Goldman v. Barrett

• Court: Court of Appeals for the Second Circuit
• Decided: September 10, 2020
• Docket: 19-3443-cv
• Status: Unpublished

Opinion

19-3443-cv Goldman v. Barrett

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of September, two thousand twenty.

Present: DEBRA ANN LIVINGSTON, Chief Judge, JOHN M. WALKER, JR., DENNIS JACOBS, Circuit Judges. _____________________________________

DR. ROBERT M. GOLDMAN, DR. RONALD KLATZ,

Plaintiffs-Appellants,

v. 19-3443-cv

DR. STEPHEN J. BARRETT,

Defendant-Appellee,

QUACKWATCH, INC.

Defendant. _____________________________________

For Plaintiffs-Appellants: SUSAN B. EGAN, Egan Law Firm LLC, New York, N.Y.

For Defendant-Appellee: CHARLES A. MICHAEL, Steptoe & Johnson LLP, New York, N.Y.

1 Appeal from a judgment of the United States District Court for the Southern District of

New York (Gardephe, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-Appellants Robert M. Goldman (“Goldman”) and Ronald Klatz (“Klatz”) appeal

from a September 20, 2019 order imposing sanctions on their counsel, Wesley Paul (“Paul”).

Goldman and Klatz are the co-founders of the American Academy of Anti-Aging Medicine.

They sued Stephen Barrett (“Barrett”) over an allegedly defamatory article he posted on the

website Quackwatch noting the outcome of a disciplinary proceeding the Illinois Department of

Professional Regulation had initiated against them. After the district court dismissed their

original complaint, Goldman and Katz filed an amended complaint newly alleging that Barrett

made defamatory statements to Chinese and Malaysian government officials, causing those

officials to deny Goldman and Klatz approval to pursue business opportunities in those countries. 1

Barrett told Goldman and Klatz that these new allegations were false. To that end, he provided

Goldman and Klatz with telephone records tending to show he had not made or received any calls

with any numbers in China or Malaysia. When Goldman and Klatz declined to withdraw the new

allegations, Barrett moved for sanctions under Fed. R. Civ. P. 11, arguing that the new allegations

lacked factual support. The district court granted the motion and imposed a sanction of $10,000

on Paul. Goldman and Klatz appeal that order. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

* * *

1 Barrett subsequently moved to dismiss the amended complaint. The district court granted his motion and this Court affirmed by summary order. See Goldman v. Barrett, 733 Fed. App’x 568 (2d Cir. 2018).

2 In their amended complaint, Goldman and Klatz described work they had undertaken to

expand their anti-aging business into China (“the China Project”) and Malaysia (“the Malaysia

Project”). They alleged that Barrett sabotaged efforts to obtain government approvals by making

false and defamatory statements about them to Chinese and Malaysian government officials. As

to the China Project, Goldman and Klatz alleged that Barrett told Chinese officials that Goldman

and Klatz “had violated numerous U.S. laws,” “would likely be criminally prosecuted,” “had tried

to silence Dr. Barrett by using physical force and other intimidation tactics,” and “were under

further indictment by other countries for distributing drugs to foreign nations,” among other things.

Joint App’x at A69–A70. Goldman and Klatz alleged that as a result of these statements, Chinese

authorities canceled the China Project. The amended complaint also alleged “it is likely

Defendant Barrett had a similar conversation with Malaysian officials regarding the Malaysia

Project which caused the consulting arrangement to be terminated.” Id. at A71.

In litigating the sanctions motion, Goldman and Klatz revealed the basis for these

allegations. Goldman submitted a declaration stating that a politically connected colleague in

China, Stephanie Kuo (“Kuo”), had informed him and Klatz that “the likely reason for [the China

Project’s] rejection[] focused on concerns that resulted from the [Quackwatch] Article and

communications that the government likely had with Dr. Barrett during diligence.” Id. at A358.

Goldman further stated that he believed “the Article and Dr. Barrett’s influence also similarly

caused the cessation” of the Malaysia Project. Id.

