ZION v. NASSAN

circumstances."). Bad faith is not required. Landon, 938 F.2d at 453 n. 3; Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1358 (3d Cir. 1990); Clement v. Public Serv. Elec. And Gas Co., 198 F.R.D. 634, 637 (D.N.J. 2001).

Rule 11 "seeks to strike a balance between the need to curtail abuse of the legal system and the need to encourage creativity and vitality in the law." Gaiardo v. Ethyl Corp., 835 F.2d 479, 483-84 (3d Cir. 1987). A "district court must exercise discretion and sound judgment in dealing with the myriad methods with which lawyers may abuse the judicial process." Eavenson, Auchmuty Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir. 1985). "Rule 11 is intended for only exceptional circumstances." Gaiardo, 835 F.2d at 483.

The "safe harbor" provision of Rule 11 requires a moving party to serve a motion for sanctions under Federal Rule of Civil Procedure 5, and to allow for the opposing party to take remedial action "within 21 days after service or within another time the court sets." FED. R. CIV. P. 11(c)(2); see Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 158-59 (D.N.J. 1999). Nassan complied with this provision.

B. Discussion with respect to Motion for Sanctions

In Nassan's motion to enforce sanctions, he raised three main arguments: (1) Fieger violated Rule 11(b)(3) by pleading materially false statements of fact and law and by omitting essential facts in the pleadings in an attempt to mislead the court and the public, (2) Fieger violated Rule 11(b)(3) by failing to conduct a reasonable inquiry before filing the original complaint and the amended complaint, and (3) Fieger must be sanctioned as a result of past disciplinary measures taken against him in other jurisdictions.

Plaintiffs responded to the motion. Plaintiffs argued that the Rule 11 motion improperly tests the legal efficacy of the allegations in complaint and amended complaint, and they conducted a "reasonable inquiry" as required by Rule 11(b). Plaintiffs additionally argued that Fieger's alleged misconduct in other jurisdictions has no relevance in determining whether the enforcement of sanctions is appropriate in this case.

1. Nassan's arguments that Fieger violated Rule 11(b)(3)

Nassan argues that, in violation of Rule 11(b)(3), plaintiffs misrepresented and omitted facts that mislead the court. Nassan also asserts that Fieger violated Rule 11(b)(3) by failing to conduct a reasonable inquiry with respect to the factual allegations in the complaint and amended complaint before filing those documents. Nassan specifically targets several of the allegations in the complaint under Rule 11(b)(3).

Nassan challenges plaintiffs' contention that Nicholas Haniotakis posed no risk of harm to the officers or others at the time of the shooting. (Am. Compl. ¶¶ 16-17.) Nassan asserts that toxicology reports indicate Nicholas Haniotakis was under the influence of alcohol and illegal substances while in control of his vehicle on the night of the incident, and therefore he posed a dangerous threat to the public. By omitting the results of the toxicology report, Nassan contends that Fieger engaged in a scheme to hide facts demonstrating that Nicholas Haniotakis used the vehicle as a weapon. Nassan argues that Fieger filed the original complaint just seventeen days after the alleged incident and was under no emergency or time constraints. Nassan argues this was calculated to avoid the inclusion in the complaint of the results of the toxicology report, and demonstrates Fieger's efforts to fashion a sham version of facts. Once the toxicology report, photographs, and news reports were released, Fieger ignored their significance when he filed the amended complaint. Defendants argue this ignorance demonstrated his failure to conduct a

reasonable inquiry.

Nassan additionally argues that the complaint and amended complaint imply that, after being followed by Nassan and Donnelly, Nicholas Haniotakis willfully "stopped" his automobile. (See Am. Compl. ¶ 15.) Instead, Nassan maintains, Nicholas Haniotakis's car did not come to a stop until it impacted a telephone pole. Nassan argues that the allegation that the vehicle stopped is materially false because it suggests that Nicholas Haniotakis acted as a law-abiding citizen, heeding police commands to stop his car. Nassan asserts that the complaint and amended complaint falsely imply that the unlawful flight ended when the police shot Nicholas Haniotakis. Nassan argues that Fieger may not assert he relied upon "information and belief" in claiming that Nicholas Haniotakis stopped his car, because Nicholas Haniotakis is deceased and none of plaintiffs were witnesses to the incident.

