyes was convicted of fraud, and MRI officially went out of business in 2001 after its and Keyes’ insurance licenses convictions Keyes’). and were MRI’s revoked because its (Keyes’ license because was of predicated his on Id. at 18-19. PROCEDURAL HISTORY This case began when MRI filed a third-party complaint against Defendant in New York Supreme Court. The case was eventually removed to the Southern District of New York and later closed for lack of prosecution. In September 2005, MRI filed for Chapter 7 relief and the Trustee was appointed trustee in MRI’s bankruptcy case. This action was then re-opened and transferred to the Bankruptcy Court. Id. at 3-4. By the time the case was tried, the Complaint had three remaining claims: 6 that Defendant (1) breached his fiduciary duty to MRI by soliciting MRI’s clients for his own benefit while employed by MRI; (2) breached his fiduciary duty to MRI by appropriating for his own benefit a business opportunity belonging to MRI while employed by MRI; and (3) tortiously interfered with a proposed transaction between the Debtor and a third party.2 Id. at 1. The Bankruptcy Court tried these claims without a jury over twelve days in 2009 and 2010. Id. at 5. At the close of the Trustee’s case, Defendant moved for a directed verdict pursuant to Federal Rule of Bankruptcy Procedure 52. At that point, the Trustee asked the Bankruptcy Court to amend his Complaint to reflect the trial evidence. Trustee was apparently not specific in his request The for an amended pleading, see id. at 20 n.4, so the Bankruptcy Court construed his proposed amendments as follows: as to his first claim, (1) in addition to soliciting clients of MRI, that Defendant solicited key MRI employees for his own benefit and (2) that Defendant solicited clients and key MRI employees for the benefit of another (i.e., Cosmos); as to his second claim, that Defendant breached his fiduciary duty by usurping MRI’s right to enter into a deal with Cosmos. Id. at 20. Also, as to both counts, the Bankruptcy Court considered whether to amend 2 A fourth claim was dismissed by the Southern District in 2003. See Bankr. Order at 4 n.1. 7 the claims to include Defendant’s post-resignation conduct. Id. at 20. The Bankruptcy Court granted in part the Trustee’s request to amend the Complaint and granted Defendant’s motion to dismiss the Complaint, as amended, pursuant to Bankruptcy Rule 7052. Id. at 46. The motion to amend the Complaint was granted in all respects except to the extent that it sought to include Defendant’s post-resignation conduct in the allegations. This appeal followed, and Defendant then moved for sanctions under Federal Rule of Civil Procedure 11. DISCUSSION The Court first addresses the appeal and cross-appeal and then considers Defendant’s Rule 11 motion. I. The Bankruptcy Order Is Affirmed On appeal, the Trustee argues that the Bankruptcy Court incorrectly (1) denied his motion to amend his Complaint to add allegations conduct; and (2) appeals, arguing concerning dismissed that the the Defendant’s Complaint. Bankruptcy Court post-resignation Defendant should cross- not have permitted any amendments to the Trustee’s Complaint and that the Bankruptcy Court erred by not awarding him costs and fees. (Def. Resp. at 33.) Federal district courts have jurisdiction to hear appeals from final judgments, orders, and decrees of bankruptcy 8 judges. FED. “[f]indings evidence, of shall R. BANKR. fact, not P. 8013. whether be set The based aside on Bankruptcy oral unless Court’s or documentary clearly erroneous.” Id.; see also In re Momentum Mfg. Co., 25 F.3d 1132, 1136 (2d Cir. B.A.P. 1994); In re PCH Assocs., 949 F.2d 585, 597 (2d Cir. B.A.P. 1991). The Bankruptcy however, are reviewed de novo. F.3d at 1136. Court’s legal conclusions, See In re Momentum Mfg. Co., 25 As the following discussion makes clear, the Bankruptcy Order must be affirmed in all respects. A. Amending the Complaint to Add Post-Resignation Conduct As an initial matter, the Bankruptcy Court did not abuse its discretion in denying the Trustee’s motion to amend his complaint to include Defendant’s alleged post-resignation conduct. Under Federal Rule of Civil Procedure 15(b)(2), a court must amend a pleading to include claims that were tried by the parties’ express or implied consent. Here, the Bankruptcy Court did not FED. R. BANKR. P. 7015. abuse its discretion in finding that Defendant neither expressly nor impliedly consented to trying the issue of Defendant’s post-resignation conduct. As the Bankruptcy Court noted, Defendant emphasized in the parties’ Joint Pretrial Memorandum that the Trustee’s case should be confined to Defendant’s pre-resignation conduct, and Defendant objected at trial resignation conduct. to evidence concerning the alleged (See Bankr.) Order at 22-23. 