Paul also submitted a declaration in support of the opposition to the sanctions motion

stating that he communicated with Kuo “at various points in late 2015 and 2016” using the app

Weixin (also known as WeChat). Id. at A337. He stated that “Kuo informed [him] of the facts

relating to the termination of various joint venture license[s] . . . which were generally described

3 in the Amended Complaint” and that he “had no substantial reason to doubt the statements made”

by Kuo. Id. He believed that to corroborate Kuo’s claims “the Case would need to proceed to

the discovery stage and that information requests would need to comply with applicable

international treaties (e.g. Hague Evidence Request).” Id.

This Court reviews a Rule 11 sanctions order for abuse of discretion. Perez v. Posse

Comitatus, 373 F.3d 321, 326 (2d Cir. 2004). “A district court has abused its discretion if it based

its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or

rendered a decision that cannot be located within the range of permissible decisions.” In re Sims,

534 F.3d 117, 132 (2d Cir. 2008) (citations, alteration, and internal quotation marks omitted).

Goldman and Klatz argue that the district court erred in finding that the amended complaint

violated Rule 11 and also in imposing a sanction of $10,000. On both counts, we disagree.

Under Rule 11, an attorney has an obligation to file only papers that have a basis in fact.

By signing a pleading, an attorney certifies that its “factual contentions have evidentiary support

or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity

for further investigation or discovery.” Fed. R. Civ. P. 11(b)(3). An attorney who files a paper

that no competent attorney could believe, after reasonable inquiry, is well-grounded in fact violates

Rule 11. Kropelnicki v. Siegel, 290 F.3d 118, 131 (2d Cir. 2002). As such, every attorney owes

a duty to conduct a pre-litigation inquiry into the viability of a pleading that is objectively

reasonable under the circumstances. O’Malley v. New York City Transit Auth., 896 F.2d 704,

706 (2d Cir. 1990). Under the circumstances indicated by the record below, the district court did

not abuse its discretion in finding that Paul failed to make a reasonable pre-filing inquiry into the

bases for the China Project and Malaysia Project allegations.

4 First, Paul’s reliance on Goldman and Kuo’s insinuations about Barrett’s conduct was

unreasonable. Attorneys may, when reasonable, rely on what their clients tell them to support a

claim. Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1329–30 (2d Cir. 1995); Calloway v.

Marvel Ent. Grp., 854 F.2d 1452, 1470 (2d Cir. 1988), rev’d on other grounds, Pavelic & LeFlore

v. Marvel Ent. Grp., 493 U.S. 120 (1989). However, by necessary inference, an attorney may not

base an allegation solely on a client’s representation if it is objectively unreasonable to believe that

the representation could support the allegation.

The district court did not abuse its discretion in concluding that Goldman and Kuo’s

statements did not reasonably support the specific allegations about what Barrett said to the

Chinese officials. Goldman’s statement that Kuo believed Barrett’s interference was “likely”

does not support the complaint’s specific allegations of what Barrett said. As the district court

noted, “speculation that conversations may have taken place . . . provides no support” for

allegations as to the content of those conversations. Joint App’x at A387. And even though

Paul declared that Kuo informed him of the “facts . . . generally described in the Amended

Complaint,” the district court did not abuse its discretion in concluding that Paul’s failure to

disclose or summarize the actual conversations between him and Kuo “strongly suggests that the

factual allegations lack evidentiary support.” Id. at A387–A388 (alterations, internal quotation

marks, and citation omitted); cf. Calloway, 854 F.2d at 1471 (finding an attorney’s failure to file

an affidavit documenting his pre-filing inquiry suggestive that no such inquiry took place).

The district court’s conclusion that the record failed to make out sufficient support for the

Malaysia Project allegations follows a fortiori. In support of the allegation that it was “likely . .

. Barrett had a similar conversation with Malaysian officials,” Joint App’x at A71, is only

Goldman’s declaration, which states his belief that “the Article and Dr. Barrett’s influence also

5 similarly caused the cessation” of the Malaysia Project, Joint App’x at A358. The district court

did not abuse its discretion in finding that Goldman’s speculation was insufficient to provide

reasonable factual support for the amended complaint’s specific allegation.