Nassan attacks the failure of the amended complaint to elaborate on how "considerable distance and barriers" protected the police. (Compl. (Docket No. 1) ¶ 17.) Nassan argues that the court at oral argument directed plaintiffs to clarify the factual allegations regarding distance and barriers, and plaintiffs failed to do so in the amended complaint. (See Am. Compl. ¶¶ 17-18.)

2. Plaintiffs' response to Nassan's arguments with respect to Rule 11(b)(3)

In opposition to the motion, plaintiffs contend that the imposition of sanctions pursuant to Rule 11(b)(3) is only appropriate when the filing of the complaint constitutes abusive litigation or misuse of the court's process, or where a litigant makes untruthful statements or misrepresentations to the court. Plaintiffs argue that Nassan's motion to enforce sanctions is disingenuous, and that the motion was not filed for a purpose proper under Rule 11. Plaintiffs assert the motion is simply a veiled attempt to maneuver around unsuccessful Rule 12(b)(6) motions to dismiss. Plaintiffs refute Nassan's argument that Fieger failed to conduct a reasonable inquiry. Plaintiffs argue that Rule 11 sanctions are not appropriate when the parties disagree about factual matters before the parties have been afforded discovery.

Plaintiffs contest Nassan's reliance upon toxicology reports, photographs, news reports, and press releases, arguing that these provide defendants with a self-serving account of events that are not dispositive of any factual issues. Plaintiffs note that they have been denied access to evidence gathered as part of a joint investigation between the Pittsburgh Bureau of Police and the Pennsylvania State Police. Specifically, with respect to the toxicology reports, plaintiffs deny that filing both the complaint and the amended complaint without referencing the reports is grounds for the imposition of Rule 11 sanctions. Plaintiffs assert that the reports are subject to expert interpretation, and, more importantly, are irrelevant because Nassan and Donnelly did not know who was driving the vehicle or have any information about Nicholas Haniotakis at the time of the shooting. Plaintiffs argue that whether Nicholas Haniotakis was under the influence of any substances does not create an objectively reasonable opportunity for Nassan to open fire. Instead, whether the use of deadly force was reasonable under the circumstances requires an assessment of all physical evidence and testimony from witnesses. The physical evidence and testimony will be revealed during discovery. Concerning the photographs of alleged damage caused by Nicholas Haniotakis the night of the incident, plaintiffs contend that the photographs are not authenticated.

With respect to Nassan's attack on the allegations regarding the barriers and distance between the officers and Nicholas Haniotakis, plaintiffs point to the court's statements during the November 19, 2009 hearing, whereby the court rejected defendants' argument that plaintiffs were required to plead a specific distance between the actors. Plaintiffs were merely asked to clarify that the alleged barriers were a reference to police vehicles.

3. Analysis

An attorney must conduct a reasonable inquiry before filing a lawsuit, and cannot pursue the action unless he or she reasonably believes that facts exist to support the allegations. FED. R. CIV. P. 11(b)(3); see Chandler v. Norwest Bank Minn., Nat'l Ass'n, 137 F.3d 1053, 1057 (10th Cir. 1998) (holding that, although the attorney may have reasonably believed a claim would have evidentiary support, the attorney failed to conduct a reasonable inquiry). The allegations in the complaint must be likely to have evidentiary support following "investigations or discovery," or, if so identified, "are reasonably based on a lack of information or belief." 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1334 at 539 (3d ed. 2004). A court must consider six factors in evaluating what constitutes a reasonable inquiry under the circumstances:

(1) the amount of time available to the signer for conducting a factual and legal investigation; (2) the necessity of relying on a client for the underlying factual information; (3) the plausibility of the legal position advocated; (4) the complexity of the legal and factual issues implicated; (5) whether the signer depended on forwarding counsel or another member of the bar; and (6) whether the signer was in a position to know or acquire the relevant factual details.

See Hanoverian, Inc. v. Pa. Dep't of Envtl. Prot., No. 1:07-CV-00658, 2008 WL 906545, at *10 (M.D. Pa. Mar. 31, 2008) (citing CTC Imps. Exps. v. Nigerian Petroleum Corp., 951 F.2d 573, 578 (3d Cir. 1991)).

