GERALD ALSTON v. STANLEY SPIEGEL
No. 20-1435
United States Court of Appeals For the First Circuit
April 6, 2021
IN RE APPEAL OF BROOKS A. AMES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O‘Toole, Jr., U.S. District Judge] [Hon. M. Page Kelley, U.S. Magistrate Judge]
Before Lynch and Selya, Circuit Judges, and Laplante,* District Judge.
Brooks A. Ames, pro se, for appellant.
Naomi R. Shatz and Martin R. Rosenthal, with whom David Duncan and Zalkind Duncan & Bernstein LLP were on brief, for appellee.
April 6, 2021
* Of the District of New Hampshire, sitting by designation.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the case. Ames is a Massachusetts lawyer who represents Gerald Alston, a black man who formerly worked as a firefighter. On December 1, 2015, Ames brought suit on Alston‘s behalf against a coterie of defendants, including the town of Brookline, Massachusetts (the Town), the Town‘s Board of Selectmen (the Board), and certain individuals affiliated with the Town (among them, members of the Board, the Town‘s counsel, and its human resources director). Of particular pertinence for present purposes, Ames named Stanley Spiegel as one of the defendants.
The complaint alleged that Alston‘s civil rights had been infringed in violation of
The complaint then alleged that the letter, which “attacked Mr. Alston‘s courage
In December of 2014 — according to the complaint — the Board retaliated against Alston for publicly protesting his treatment after he had reported a racial slur uttered by a superior officer. Relatedly, the complaint alleged that the Town leaked Alston‘s personnel file to Spiegel and others in an effort to “smear” Alston and “undermine his support in the community.” At a public meeting, Spiegel allegedly stated that he had access to Alston‘s personnel file in his capacity as a Town Meeting member. He also allegedly told a person wearing an “I support Gerald Alston” sticker that she would not support Alston if she knew the “real story” contained in Alston‘s personnel file. In the same conversation, Spiegel allegedly represented that he was speaking “on behalf of the Town.” Spiegel also claimed (falsely, according to the complaint) that two black firefighters had told him that they did not support Alston.
Both the Town and the Board filed motions to dismiss. See
After hearing arguments on Spiegel‘s motion to dismiss, the magistrate judge recommended dismissing the claims against him. In her report and recommendation (the 2016 R&R), she advised the district court to dismiss the suit against Spiegel with prejudice for failure to state a claim upon which relief can be granted.
Importantly, the 2016 R&R explained in detail the legal requirements for each of Alston‘s claims against Spiegel. It also sent up a red flag, warning that:
Counsel should be sure when filing another complaint that there are allegations sufficient to make out any asserted claims and that he plainly states them with regard to particular defendants. By signing the pleading, counsel is certifying his belief that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous [legal] argument . . . .”
Fed. R. Civ. P. 11(b)(2) .
Despite this warning, the 2016 R&R did not address Spiegel‘s motion for sanctions.
Ames proceeded to file a second amended complaint (the SAC) on Alston‘s behalf. The SAC added a few new allegations with respect to Spiegel. It asserted, in a conclusory fashion, that “Spiegel violated Mr. Alston‘s rights by enforcing the [discriminatory] Policy in concert with the Town.” It also asserted that “until named as a defendant in this lawsuit,” Spiegel had acted as an “unofficial surrogate” for the Board by “defending [its] conduct publicly and attacking perceived and actual critics of the Board and the Town.” For good measure, the SAC asserted that Spiegel was “frequently in consultation with individual members of the Board.”
The SAC also purported to clarify Spiegel‘s handling of the letter to the editor and his confrontation with the Alston supporter. It alleged that, in the email in which Spiegel distributed the letter, he directed Town Meeting members to a quotation from Selectwoman Daly that had appeared in the local newspaper which “cautioned about a rush to judgment before more facts about [Alston‘s case] could be made public.” According to the SAC, Spiegel noted that he had distributed the letter for “some additional insight” and expressed the view that Town Meeting members ought not to attack the Town based solely on Alston‘s side of the story. As a final shot, the SAC alleged that Spiegel became “extremely agitated” when he was questioned about his statements to the Alston supporter, put his face close to hers, raised his voice, shouted “I‘m disgusted,” and ended the conversation.
Spiegel again moved both to dismiss and for sanctions. The magistrate judge, unswayed by the added allegations, continued to recommend that the district court dismiss the claims against Spiegel with prejudice. In her report and recommendation (the 2017 R&R), she concluded that Alston and his attorney had “largely ignored this court‘s earlier findings as they pertain to defendant Spiegel, and simply recycled portions of the first amended complaint with cosmetic changes.”
