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Appeals — Court of Appeals May, But Generally Will Not, Affirm on Other Grounds Supported by Record But Not Considered by District Court — Inherent Power Sanctions Should First Be Sought in Lower Court

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Zappulla v. Annucci, 2016 U.S. App. LEXIS 4089 (2d Cir. Mar. 4, 2016):

Plaintiff Guy Zappulla appeals from a summary judgment award in favor of defendants Anthony J. Annucci and Carl Koenigsmann on Zappulla's claims that his Eighth and Fourteenth Amendment rights were violated by inadequate medical treatment while in the custody of the New York State Department of Corrections and Community Supervision.1 The challenged award was based on a finding that Zappulla had failed adequately to exhaust administrative remedies under the Prison [*2]  Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), because he did not specifically name Annucci and Koenigsmann in his administrative complaint. See Zappulla v. Annucci, No. 11-CV-6733 (JMF), 2015 WL 925928, at *6-7 (S.D.N.Y. Mar. 4, 2015). The parties agree that this was error in light of established precedent. See Espinal v. Goord, 558 F.3d 119, 127 (2d Cir. 2009) ("Where New York's grievance procedures do not require prisoners to identify the individuals responsible for alleged misconduct, neither does the PLRA for exhaustion purposes."); see also Jones v. Bock, 549 U.S. 199, 218 (2007) (holding that PLRA does not itself require naming defendants, but requires only that necessary to exhaust under state procedures). Zappulla further seeks sanctions under 28 U.S.C. § 1927 for defendants' failure to alert the district court to controlling contrary authority on this point. Defendants nevertheless urge us to affirm on other grounds supported by the record.

1   Zappulla is serving a term of incarceration of 25 years to life for murder in the second degree and escape in the second degree. This conviction was secured on retrial, see People v. Zappulla, 103 A.D.3d 759, 959 N.Y.S.2d 538 (2013), after this court granted a writ of habeas corpus based on error in his initial murder trial, see Zappulla v. New York, 391 F.3d 462 (2d Cir. 2004).

While we are certainly authorized to do so, see Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997), we "generally 'will not review an issue the district court did not decide,'" Macey v. Carolina Cas. Ins. Co., 674 F.3d 125, 131 (2d Cir. 2010) (quoting Colavito v. N.Y. Organ Donor Network, Inc., 486 F.3d 78, 80 (2d Cir. 2007)). The district court not having addressed [*3]  the alternative grounds urged by defendants, we here vacate the summary judgment award based on the acknowledged Espinal error, and we remand the case for the district court to consider in the first instance alternative arguments for summary disposition. We further decline to decide in advance of the district court whether defendants should be sanctioned as Zappulla urges for arguing an exhaustion issue contrary to Espinal. "Our authority to impose sanctions is grounded, first and foremost, in our inherent power to control the proceedings that take place before this Court." Ransmeier v. Mariani, 718 F.3d 64, 68 (2d Cir. 2013). Because the alleged misconduct occurred before the district court, appellee should first move for sanctions in that court, which he can do on remand.

Accordingly, the judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.

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Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

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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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