Commercial Litigation and Arbitration

FRAP 38 Sanctions Appropriate for Appeal “Brought without the Slightest Chance of Success” and Which “Thus Should Not Have Been Brought at All” (Good Quote)

Beter v. Murdoch, 2019 WL 2537524 (2d Cir. June 20, 2019) (unpublished):





Plaintiff-Appellant Petra Beter, formerly a photographer for Michael Bloomberg’s first mayoral campaign, appeals from the judgment of the district court dismissing her lawsuit asserting various causes of action against Defendants-Appellees stemming from the New York Post’s publication of an article that Beter argues is false and defamatory, and from the denial of leave to amend her complaint.


In her amended complaint, Beter brought claims for a substantive violation of and a conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), in violation of 18 U.S.C. § 1961 et seq. She also asserted state-law claims for fraud, civil conspiracy to defraud, breach of contract, and injunctive relief. Defendants moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Beter’s amended complaint for failure to state a claim. Beter cross-moved for leave to amend the complaint. The district court dismissed the complaint and found amendment to be futile because (1) Beter’s failure to allege a cognizable injury under RICO precluded her having standing to assert RICO claims, (2) she had failed to allege the existence of a RICO enterprise, and (3) her RICO and state-law claims were time-barred and, in any event, failed on the merits. Beter now appeals. We assume the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, which we reference only as necessary to explain our decision to affirm.


“We review de novo the dismissal of a complaint for failure to state a claim upon which relief can be granted.” Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011). In deciding a motion to dismiss we must “accept[ ] all factual allegations in the complaint as true, and draw[ ] all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss, a complaint must allege facts sufficient “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “[M]ere conclusory statements,” Id., will not suffice: the “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We may affirm on any ground that finds support in the record. See, e.g., Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006) (“[W]e are free to affirm a decision on any grounds supported in the record, even if it is not one on which the trial court relied.”).


In both her principal and reply briefs on appeal, Beter fails to present an intelligible argument challenging any aspect of the district court’s dismissal of her claims. Consequently, Beter has waived any appeal as to the claims she raised in the district court. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”). On that basis, we will affirm the judgment of the district court.


*2 Beter’s briefs reveal another problem with her appeal—it is patently frivolous. Rather than articulating good-faith legal arguments in Appellant’s principal and reply briefs, Beter’s counsel offered a largely first-person, stream-of-consciousness account about the “me too” movement, the financial disadvantages presented when an individual sues a large corporation, and the importance of eliminating bullying. Not a single one of those topics bears even slightly on the district court’s grounds for dismissal of the complaint: (1) Beter’s failure to allege a cognizable injury under RICO, which prevented Beter from having standing to assert RICO claims, (2) her failure to allege the existence of a RICO enterprise, and (3) Beter’s state-law claims were time-barred and meritless.


This is not the first time Beter’s counsel has engaged in such conduct. See Cortes v. 21st Century Fox America, Inc., 751 F. App’x. 69, 73 (2d Cir. 2018) (summary order) (ordering counsel to show cause as to why he should not be sanctioned for filing a “patently frivolous” appeal); Charles v. Levitt, 716 F. App’x. 18, 20 (2d Cir. 2017) (summary order) (affirming the district court’s imposition of a $ 1000 sanction against Beter’s counsel for filing a complaint “shot-through with plainly irrelevant, absurd, and/or scurrilous statements.”)


We conclude that Beter’s appeal was “brought without the slightest chance of success,” and thus, it should not have been brought at all. Gallop, 642 F.3d at 370 (internal quotation marks omitted). Pursuant to Federal Rule of Appellate Procedure 38 we may, nostra sponte, “award just damages and single or double costs to the appellee” so long as the parties are afforded notice and provided with a “reasonable opportunity to respond.”

Accordingly, because we find this appeal to be frivolous, we hereby ORDER Beter’s counsel, Jay A. Sanchez-Dorta, to show cause within 30 days why he should not be referred to the Attorney Grievance and Discipline Committee of this Court and, in addition, be ordered to pay damages and costs.


The judgment of the district court is AFFIRMED.

Share this article:


Recent Posts