Alston objected to this recommendation, but the district court adopted it and dismissed with prejudice the claims against Spiegel. See Alston v. Town of Brookline (Alston II), No. 15-13987, 2017 WL 1536213, at *1 (D. Mass. Apr. 26, 2017). Despite being “provided an opportunity to cure the deficiencies of the first amended complaint,” the court wrote, Alston had failed. Id.
The magistrate judge subsequently held a hearing on Spiegel‘s motion for sanctions and ruled that sanctions were in order. As part of her rationale, the magistrate judge stated that “the minor changes made from the first to the second amended complaint did not make any difference in the viability of the claims against Spiegel.” She recognized that the district court “reasonably gave [Alston] the opportunity to replead against Spiegel,” but declared that such an opportunity was not “a license simply to file a frivolous case for the second time.” Ames objected, but the district court agreed that a sanction was warranted. See Alston v. Town of Brookline (Alston III), No. 15-13987, 2017 WL 3387132, at *1 (D. Mass. Aug. 7, 2017). It ordered Ames to pay $20,396.61 as a sanction, concluding that such a dollar amount would deter
Meanwhile, Alston had appealed the dismissal of his claims against Spiegel. While the instant appeal was pending, we affirmed the dismissal of Alston‘s claims against Spiegel. See Alston v. Spiegel, 988 F.3d 564, 569 (1st Cir. 2021).
II. ANALYSIS
Ames complains that the district court blundered by “unfairly” levying a sanction under circumstances that could “chill the development of civil rights law.” He offers three contentions in support of this plaint.2 First, he contends that Alston‘s claims against Spiegel had a sufficient factual basis to avoid being classified as frivolous. To buttress this contention, he insists that because the district court dismissed the FAC without prejudice and allowed Alston to re-plead as to Spiegel, the claims could not have been sanctionable. Second, he contends that the claims are anchored in a nonfrivolous argument for the extension of existing law. Third, he contends that, in sanctioning him for re-pleading the claims against Spiegel, the district court treated the magistrate judge‘s warning (in the 2016 R&R) not merely as a red flag but, rather, as “effectively immuniz[ing]” the magistrate judge‘s appraisal of those claims from appeal.
It is apodictic that we review a district court‘s decision to impose Rule 11 sanctions for abuse of discretion. See Protective Life Ins. Co. v. Dignity Viatical Settlement Partners, L.P., 171 F.3d 52, 56 (1st Cir. 1999); Navarro-Ayala v. Nunez, 968 F.2d 1421, 1425 (1st Cir. 1992). We have said that an abuse of discretion “occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them.” Anderson v. Beatrice Foods Co., 900 F.2d 388, 394 (1st Cir. 1990) (quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1081 (1st Cir. 1989)). Mindful that sanctions determinations are context-dependent, “our review is deferential-but not reflexively acquiescent.” Protective Life, 171 F.3d at 56. Consequently, the sanctioned party “bears a formidable burden” when attempting to show that the sanctioning court abused its discretion. Navarro-Ayala, 968 F.2d at 1425.
Before addressing Ames‘s contentions, some stage-setting is useful. Under Rule 11, a court may impose sanctions on a lawyer “for advocating a frivolous position, pursuing an unfounded claim, or filing a lawsuit for some improper purpose.” CQ Int‘l Co. v. Rochem Int‘l, Inc., USA, 659 F.3d 53, 60 (1st Cir. 2011). A claim is frivolous when it is “either not well-grounded in fact or unwarranted by existing law or a good faith argument for an extension, modification or reversal of existing law.” Cruz v. Savage, 896 F.2d 626, 632 (1st Cir. 1990). In determining whether a lawyer has offended Rule 11, a court generally must use an objective standard, asking what is reasonable under the circumstances. See id. at 631. Factors to be considered include “the complexity of the subject matter, the party‘s familiarity with it, the time available for inquiry, and the ease (or difficulty) of access to the requisite information.” Navarro-Ayala, 968 F.2d at 1425. Typically, “some degree of fault is required, but the fault need not be a wicked or subjectively reckless state of mind; rather, an individual ‘must, at the
It is against this backdrop that we address Ames‘s contentions.