9 post- The Trustee did not object Memorandum these findings, (See, erroneous. to e.g., Docket at 3 (Defendant’s and Entry they are 1-128, italicizing not Joint of clearly Pretrial “before he resigned”).) Instead, the Trustee argues that the Bankruptcy Court erred by not addressing whether Defendant would be prejudiced by the amendment. (Trustee Br. at 17.) If a motion to amend a pleading “is made during trial . . . it may be granted if the party against whom the amendment is offered will not be prejudiced by the amendment, and it should be granted in the absence of prejudice if the interests of justice so require.” Hillburn v. Maher, 795 F.2d 252, 264 (2d Cir. 1986). The Bankruptcy Court did not expressly find that Defendant would be prejudiced by the proposed amendment, but it did not abuse its discretion in denying the Trustee’s request. this conclusion for two reasons. The Court reaches First, the Trustee did not specify how he thought his Complaint should be amended--leaving it to the Bankruptcy Court “to determine the contours of” his proposed amendments, Bankr. Order at 20--and the Court is loath to say the Bankruptcy Court abused its discretion in denying a request that the Trustee never made. Second, the Bankruptcy Court could have properly found that the interests of justice did not require allegations. that As is the Trustee discussed 10 be permitted later in this to add Order, these the Bankruptcy Court justifiably took a dim view of the Trustee’s (See Bankr. Order at 21 n. 3 decision to pursue this case. (expressing doubt that the Debtor’s estate stood to gain from this lawsuit).) B. Rule 52 Motion Federal Rule of Civil Procedure 52, made applicable to adversary proceedings through Federal Rule of Bankruptcy Procedure 52, provides in relevant part that, in nonjury trials, the court may enter judgment against a party if it finds that a claim “can be maintained only with a favorable finding on that issue.” FED. R. CIV. P. 52(c). A judgment pursuant to Rule 52(c) is appropriate where the plaintiff fails to make out a prima facie case or where the Court determines that “the preponderance of the evidence goes against the plaintiff’s claim.” Matis v. United States, 236 B.R. 562, 569 (E.D.N.Y. 1999) (quotation and citations omitted). draw any consider special the This rule “does not require that the court inferences evidence nonmoving party.” in in the the light nonmovant's most favor, favorable to or the Id. (quotations and citations omitted); see also Akerley v. N. Country Stone, Inc., 620 F. Supp. 2d 591, 593 (D. Vt. 2009). weighing where the the “Instead, the court acts as both judge and jury, evidence, resolving preponderance lies.” (quotations and citations omitted). 11 any conflicts, Matis, 236 and B.R. deciding at 569 1. Clients and Key Employees The Bankruptcy Court properly dismissed the Trustee’s claim that Defendant breached his fiduciary duty by diverting MRI’s clients and key employees to Cosmos because, among other things, the Trustee failed to prove that Defendant caused MRI any harm. To prevail on this claim, the Trustee would have had to establish that Defendant (1) owed MRI a fiduciary duty; (2) knowingly breached that result of the breach. duty; and (3) caused MRI harm as a See, e.g., Grund v. Del. Charter Guar. & Trust Co., __ F. Supp. 2d __, 2011 WL 2118754, at *16 (S.D.N.Y. May 26, 2011). On appeal, the Trustee maintains that Defendant caused MRI to suffer financial losses by diverting its clients and poaching its employees. The Court finds that the Bankruptcy Court’s factual findings were free from clear error and that its legal conclusions were sound. Like the Bankruptcy Court, the Court thinks that the Trustee’s attempt to blame Defendant for the demise of MRI--a company whose president