With respect to the first factor, by the time the amended complaint — the subject of the Rule 11 motion — was filed, Fieger had a relatively long period of time to conduct an investigation. At the time Fieger signed the amended complaint, however, he was not in a position to know or acquire all relevant factual details. Plaintiffs assert that the results of an investigation jointly performed by the Pittsburgh Bureau of Police and the Pennsylvania State Police were not shared with plaintiffs, making plaintiffs' investigation more difficult. With respect to the second factor, Fieger could not rely upon a client for underlying factual information in this case, because Nicholas Haniotakis is deceased. With respect to the third factor, the position asserted by plaintiffs is plausible, as plausibility was already analyzed in the context of the motions to dismiss. With respect to the fourth factor, the factual issues implicated are particularly complex, since, under Fourth Amendment jurisprudence, the analysis concerns the reasonableness of defendants' actions under the circumstances. Such an analysis is fact-intensive and will require discovery to bring to light all pertinent facts. The fifth factor is not implicated in this case. The sixth factor is problematic by reason of the investigation results not being shared with plaintiffs. After considering all the relevant factors, the court finds that they weigh in favor of a finding that the inquiry by Fieger was reasonable.

The court notes that the amended complaint was also signed by Austin Henry ("Henry"), local counsel for plaintiffs (Am. Compl. at 21.) There are no contentions with respect to the extent of each attorney's participation in the investigation of the case, and it is not known if an attorney for plaintiffs relied upon co-counsel. Under those circumstances, it is perplexing that Nassan did not reference Henry in the motion. The averments in Nassan's Rule 11 motion focus solely on the conduct of Fieger.

To determine whether Fieger misrepresented facts included in the complaint and amended complaint requires the court to consider the plausibility of the allegations in those pleadings. Fieger's filing of the suit seventeen days after the incident does not, without more, demonstrate that he intended to make false factual allegations to the court. The assertions that Nicholas Haniotakis posed no risk of harm to the officers at the time of the shooting, Nicholas Haniotakis stopped his vehicle, and barriers were present arguably could be misleading if Nassan's characterization of the facts is accurate. Nassan, however, does not specifically refute that Nicholas Haniotakis's car was stopped at the time he was shot — Nassan argues it was stopped because Nicholas Haniotakis hit a telephone pole — or that Nicholas Haniotakis was shot in the back. Under those circumstances, at this stage the court cannot find Fieger failed to conduct a reasonable inquiry or did not reasonably believe facts exist that refute defendants' version of the facts.

With respect to Nassan's arguments concerning omitted facts, the court recognizes that the omission of "facts that [a]re highly relevant to an accurate characterization of the facts" stated may be a basis for the imposition of Rule 11 sanctions. In re Ronco, Inc., 838 F.2d 212, 218 (7th Cir. 1988). For example, in Association of Minority Contractors Suppliers v. Halliday Properties, Inc., No. 97-274, 1998 WL 480835, at *6 (E.D. Pa. Aug. 13, 1998), the plaintiff brought antitrust claims against the defendants, alleging the defendants were part of a conspiracy to prevent the plaintiff from obtaining bonding that was necessary for the plaintiff to be awarded a construction contract. The plaintiff's claims involved issues of fact surrounding the activities at meetings the defendants had with alleged co-conspirators, and the details of those meetings were unknown to the plaintiffs at the time of the filing of the amended complaint. Discovery revealed that the defendants' actions were not in violation of the antitrust laws. The court stated that "[w]hile Defendants believe that discovery did not develop those facts in [the plaintiff's] favor, it does not necessarily result in an imposition of Rule 11 sanctions," especially in a case that required significant discovery regarding specific communications at the meetings. Id. The court was more troubled by the plaintiff's use of "pleading techniques, including the use of the term `co-conspirators' in the Amended Complaint instead of revealing the identity of those individuals, to avoid a motion to dismiss." Id. Despite this, the court held that sanctions were not appropriate. Many facts depended on information that could only be uncovered during discovery:

In some cases, [the plaintiff's pleading] techniques could lead to the imposition of sanctions. The court recognizes that [the plaintiff's] counsel's drafting of the Amended Complaint comes close to crossing the line between stating the facts in the client's favor and omitting key facts. However, the court again recognizes that in this case, many of the crucial facts, including the identity of all of the individuals involved, were likely unknown to [the plaintiff] and depended solely on information known only to the participants in the alleged conspiracy which could only be found through the discovery process. The broad discovery rules permitted in the federal court system serves, in part, to allow plaintiffs to develop such unknown factual issues and to allow defendants to uncover the details which are inevitably lacking in a complaint under the notice pleading system.

