While District Court May Not Bar Party from Filing a Motion, It May Construe a Detailed Premotion Letter as a Motion and Act on It, without Affording Opportunity to File Additional Papers

Best Payphones, Inc. v. Manhattan Telecommc’ns Corp., 2011 U.S. App. LEXIS 23528 (2d Cir. Nov. 23, 2011):

***Best's proposed motion [for § 1927 sanctions] lacked merit. In its Pre-motion Letter, Best argued that MetTel's statements were irreconcilable or inconsistent with the record. In fact, the claims and arguments to which Best objected were supported by the record, accepted by the bankruptcy court, and ultimately accepted by the district court.

Regardless of the merits of the proposed motion, Best is correct that a district court "has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure." Richardson Greenshields Secs., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir. 1987). In Richardson, we found that the district judge erred when she effectively prevented the Laus from filing a motion for leave to amend their answer. We have noted that "[f]iling at the trial court level with a view to 'making a record' is crucial because, absent extraordinary circumstances, federal appellate courts will not consider rulings or evidence which are not part of the trial record." IBM v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975). "Moreover, it is of no avail to an appellant that the trial court itself may have prevented him from including a particular item in the trial record; the appellate court will not speculate about the proceedings below, but will rely only upon the record actually made." Id.

Here, however, the district court did not explicitly deny the request for a pre-motion conference. Rather, the court appears to have construed the Pre-Motion Letter as the motion itself, concluding: "[Best's counsel] cannot supplement the arguments in Best's briefs in the guise of a motion for sanctions filed fifteen months after briefing on Best's appeal closed. In any event, there is no basis for granting sanctions here under 28 U.S.C. § 1927." In this Circuit, district judges have, in some cases, construed pre-motion letters as the motions themselves and denied the motions. See, e.g., Manus Sports Gloves, LLC v. Everlast Worldwide, Inc., 759 F. Supp. 2d 459, 459-60 (S.D.N.Y. 2010) (construing letter request for pre-motion conference as a motion for partial judgment on the pleadings and denying the motion); Abdell v. City of New York, No. 05 civ. 8453, 2006 U.S. Dist. LEXIS 65222, 2006 WL 2620927, at *1 (S.D.N.Y. Sept. 12, 2006) (construing request for pre-motion conference as motion to amend and denying the motion).

Although the Pre-Motion Letter requested a pre-motion conference, and was styled as a letter rather than as a motion, the letter consisted of seven single-spaced pages laying out several claimed "irreconcilable or clearly inconsistent statements made by Appellee's counsel." The letter concluded, "Therefore . . . Best should be awarded sanctions under Section 1927." MetTel filed a response of four single-spaced pages, responding to the merits of Best's sanctions argument and attaching two exhibits, and Best filed a letter in reply.

Given the length and detail of the Pre-motion Letter and responses, and the clear lack of merit of the sanctions argument, the district court did not abuse its discretion in construing the letter as a motion and denying the motion. While a court may not deny a party the opportunity to file even a frivolous motion, Best had the opportunity to make the arguments necessary to preserve its sanctions motion for appellate review, and Best has not pointed to any additional argument it would have made had it filed full motion papers.

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