had been indicted for stealing from its clients and whose board was plotting to sell its assets disingenuous. to Below, a competitor the Court for no addresses consideration--is specifically the Trustee’s allegations that the Defendant diverted clients and stole top employees. a. Clients The Bankruptcy Court could have properly found that 12 Defendant did not wrongfully divert MRI’s clients to Cosmos. In his brief, the Trustee pulls together bits of circumstantial evidence that he argues compels the opposite conclusion (see Trustee Br. at 21-23); for example, he argues that an email chain from one of MRI’s clients establishes that (1) Defendant falsely told the client that he was the client’s broker of record (2) in order to give the incorrect impression that the client had only two choices: follow Defendant to his new company or find another broker (a time-consuming process that clients would have been reluctant to undertake as their renewals came due). (See considered plausible thought id. at these 23.) emails conclusions: Defendant that was its The and Bankruptcy reached although Court, different, this client broker-of-record, however, entirely incorrectly there was no indication that Defendant was responsible for the misimpression and that, in any event, the client was already exploring new brokers even before it learned Defendant was leaving MRI. (See Bankr. Order at 31.) In inferences rejecting. short, that the the Trustee Bankruptcy implores Court this had Court good to reason draw for (See Trustee Br. at 23; Bankr. Order at 30-31.) Obviously, MRI’s clients had plenty of incentive to take their business elsewhere: MRI’s president had been indicted for stealing from clients, and MRI’s management was attempting to 13 transfer its business to a third party. (Bankr. Order at 30.) Further, as the Bankruptcy Court noted, there was a glaring absence of testimony from any of MRI’s former clients suggesting that Defendant solicited their business while he was at MRI or asked them to follow him to a new firm. (See id. at 31-32.) This alone distinguishes this case from American Federal Group, Ltd. v. Rothenberg, No. 91-CV-7860, 2003 WL 22349673, at *8 (S.D.N.Y. 2003), an opinion on which the Trustee relies. (See Trustee Br. at 20.) b. Key Employees The Bankruptcy Court could also have properly found that the Trustee failed to show that Defendant harmed MRI by taking certain “key employees” with him to Cosmos. The Bankruptcy Court gave this aspect of the Trustee’s case less attention than allegations, failed to it but it show did the Trustee’s nonetheless determined that quantifiable harm. Defendant’s conduct client-diversion that the caused Trustee MRI any Bankr. Order at 35-36. On appeal, the Trustee has not pointed to anything to suggest that the Bankruptcy Court got it wrong. Specifically, the Trustee did not show how the departure of these employees led to decreased revenue or some other financial harm. To the extent the Trustee argues that the departure of these employees prompted MRI’s former clients 14 to switch their business to Cosmos, this theory is undercut by the absence of testimony from See Bankr. Order at 31-32. MRI’s former clients. discussed already, MRI’s former clients had Further, as ample reason to leave MRI, not least that its chief had been indicted for fraud. To the extent the Trustee maintains that the employees’ departure was responsible for blowing up the MRI-NHM deal, (see Trustee Br. at 28), this is a dead end because the Trustee abandoned his effort to quantify the damages that MRI or its shareholders suffered Bankr. Order at 35. when the NHM sale fell through. See More to the point, there seems to be no evidence that NHM’s decision not to consummate the proposed sale was prompted by these employees’ departures. In fact, one witness testified that the NHM deal died when Nippon Express-MRI’s most important client--left MRI as a result of the Keyes indictment. (See Def. Br. at 30.) 