Commercial Litigation and Arbitration

Issues Not Raised in Appellate Brief, Even Pro Se, Waived — Meaning of “Abuse of Discretion” in Second Circuit

Chien v. BarronCapital Advisors, LLC, 2012 U.S. App. LEXIS 26813 (2d Cir. Jan. 30, 2012):

"We review an award of Rule 11 sanctions for abuse of discretion." Lawrence v. Richman Grp. of CT LLC, 620 F.3d 153, 156 (2d Cir. 2010) (per curiam) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). "An 'abuse of discretion' occurs when a district court 'base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located within the range of permissible decisions.'" Kiobel v. Millson, 592 F.3d 78, 81 (2d Cir. 2010) (quoting Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)) (alterations in original).

Here, as Chien does not contest the district court's primary reason for imposing sanctions--that he has repeatedly attempted to represent USChina Channel LLC as a pro se litigant--or its calculation of the fees at issue in relation to the experience, hourly rates, or time records of the attorneys, he has abandoned the issues, and we decline to consider them. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that issues not raised in a pro se brief were abandoned). Chien does contest the district court's jurisdiction to impose sanctions, citing its determination that Chien lacked standing to bring suit. However, whether Chien had standing is a different issue than whether the district court had subject matter jurisdiction. The district court had diversity jurisdiction because Chien was seeking over $160,000 and was a resident of Connecticut, whereas Barron Capitol was a Delaware LLC with a principal place of business in the State of New York, and Skypeople was a Florida corporation with a principal place of business in China. See 28 U.S.C. § 1332(a) & (c). Furthermore, even if the district court lacked subject matter jurisdiction over his complaint, it could still impose Rule 11 sanctions. See Willy v. Coastal Corp., 503 U.S. 131, 132 (1992) (holding that a district court can impose Rule 11 sanctions "in a case in which the district court is later determined to be without subject-matter jurisdiction").

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