Malkan v. Mutua, Ostrove v. U.S. Dist. Ct. for W. Dist. of N.Y.

17-38-cv, 17-228-cv Malkan v. Mutua, Ostrove v. U.S. Dist. Ct. for W. Dist. Of N.Y. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 3 30th day of October, two thousand seventeen. 4 5 Present: RALPH K. WINTER, 6 JOHN M. WALKER, JR, 7 ROSEMARY S. POOLER. 8 Circuit Judges. 9 ___________________________________________________ 10 11 JEFFREY MALKAN, 12 Plaintiff-Appellant, 13 14 v. 17-38 15 16 MAKAU W. MUTUA, 17 Defendant-Appellee. 18 ___________________________________________________ 19 20 FREDERIC D. OSTROVE, 21 Plaintiff-Appellant, 22 23 v. 17-228 24 25 UNITED STATES DISTRICT COURT 26 FOR THE WESTERN DISTRICT OF NEW YORK, 27 Defendant-Appellee.1 28 _____________________________________________________ 29 30 Appearing for Appellants: Jeffrey Malkan, pro se, St. James, NY. 31 1 The clerk is respectfully directed to amend the caption as above. 1 1 Frederic D. Ostrove, Leeds Brown Law, P.C., pro se, Carle Place, 2 N.Y. 3 4 Appearing for Appellees: Jeffrey D. Lang, Assistant Solicitor General (Barbara D. 5 Underwood, Solicitor General, and Victor Paladino, on the brief), 6 for Eric T. Schneiderman, Attorney General of the State of New 7 York, Albany, NY for Appellee Makau Mutua. 8 9 Appeal from the United States District Court for the Western District of New York (Telesca, J.). 10 11 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 12 AND DECREED that the order of said District Court be and it hereby is AFFIRMED. 13 14 Appellants Jeffrey Malkan and Frederic Ostrove separately appeal from the December 15 18, 2016 order of the United States District Court for the Western District of New York 16 (Telesca, J.), granting summary judgment to Makau Mutua, former dean of the State University 17 of New York at Buffalo Law School, and sanctioning Malkan and Ostrove for moving to 18 sanction the Assistant Attorney Generals representing Mutua. Malkan sued Mutua under 42 19 U.S.C. § 1983 for violating his Fourteenth Amendment right to due process by failing to extend 20 Malkan’s term appointment as a clinical law professor without going through the typical faculty 21 recommendation process. Until this appeal, Ostrove was Malkan’s attorney. Malkan appeals both 22 the grant of summary judgment and his verbal sanction. Ostrove appeals only the sanction as 23 applied to him. We consider their appeals in tandem. We assume the parties’ familiarity with the 24 underlying facts, procedural history, and specification of issues for review. 25 26 We review de novo a district court’s grant of summary judgment, with the view that 27 summary judgment is appropriate only “if the movant shows that there is no genuine dispute as 28 to any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. 29 Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (internal quotation marks omitted). 30 31 The district court correctly granted summary judgment to Mutua. Due process can only 32 be violated if a protected property interest is at issue. White Plains Towing Corp. v. Patterson, 33 991 F.2d 1049, 1061-62 (2d Cir. 1993). “A person’s interest in a benefit is a ‘property’ interest 34 for due process purposes if there are such rules or mutually explicit understandings that support 35 his claim of entitlement to the benefit and that he may invoke at a hearing.” Perry v. Sindermann, 36 408 U.S. 593, 601 (1972) (citing Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 37 (1972)). “Mutually explicit understandings” may include a “written contract with an explicit 38 tenure provision” between a professor and state university. Id. But “mutual understandings and 39 customs could not create a property interest for purposes of due process when they are contrary 40 to the express provisions of regulations and statutes.” Baden v. Koch, 638 F.2d 486, 492 (2d Cir. 41 1980). SUNY regulations cap term appointments at three years and do not “create any manner of 42 legal right, interest or expectancy in any other appointment or renewal.” 8 N.Y.C.R.R. § 335.13. 43 None of what Malkan cites—UB School of Law’s by-laws, customs, accreditation reports, the 44 American Bar Association’s standards, and his contract—overrides that regulatory term. See 45 Baden, 638 F.2d at 492 (city charter permitted official’s removal and therefore he “could be 46 removed without a prior hearing regardless of any mutual understandings between the 2 1 individuals involved in the transaction”). As for whether UB School of Law is misrepresenting 2 the employment status of its clinical professors to the American Bar Association, Malkan offers 3 no estoppel argument, and we decline to consider one. 4 5 Sanctions under Rule 11, 28 U.S.C. § 1927, and the district court’s inherent powers are 6 reviewed for abuse of discretion. Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir. 2009). “A 7 district court has abused its discretion if it based its ruling on an erroneous view of the law or on 8 a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located 9 within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal 10 punctuation and citations omitted). 11 12 “A pleading, motion or other paper violates Rule 11 either when it has been interposed 13 for any improper purpose, or where, after reasonable inquiry, a competent attorney could not 14 form a reasonable belief that the pleading is well grounded in fact and is warranted by existing 15 law or a good faith argument for the extension, modification or reversal of existing law.” 16 Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d Cir. 2002) (internal citations, quotation marks, and 17 emphasis omitted). “The mental state applicable to liability for Rule 11 sanctions initiated by 18 motion is objective unreasonableness, i.e., liability may be imposed if the lawyer’s claim to have 19 evidentiary support is not objectively reasonable.” In re Pennie & Edmonds LLP, 323 F.3d 86, 20 91 (2d Cir. 2003). Additionally, a court may sanction an attorney who “multiplies the 21 proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927. Sanctions under 22 Section 1927 require a showing that an “attorney’s actions are so completely without merit as to 23 require the conclusion that they must have been undertaken for some improper purpose such as 24 delay,” and “a finding of conduct constituting or akin to bad faith.” In re 60 East 80th Street 25 Equities, 218 F.3d 109, 115 (2d Cir. 2000). 26 27 The district court did not exceed its discretion to sanction both Malkan and Ostrove. 28 Malkan’s sanctions motion claiming perjury by Mutua, filed by Ostrove, alleged only 29 “[d]ifferences in recollection,” which “alone do not add up to perjury.” United States v. Sanchez, 30 969 F.2d 1409, 1415 (2d Cir. 1992). The district court, which has firsthand knowledge of the 31 proceedings before it, reasonably found that the motion had no factual or legal basis, and was 32 meant to harass Malkan’s adversary. 33 34 Ostrove argues that opposing counsel failed to comply with Rule 11’s safe harbor 35 provision. Rule 11 provides that a “motion for sanctions must be made separately from any other 36 motion and must describe the specific conduct that allegedly violates Rule 11(b)…[and] must not 37 be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial 38 is withdrawn or appropriately corrected within 21 days.” Fed. R. Civ. P. 11(c)(2). “Rule 11(c)(2) 39 requires only the service of ‘[a] motion’ or ‘[t]he motion’ . . . . It does not require the service of a 40 memorandum of law or affidavits, nor does it use the words ‘formal fully supported motion.’” 41 Star Mark Mgmt., Inc. v. Koon Chung Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 176 42 (2d Cir. 2012). Opposing counsel provided Ostrove with a copy of his notice of motion and their 43 correspondence concerning the sanctions motion Ostrove had filed. Cf. Malkan’s App’x 72; 44 0356–59. That sufficed. 45 3 1 As well, Ostrove challenges the finding that he acted in bad faith. A bad faith claim is 2 “motivated by improper purposes such as harassment or delay.” Enmon v. Prospect Capital 3 Corp., 675 F.3d 138, 143 (2d Cir. 2012). The district court had the discretion to find that 4 Malkan’s sanctions motion was frivolous, and filed only to harass Mutua, “needlessly increase 5 the costs of this litigation, and unduly burden the court.” Malkan’s App’x 88. Moreover, in 6 finding bad faith, the magistrate judge observed (and the district court agreed) that Ostrove was 7 reckless; he cited cases that undermined his own arguments as well as bad law. Id. at 89. Finally, 8 the magistrate judge separately considered the conduct of Malkan and Ostrove and recommended 9 different penalties. Id. at 91. 10 11 We have considered the remainder of Appellants’ arguments and find them to be without 12 merit. Accordingly, the order of the district court hereby is AFFIRMED. 13 14 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 4