2. Corporate Opportunities The Trustee also argues that the Bankruptcy Court erred by dismissing his claim that Defendant wrongfully usurped several corporate opportunities belonging to MRI. The Bankruptcy Court found that the Trustee failed to prove this claim with respect to all three of the alleged “opportunities”: (1) MRI’s clients’ renewal business; (2) the MRI-NHM deal; and (3) Cosmos’s proposal to Defendant that it buy MRI’s assets. See Bankr. Order at 37. The 15 Trustee devotes much of this section of his brief to arguing that MRI had a “tangible expectancy” that its former clients would renew their policies with MRI rather than take Trustee Br. at 32-33.) their business to Cosmos. (See As discussed already, the Bankruptcy Court could have properly found that the Trustee did not prove that Defendant improperly caused MRI’s clients to decamp for See supra 12-13. Cosmos. The Bankruptcy Court also could have properly determined that the Trustee failed to establish that Defendant usurped the Cosmos and NHM deals. As to the Cosmos deal, the Bankruptcy Court found that, when he was approached by Cosmos with a proposal to buy MRI, Defendant referred Cosmos to Keyes. Defendant eventually told Keyes about his conversation with the Cosmos representative, and both Keyes and Frank Marcigliano (MRI’s in-house counsel) said that a Cosmos deal was a nonstarter because Nippon Express--MRI’s most important client-opposed findings the idea. were not See Bankr. clearly Order erroneous, at and 14, they 39-40. These undercut any determination that Defendant somehow diverted the Cosmos deal for his own benefit. The delay in informing Keyes about the Cosmos inquiry is not an issue; had Defendant promptly told Keyes about his first conversation with Cosmos, MRI would still not have pursued the opportunity because Nippon Express remained an influential client until December 10, 1998--more than a week 16 after Keyes and Marcigliano cited Nippon’s reluctance in See Bankr. Order at 15. rejecting Cosmos’s overture. As to the NHM deal, the Court construes this portion of the Trustee’s appeal to argue that Defendant usurped the NHM deal for his own benefit by diverting MRI’s clients to Cosmos, thereby causing transaction. NHM to lose interest in finalizing the This is not altogether clear from the Trustee’s brief, which does not specifically refer to Defendant’s alleged usurping of the NHM deal until its last page, where the Trustee writes that Defendant breached his duty “by appropriating the essential elements of the NHM Transaction.” 34.) To the Transaction” extent was “the intended to essential mean (Trustee Br. at elements MRI’s former of the NHM clients, the Court has already concluded that the Bankruptcy Court could have properly found that the Trustee did not prove that Defendant engaged in any wrongdoing vis-à-vis MRI’s clients. 12-13. To the extent, however, that the See supra Trustee meant “essential elements” to mean that Defendant usurped the NHM deal by poaching MRI’s employees, the Court notes again that the evidence showed that the bolted for another broker. NHM deal died when Nippon Express See supra 15. C. The Trustee’s Cross-Appeal is Dismissed Defendant’s cross-appeal challenges the Bankruptcy Court’s decision to amend the complaint and its failure to award 17 Defendant his costs and fees as the prevailing party in the adversary already proceeding. concluded (Def. that the Br. at 33-35.) Complaint was The properly Court has dismissed, thus the first portion of Defendant’s cross-appeal is dismissed as moot. Defendant’s request for costs and fees is also dismissed for Defendant’s apparent failure to raise these issues first with the Bankruptcy Court. B.R. 448, 454 (E.D.N.Y. 1999) See, e.g., In re Pappas, 239 (noting that, in bankruptcy appeals, district courts do not generally address arguments that were not initially presented to the lower court). For clarity’s sake, the Court notes that its decision here is independent from its discussion of Defendant’s pending Rule 11 motion, below. II. The Defendant’s Rule 11 Motion is Denied Having decided that the Trustee’s appeal is meritless, the Court now turns to Defendant’s Rule 11 motion, which seeks to impose sanctions on the Trustee for his alleged bad faith in pursuing this appeal. Trustee’s prosecuting Essentially, Defendant argues that the this matter well past the point of prudence, coupled with repeated attempts to mischaracterize the bankruptcy record in his “Statement of Issues for Appeal,” compels the conclusion that the Trustee lodged this appeal for the sole improper purpose of twisting Defendant’s arm into a post-trial settlement. Defendant’s motion is DENIED. 