Second, Paul was not entitled to rely on discovery to justify bringing claims with no factual

basis. An attorney may use discovery to bolster evidence. See Fed. R. Civ. P. 11(b)(3)

(requiring that “factual contentions have evidentiary support or, if specifically so identified, will

likely have evidentiary support after a reasonable opportunity for further investigation or

discovery”); Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment (“[S]ometimes a

litigant may have good reason to believe that a fact is true or false but may need discovery . . . to

gather and confirm the evidentiary basis for the allegation.”). However, as the advisory

committee note makes clear, having “good reason” to believe the truth of an allegation is still a

threshold requirement of filing a paper. To that end, an attorney may not rely on discovery to

manufacture a claim that lacks factual support in the first instance. Id. (“Tolerance of factual

contentions in initial pleadings by plaintiffs or defendants when specifically identified as made on

information and belief does not relieve litigants from the obligation to conduct an appropriate

investigation into the facts that is reasonable under the circumstances; it is not a license to join

parties, make claims, or present defenses without any factual basis or justification.”).

On appeal, Goldman and Klatz press that Kuo refused to “reveal names and details

regarding the decisions of the Chinese governmental authorities at issue unless the information

was exchanged in accordance with [Chinese] law” and “international process.” Appellants’ Br.

11, 13–14. Paul concluded that it would be impossible to use the applicable international

discovery devices until after the complaint had been filed. Id. at 12. However, Paul’s

confidence that “substantiation . . . would ensue” upon discovery, id. at 13, did not relieve him of

6 his Rule 11 obligation to include only factually supported allegations in the complaint. Nor did

it avail him of Rule 11’s allowance for claims that “will likely have evidentiary support after a

reasonable opportunity for further investigation or discovery” because, as discussed above, the

district court concluded he lacked good reason to believe the China Project and Malaysia Project

allegations were true when he filed the complaint. As such, Paul could not have reasonably

thought it “likely” under Rule 11 that factual support would be forthcoming with discovery. See

Fed. R. Civ. P. 11(b)(3). 2

We also conclude that the district court did not abuse its discretion in imposing a sanction

of $10,000 on Paul. If a party violates Rule 11, the district court “may impose an appropriate

sanction.” Fed. R. Civ. P. 11(c)(1). That sanction may be “an order directing payment to the

movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from

the violation.” Fed. R. Civ. P. 11(c)(4). “Rule 11 sanctions are often punitive or aimed at

deterrence.” Cooper v. Salomon Bros. Inc., 1 F.3d 82, 85 (2d Cir. 1993). However, any

monetary sanction “must be limited to what suffices to deter repetition of the conduct or

comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4).

Despite Goldman and Klatz’s assertion to the contrary, the district court had ample basis

to impose the monetary sanction it chose. See generally Fed. R. Civ. P. 11 advisory committee’s

note to 1993 amendment (listing factors courts may consider in setting an appropriate sanction). 3

2 Even if these allegations were within Rule 11’s allowance for claims requiring corroboration by discovery, Goldman and Klatz did not comply with the Rule’s requirement that such allegations be “specifically so identified.” Fed. R. Civ. P. 11(b)(3). Paragraphs 49–54 of the amended complaint, which contain the relevant allegations regarding the China Project, were not prefaced as being made on information and belief, and contain no “specific[]” reference to the need for additional factual support from discovery. 3 These factors are “[w]hether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended

7 Among other things, it found that the improper allegations infected the entire pleading. Second,

the “responsible person” was “trained in the law.” See Fed. R. Civ. P. 11 advisory committee’s

note to 1993 amendment. And third, the district court took full account of what sanction would

fulfill Rule 11’s deterrence goal in light of Paul’s financial situation.

Moreover, the district court’s determination of the appropriate sanction was measured and

reasonable, consistent with its obligation to impose sanctions with discretion. Even after

excluding the components of Barrett’s requested sanction it viewed as impermissible — the cost

of the appeal, the cost of briefing the motion to dismiss the amended complaint, and a proposed

punitive sanction — the district court still reduced the sanction by two-thirds on account of Paul’s

financial situation. In short, the district court did not abuse its discretion in imposing a sanction

of $10,000.

We have considered Goldman and Klatz’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants.” Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment.