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Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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Inherent Power Sanctions — Extrajudicial Misconduct — Dismissal for Threatening Own Counsel, Mediator, Opposing Claimants and Individual Representative of Opposing Party

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Davis v. St. Luke’s-Roosevelt Hosp. Ctr., 2019 WL 2754725 (2d Cir July 2, 2019) (unpublished):

*1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Barry Davis, proceeding pro se, appeals from a judgment of the District Court (Oetken, J.) dismissing his employment discrimination suit as a sanction for the threatening text messages that Davis sent his attorney. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

Courts have inherent authority to sanction bad-faith conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). “The sanction of dismissal,” however, “is a drastic remedy that should be imposed only in extreme circumstances, usually after consideration of alternative, less drastic sanctions.” Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 140 (2d Cir. 2007) (quotation marks omitted). Where conduct reflects “flagrant bad faith,” dismissal may be warranted “not merely to penalize” but also “to deter those who might be tempted to such conduct in the absence of such a deterrent.” Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976); see also Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 303 (2d Cir. 2009).

Here, the District Court did not abuse its discretion in dismissing Davis’s suit. The District Court found that Davis’s initial message to his attorney constituted a threat against the attorney, a mediator, defense counsel, and a representative of the Defendants. It also found that Davis’s explanations regarding the message were implausible. Davis’s second message to his attorney continued the threat. And Davis’s later apologies acknowledged that the prior messages were inappropriate and written in anger, suggesting that he understood that they were threatening in nature. The District Court considered alternative penalties, but it reasonably determined that they would be inadequate given the egregiousness of Davis’s misconduct. The District Court also reasonably determined that financial penalties were inappropriate in the circumstances.

We have considered Davis’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

 

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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