Ames seeks to find safe harbor in the district court‘s decision to dismiss the FAC without prejudice and its concomitant declination to impose sanctions at that time. In Ames‘s view, the ultimate dismissal of Alston‘s claims against Spiegel “could not, by itself, warrant sanctions unless the claims were frivolous in the first place.” This is particularly true, Ames suggests, because he “did not disregard a statute or clear First Circuit or Supreme Court precedent.”
We agree with Ames‘s foundational premise: “[t]he mere fact that a claim ultimately proves unavailing, without more, cannot support the imposition of Rule 11 sanctions.” Protective Life, 171 F.3d at 58. Here, however, the case for sanctions goes well beyond the mere fact of dismissal.
In this instance, the key question is not whether Ames‘s pleading of Alston‘s claims disregarded a statute or circuit precedent directly on point. Rather, it is whether any reasonable attorney, looking at the additional matters pleaded in the SAC, “would have believed that he had any evidence to support [his] claim[s]” against Spiegel. Nyer v. Winterthur Int‘l, 290 F.3d 456, 461 (1st Cir. 2002). The district court answered this question in the negative, and so do we.
The allegations in the FAC, insofar as they pertained to Spiegel, chronicled only two events: his distribution of copies of the letter to the editor and his confrontation with the Alston supporter. In the 2016 R&R, the magistrate judge concluded that the facts pleaded in the FAC concerning these events “failed to state a claim against Spiegel under any actionable legal theory.” (Emphasis in original). The magistrate judge further concluded that the FAC did not allege any actionable harm resulting from either event. After all, the letter had previously been published, and Spiegel‘s comments to the Alston supporter, while unflattering to Alston, were non-specific and had no bearing on Alston‘s situation. Nor did the FAC suggest that either of those two events were implicated in Alston‘s employment discrimination or retaliation claims. In point of fact, the claims against Spiegel, as pleaded in the FAC, were so wide off the mark that the 2016 R&R warned that the “failure to state a claim would not be solved by clearer pleading.”
Notwithstanding this explicit warning, Ames elected to try again in the SAC. As relevant here, that complaint added nothing of consequence.3 Nothing in the SAC meaningfully amplified Ames‘s earlier description of Spiegel‘s conduct and, thus, the SAC failed to transmogrify such conduct into actionable misconduct. What is
The SAC‘s shortcomings do not end there. As to Spiegel, the SAC blithely ignored clear, widely available pleading requirements for discrimination and retaliation claims. Take, for example, the claims under
The claims under
Pointing to Alston‘s conspiracy claim under
The district court made pellucid that it had no wish to cut off a litigant‘s rights prematurely. In this spirit, the court thought it “fair” to give Alston another bite at the cherry. Alston I, 2016 WL 5745091, at *1. In its brief grant of leave to amend, the court did not (either expressly or by implication) adopt Alston‘s objection. Nor did the court in any way, shape, or form suggest that it found the claims against Spiegel to be nonfrivolous. It simply gave Alston (through Ames) an opportunity to re-plead if he saw fit.
Seen in this light, Ames‘s argument crumbles. Even though a district court deems a pleaded claim frivolous, it may nonetheless give the pleader a chance to re-plead and add facts to an amended complaint in order to breathe life into the claim. But leave to amend does not immunize an attorney who elects to amend despite the absence of any nonfrivolous support for the amended pleading. When — as in this case — the pleader avails himself of the opportunity to amend and files a new pleading, he does so at his peril and under the watchful eye of Rule 11. In this respect, civil rights cases are no different than other cases, and requiring an attorney to abide by the strictures of Rule 11 does not impermissibly chill his client‘s rights. See Silva v. Witschen, 19 F.3d 725, 733 n.15 (1st Cir. 1994) (“[W]e cannot agree that a groundless civil rights action is any less appropriate a candidate for Rule 11 sanctions than other groundless actions.“).
Ames mounts another line of defense, distilled from the text of Rule 11(b). He notes that the rule provides, in pertinent part, that a party‘s claims may avoid sanctions if they are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law.”
In Ray — a race-discrimination case — the district court held that an employer‘s dissemination of “severely damaging information” about the plaintiff-employee to a media website could support a retaliation claim. Id. at 360. There, the Equal Employment Opportunity Commission (EEOC) had concluded that there was probable cause to believe that the defendant (a law firm) had retaliated against Ray (a lawyer employed as an associate) for filing a charge of discrimination with the EEOC. See id. at 352. Ray sent the EEOC‘s findings to a number of people, including then-Dean Martha Minow of Harvard Law School. See id. An online publication learned of Ray‘s correspondence with Dean Minow and reached out to the defendant for comment. See id. In response, the defendant transmitted Ray‘s EEOC determination letter to the website, which posted it online. See id. The letter contained “a recitation of evidence, including detailed information about Ray‘s performance reviews and a description of the internal investigation of Ray and his reprimand
In denying the defendant‘s motion for summary judgment on Ray‘s retaliation claim, the district court stated in dictum that “[t]he threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.” Id. at 360. Attempting to draw an analogy, Ames argues that Spiegel made such a threat when he told an Alston supporter that she would not back Alston if she knew the “real story” contained in his personnel file. This attempted analogy falls flat.
As we observed when we rejected Alston‘s appeal, “Spiegel was neither Alston‘s employer nor a person alleged to be acting in the employer‘s stead.”5 Spiegel, 988 F.3d at 576. And, moreover, the SAC did not allege what the information in Alston‘s personnel file concerned, nor did it allege that any injurious information would come to light at Spiegel‘s direction. Finally, the SAC never alleged a threat.
The short of it is that Spiegel was not Alston‘s employer, never disseminated any negative information about Alston from Alston‘s personnel file, and did not threaten any such dissemination. These distinctions create so wide a gulf between Ray and the case at hand as to puncture Ames‘s boast that Alston‘s claims against Spiegel are based on a good-faith argument for an extension of Ray. Put another way, the allegations contained in the SAC cannot reasonably be viewed as making a “nonfrivolous argument for extending” existing case law.
We need not linger long over Ames‘s assertion that he cannot be sanctioned for re-pleading the claims in the SAC after their original dismissal. Otherwise, he laments, “[f]ew parties, even private attorney generals (or their counsel) enforcing civil rights laws, are likely to risk payment of up to $20,000 in sanctions to preserve appellate rights.” This assertion comprises more cry than wool. It boils down to a claim that, by giving heavy emphasis to the magistrate judge‘s warning that Alston‘s claims against Spiegel “would not be solved by clearer pleading,” the district court “effectively immuniz[ed]” the magistrate judge‘s appraisal from appeal.
On this point, Ames relies namely on our decision in Hill v. State Street Corp., 794 F.3d 227 (1st Cir. 2015). Specifically, he embraces the Hill court‘s admonition that it is important to “protect[] against the possibility that a district court could effectively immunize its decisions from review by declaring any appeal frivolous.” Id. at 230.
Ames‘s reliance on Hill is mislaid. The facts of Hill are quite different — that case involved a requirement for an exorbitant bond as an adjunct to the right to appeal, see id. at 229 — and the case is readily distinguishable. More importantly, the claims against Spiegel are frivolous not because the magistrate judge predicted as much in the 2016 R&R but because — despite having had the benefit of a warning that the allegations against Spiegel failed to comply with the most basic of
The SAC itself is a testament to the frivolousness of those claims. The meager facts that Alston alleged with respect to Spiegel were disconnected from the elements of the claims that he asserted — so much so that an objectively reasonable lawyer, mulling those facts, would necessarily have concluded that Alston could not offer any sufficient factual grounding for his claims against Spiegel. In addition, the legal regime that the pleaded facts sought to invoke was sufficiently clear that an objectively reasonable lawyer, taking stock of those facts, would necessarily have concluded that Alston had no nonfrivolous basis in law for his claims. These conclusions in no way depend either upon the magistrate judge‘s earlier appraisal or upon her warning — but that warning put Ames on notice that reiterating the claims, without any meaningful augmentation, would be culpably careless and, thus, land him in legal quicksand. See, e.g., Henderson v. Dep‘t of Pub. Safety & Corr., 901 F.2d 1288, 1294-95 (5th Cir. 1990); Collins v. Walden, 834 F.2d 961, 965-66 (11th Cir. 1987).
To say more would be to paint the lily. We conclude that the district court acted well within the ambit of its discretion when it found that Ames — even on his third try and in the face of explicit warnings — ignored obvious factual gaps and clear legal requirements in naming Spiegel as a defendant in the SAC. The ensuing sanction was adequately supported both in the facts and in the law.
III. CONCLUSION
We respect a lawyer‘s zealous advocacy for his client. But that zeal, in turn, must respect the boundaries of appropriate advocacy. Here, Ames persisted in pursuing claims against Spiegel without an adequate basis in fact or in law despite a pointed warning from the magistrate judge. When — as in this case — zealous advocacy is based on nothing more than a wing and a prayer, it is sanctionable.
We need go no further. For the reasons elucidated above, the sanctions order is
Affirmed. Costs to appellee.