18 A. Rule 11 Rule 11 requires that an attorney sign every pleading, written motion, and other paper filed with the courts. CIV. P. 11(a). FED. R. By doing so, the attorney certifies that to the best of [his or her] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. FED. R. CIV. P. 11(b). The 1993 Advisory Notes to subsections (b) and (c) state that the rule requires “litigants to ‘stop and think’ before initially making legal or factual contentions” and “emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no 19 longer tenable.” FED. R. CIV. P. 11 Advis. Comm. notes (1993 Amendments). The touchstone of Rule 11 is whether an attorney’s conduct objectively was unreasonable. See In re Pennie & Edmonds, LLP, 323 F.3d 86, 91 (2d Cir. 2003) Rule 11(c), empowers the court to impose “appropriate sanctions” for violations of Rule 11(b). FED. R. CIV. P. 11(c)(1). “When a court determines that Rule 11 sanctions are appropriate, it ‘has significant discretion in determining what sanctions, if any, should be imposed for a violation.’” E. Gluck Corp. v. Rothenhaus, No. 08-CV-3466, 2008 WL 2944624, at *3 (S.D.N.Y. July 31, 2008) (quoting FED. R. CIV. P. 11 Advis. Comm. Note); see also Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004) (“[I]f the district court concludes that the assertion of a given claim violates Rule 11 . . . the decision whether or not to impose sanctions is a matter for the court’s discretion.”). But any sanctions imposed “must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.” Lipin v. Hunt, 573 F. Supp. 2d 836, 843-44 (S.D.N.Y. 2008) (quoting FED. R. CIV. P. 11(c)(4)). 20 B. Sanctions are not Warranted The thrust of Defendant’s motion is that the weakness of the Trustee’s position, coupled with his attempt to mislead the Court in its “Statement of Issues,” suggests unmistakably that the Trustee brought this appeal in bad faith. disagrees. The Court To be clear, the Court shares the Bankruptcy Court’s concern that the Trustee’s dogged pursuit of this action seems to have been ill-advised. As the Bankruptcy Court explained, “[t]he purpose of bringing this action seems to have been lost in the fog of litigation, but at this point, it is obvious that there is no body of creditors of the Debtor[] for whose benefit this action Nevertheless, was prosecuted.” the question of Bankr. whether Order the at 21 Trustee n. 3. should be sanctioned for litigating the underlying adversary proceeding is not before the Court. The Trustee having prosecuted the adversary proceeding, the issue for the Court is whether the Trustee acted unreasonably in appealing his defeat. Although the Court found the Trustee’s position on appeal extremely weak, the Trustee’s arguments were not wholly devoid of evidentiary support and, in the Court’s view, do not merit sanctions. See In re Carlton Concrete Corp., No. 08-CV-0242, 2008 WL 4443233, at *11 n.9 (E.D.N.Y. 2008) (declining to sanction appellant under Bankruptcy Rule 8020 because, “[a]lthough the Court finds EDS's position to be extremely 21 weak on this appeal, EDS attempted (albeit unsuccessfully) to cite to case authority and portions of the record that it believed supported its position”); cf. In re Negosh, No. 06-CV-5617, 2007 WL 2445158, at *6 (E.D.N.Y. 2007) (awarding sanctions under Bankruptcy Rule 8020 where appeal was “totally lacking in merit, framed with no relevant supporting unsupported by the law, conclusory evidence”). In in nature, and so deciding, utterly the Court rejects Defendant’s allegations that the Trustee attempted to mislead the Court by misstating the record in his “Statement of Issues.” that Although perhaps awkwardly worded, the Court finds the cited paragraphs fall far short of knowing misrepresentations. CONCLUSION For August 24, the 2010 foregoing Order is reasons, AFFIRMED the in Bankruptcy its Court’s entirety. The Trustee’s appeal and Defendant’s cross-appeals are dismissed, and Defendant shall recover the costs of the appeal from the Trustee. See FED. R. BANKR. PROC. 8014. Defendant’s Rule 11 motion (Docket Entry 11) is DENIED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: August 25 , 2011 Central Islip, New York 22
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