Harb v. Gallagher

131 F.R.D. 381, 1990 U.S. Dist. LEXIS 6983, 1990 WL 83689
CourtDistrict Court, S.D. New York
DecidedMay 16, 1990
DocketNo. 87 Civ. 2907 (RO)
StatusPublished
Cited by10 cases

This text of 131 F.R.D. 381 (Harb v. Gallagher) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harb v. Gallagher, 131 F.R.D. 381, 1990 U.S. Dist. LEXIS 6983, 1990 WL 83689 (S.D.N.Y. 1990).

Opinion

ORDER

OWEN, District Judge:

The Report and Recommendation of Magistrate Tyler, dated March 12, 1990, is hereby adopted and made the order of this Court. Judgment shall be entered in favor of defendant George “Jerry” Gallagher, as against plaintiffs, Fred Harb, Mildred Harb and Robert R. Ranni, Esq., jointly and severally, for attorneys' fees and costs, in the sum of $19,943.40. Any purported indemnification agreement between the plaintiffs is declared illegal and unenforceable, as violative of the spirit, intent and purposes of Rule 11, Fed.R.Civ.P.

So ordered.

REPORT AND RECOMMENDATION

JOEL J. TYLER, United States Magistrate.

Judge Owen, to whom this case is assigned, by “Endorsed Memorandum,” dated September 4, 1987 and filed September 10, 1987, referred the same to “Magistrate Tyler to hear and report” on the amount of costs and attorneys’ fees incurred by and to be awarded defendant, George “Jerry” Gallagher (“Gallagher”), pursuant to Rule 11, Fed.R.Civ.P. We also deem our responsibility to include the determination, in precise terms, as to who shall be liable for such costs and fees. The District Court Executive assigned the same to me on September 24, 1987. Pursuant to this referral, an Inquest was held on April 25, 1988, whereat Bernard M. Plum, Esq. (“Plum”), a partner in the firm of Proskauer, Rose, Goetz & Mendelsohn (“Proskauer Rose”), Allen I. Fagin, Esq. (“Fagin”), also a member of the Proskauer Rose firm, and Paul Salvatore (“Salvatore”), an associate at Proskauer Rose, testified, and at which twelve (12) exhibits were introduced in evidence on behalf of Gallagher and one (1) by plaintiffs’ counsel.

Based on the evidence and reasonable inferences drawn therefrom, I respectfully submit the following findings of fact, conclusions of law and recommendations.

BACKGROUND

On March 30, 1983 plaintiff, Fred Harb (“Harb”), accused of theft, was discharged by United Parcel Service, Inc. (“UPS”) from his job of 14 years. See UPS discharge letter, dated March 30, 1983, attached to Gallagher’s Exhibit (“Exh.”) 2. The following day, March 31, 1983, Gallagher, who, at the time, held a managerial [383]*383position at UPS, filed two criminal complaints against Harb with the Town of Clarkstown Police Department, charging him with Grand Larceny in the Third Degree (Penal Law § 155.30) and Petit Larceny (Penal Law § 155.25). See Verified Complaint at 115, and Exhs. B and C attached to the Complaint. Thereafter, on the basis of these charges, defendant Murray Jacobson, (“Jacobson”), the Town Justice of Clarkstown, issued a criminal summons which was served on Harb. See Complaint, at 1115, and Ex. F, attached to Complaint. Harb appeared, was arraigned and pled “not guilty” to the charges. See Complaint, at ¶ 16. After extended legal proceedings, a non-jury trial was held, and Harb was acquitted of all charges on the merits. See Complaint, at 1Í 23.

After Harb’s acquittal, he, joined by his wife, brought suit in our federal District Court on October 23, 1984 against, inter alia, UPS, Gallagher, various UPS officials and his representative union, alleging wrongful discharge, breach of the duty of fair representation, malicious prosecution, abuse of process, and loss of consortium. See Harb I Complaint, attached to Plum’s affidavit, sworn to May 6, 1987, (“Plum Affidavit I”), in turn, attached to Exh. 2, and Harb v. United Postal Service, Inc., 123 L.R.R.M. (BNA) 2968, 2970, 1985 WL 4850 (S.D.N.Y.1985), attached to Exh. 3. Summary Judgment was granted against the plaintiffs by The Honorable William C. Conner, U.S.D.J., who found the action was frivolous and, therefore, awarded costs and attorneys’ fees to the defendants. Harb v. United Postal Service, Inc., supra, at 2970, 2974, 1985 WL 4850 (Docket No. 84 Civ. 8430 (WCC)).

Undaunted, the Harbs, represented by Robert R. Ranni, Esq. (“Ranni”), the same attorney who advanced their cause in the ill-fated federal action, in November of 1986, filed suit in the New York State Supreme Court, Rockland County. Plaintiffs’ claims again arose out of the discharge of Fred Harb by UPS, and the subsequent criminal prosecution. See Complaint, at ¶¶ 3, 5-7, 25, 27-30, 34-36.

On April 29, 1987, Gallagher filed a petition for removal of the action, from the state Supreme Court to this federal court, pursuant to 28 U.S.C. § 1441. See Petition for Removal, at ¶ 2. Gallagher then moved for “an order pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure dismissing the complaint against defendant Gallagher on the grounds that the claims are barred by the doctrine of res judicata, and for an order pursuant to Rule 11 of the Federal Rules of Civil Procedure ordering plaintiffs and their attorney to pay Gallagher’s attorneys’ fees and costs for making this motion.” See Notice of Motion, filed May 7, 1987. Defendant Jacobson sought to have the action remanded to the state court, pursuant to 28 U.S.C. §§ 1441 and 1446, or, alternatively, to have the action against him severed and remanded to the state court, pursuant to 28 U.S.C. § 1441(c). See Notice of Cross-Motion, filed May 19, 1987. Plaintiffs sought to remand the action to state court, pursuant to 28 U.S.C. §§ 1441 and 1446. Plaintiffs did not present any opposition to the motion to dismiss. See Endorsed Memorandum, filed June 5, 1987.

Judge Owen, after oral argument, (see transcript dated May 29, 1987), found that the removal of the action as to defendant Gallagher was “proper” and retained jurisdiction over this claim. However, he “severed and remanded” the action against Jacobson, since he concluded that “no federal question exists.” Id. He did not address the motion made by Gallagher to dismiss on the basis of res judicata, allowing the Harbs an opportunity to answer. Id.

After the Harbs submitted papers in opposition to Gallagher’s motion to dismiss, Judge Owen, in a one page, above-mentioned, “Endorsed Memorandum,” filed September 10, 1987, concluded, in granting summary judgment to Gallagher, that “the essential facts and issues on which this action is predicated are identical to those asserted against defendant Gallagher in the Harb case dismissed by Judge Conner,” and that “the principal of res judicata bars relitigation of any claims that were or could have been litigated in the earlier suit.”

[384]*384Judge Owen then addressed the defendant’s Rule 11 motion for costs and attorneys’ fees incurred in the making of the motion to dismiss. Id.

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Bluebook (online)
131 F.R.D. 381, 1990 U.S. Dist. LEXIS 6983, 1990 WL 83689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harb-v-gallagher-nysd-1990.