Id. (emphasis added). Although the notice pleading system arguably has been affected by the Iqbal decision, the discovery rules have been not been significantly altered since theAssociation of Minority Contractors Suppliers decision. The principles behind the discovery process set forth in Association of Minority Contractors Suppliers still apply today.

This case is similar to Association of Minority Contractors Suppliers in that discovery is necessary to refine the facts. At this juncture, given the matters not disputed by Nassan, the court cannot conclude the plaintiffs' characterization of the facts is unreasonable. As already analyzed in the context of the motions to dismiss the amended complaint, plaintiff is not obligated to plead facts that support defendants' qualified immunity arguments.

There is no evidence to suggest that Fieger brought this action for an improper purpose such as harassment or delay. Such a showing is an important consideration in determining whether to award sanctions. See Rosenberg v. JCA Assocs., Inc., No. 03-0274, 2007 WL 1038893, at *19 (D.N.J. Mar. 30, 2007) (noting a party's "motivation for bringing [the] lawsuit is an important element in determining whether to award attorney's fees and sanctions," and denying a motion for sanctions since there was no evidence that the action was brought for improper purposes); Goodman v. Goodman, No. 04-3869, 2007 WL 748445, at *2 (D.N.J. Mar. 6, 2007) ("Before it can impose sanctions, this Court must find that the amended complaint was not objectively reasonable or was filed for an improper purpose"). In light of the foregoing, the court must deny Nassan's motion to enforce sanctions.

4. Fieger's alleged past misconduct

Nassan also bases the motion to enforce sanctions on Fieger's past conduct in other jurisdictions. Nassan argues that Fieger's past conduct is a factor in favoring the imposition of Rule 11 sanctions against him. Plaintiffs deny several of the allegations that Fieger was sanctioned in the past. A history of litigation abuses may be a relevant consideration in determining whether sanctions are warranted. See McLaughlin v. Bradlee, 602 F. Supp. 1412, 1418 (D.D.C. 1985). Even assuming Nassan's allegations of past misconduct are true, however, the court cannot find in the specific context of this motion that his conduct outweighs the relevant factors that the court considered in evaluating the reasonableness of the inquiry conducted by plaintiffs' counsel.

5. Plaintiffs' request for attorney's fees

In responding to the motion, plaintiffs assert an entitlement to an award of counsel fees for the costs incurred in responding to Nassan's "frivolous Rule 11 motion." (Docket No. 68 at 24.) Plaintiffs did not, however, file a motion requesting attorney's fees, and the issue has not been fully briefed. A filing is "frivolous" for Rule 11 purposes if it is both baseless and made without a reasonable inquiry. Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005). There were sufficient matters of concern raised by Nassan in the Rule 11 motion that even if plaintiffs' request for fees is fully briefed, the likelihood of an award in plaintiffs' favor is remote. The court will not address plaintiffs' demand.

Conclusion

For the reasons set forth above, the motions to dismiss are denied, and the motion to enforce sanctions is denied.

Order

THE COURT HEREBY ORDERS that the motion to dismiss amended complaint filed by Trooper Samuel Nassan (Docket No. 71), the motion to dismiss amended complaint filed by Sergeant Terence Donnelly (Docket No. 70), and the motion to dismiss filed by Commissioner Frank Pawlowski, Major Terry Seilhamer, Captain Sheldon Epstein, and Lieutenant David Heckman (Docket No. 73) are DENIED. IT IS FURTHER ORDERED that the motion to enforce sanctions filed by Trooper Samuel Nassan (Docket No. 63) is DENIED.

THE COURT FURTHER ORDERS that defendants shall file answers to the amended complaint by August 13, 2010, and that, within twenty-one days of the filing of the answers, plaintiffs must file a reply responding to the factual allegations in the answers. This ruling is without prejudice to defendants' ability to file motions for judgment on the pleadings with respect to qualified immunity after plaintiffs reply to the answers.