Commercial Litigation and Arbitration

Noerr-Pennington Doctrine Protects Actions before Courts and Administrative Agencies, Pre-Litigation Threat Letters and Settlement Offers and “Concerted Efforts Incident to Litigation” — Sham Exception Requires Objective Baselessness

Singh v. NYCTL 2009-A Trust, 2017 U.S. App. LEXIS 4961 (2d Cir. Mar. 21, 2017):



Plaintiff-appellant Powan K. Singh appeals from a July 20, 2016 order dismissing his claims against defendants-appellees NYCTL 2009-A Trust, NYCTL 1998-2 Trust, NYCTL 2011-A Trust, NYCTL 2012-A Trust, Bank of New York Mellon, Tower Capital Management, LLC, Plymouth Park Tax Services LLC ("XSpand"), Mtag Services, LLC, and Mooring Tax Asset Group, LLC. Singh alleged that the defendants improperly sought to collect attorneys' fees and costs incurred in connection with their efforts to foreclose on a tax lien on his property. Singh argues that, prior to entry of a final judgment, New York law prohibits the defendants [*2]  from seeking attorneys' fees and costs as part of the settlement of a foreclosure action. On that basis, Singh sought damages from the defendants for himself and a putative class under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., New York General Business Law § 349, and New York common law. On July 20, 2016, the District Court dismissed each of Singh's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). We assume the parties' familiarity with the underlying facts, procedural history of the case, and the issues on appeal.

We review de novo a dismissal of a complaint under Rule 12(b)(6), "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Although all allegations contained in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). A claim will have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

The District Court dismissed all of Singh's claims on three different grounds: [*3]  (1) that under New York law, attorneys' fees and costs are collectable prior to the entry of a final foreclosure judgment; (2) that the Noerr-Pennington doctrine bars all of Singh's claims; and (3) that each of Singh's claims were inadequately pleaded.1 On appeal, Singh contests each of these holdings.

1   The claims we discuss here arise solely from the foreclosure action on Singh's property at 1062 Liberty Avenue, Brooklyn, NY. Singh does not appeal the District Court's dismissal of his claims arising from the foreclosure of his property at 435 Autumn Avenue, Brooklyn, NY.

We need not address Singh's arguments concerning New York law or the adequacy of his pleadings because all of his claims are barred by the Noerr-Pennington doctrine. Established by the United States Supreme Court in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965), this First Amendment doctrine protects efforts to influence governmental action through litigation and lobbying. Although the doctrine first arose in the context of petitions for anti-competitive legislation, the Noerr-Pennington doctrine encompasses all petitioning activity, including "concerted actions before courts and administrative agencies" and "concerted efforts incident to litigation, such as pre-litigation threat letters and settlement offers." Primetime 24 Joint Venture v. Nat'l Broad. Co., 219 F.3d 92, 99-100 (2d Cir. 2000) (internal quotation marks and citations omitted). While litigation-related communications "are not literally petitions to the government," they are "a preliminary step to resort to litigation if necessary" and "therefore fall[ ] within [*4]  the protection of the Noerr-Pennington doctrine." Id. at 100. Here, each of Singh's claims is predicated on the defendants' alleged misrepresentations in demand letters, default letters, and settlement communications. These claims are barred under the Noerr-Pennington doctrine. Id.; see also Sosa v. DIRECTV, Inc., 437 F.3d 923, 942 (9th Cir. 2006) (applying Noerr-Pennington immunity to litigation communication against RICO claim). Accordingly, Singh's claims are barred.

Though Singh contends otherwise, his claims do not fall under the "sham" exception to the Noerr-Pennington doctrine. The sham exception applies only where the litigation is "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits." Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., 508 U.S. 49, 60, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993). We agree with the District Court that the foreclosure litigation against Singh was not objectively baseless because Singh admitted that he failed to pay the taxes on his property. Moreover, the defendants' interpretation of New York law to authorize the recovery of attorneys' fees and costs is not objectively baseless given that at least one federal court had agreed with that interpretation. See Boyd v. J.E. Robert Co., No. 05-cv-2455, 2012 U.S. Dist. LEXIS 143365, 2012 WL 4718823, at *9-11 (E.D.N.Y. Aug. 27, 2012) (report and recommendation), adopted as modified, 2012 U.S. Dist. LEXIS 142688, 2012 WL 4718723 (E.D.N.Y. Oct. 2, 2012). Indeed, Singh [*5]  concedes in his opening brief that New York City Administrative Code § 11-335 "arguably authorizes a party to demand attorney's fees after a foreclosure action has commenced but before judgment." Pl. Br. at 18.

Singh also cites a number of cases arising under the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., in support of his argument. For the reasons stated by the District Court, we find Singh's FDCPA arguments unavailing.


We have reviewed all of the arguments raised by Singh on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the July 20, 2016 order of the District Court.

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