Nesbitt v. USA CV-96-594-SD 04/21/97 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James M. Nesbitt III
v. Civil No. 96-594-SD
United States of America; Special Agent Gerald Graffam
O R D E R
This order addresses the issues raised by the defendants'
motion to dismiss (document 4) and plaintiff's motion to strike
the defendants' motion (document 12) .1
1. Background
This suit has been brought pursuant to the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et sea.; and
Bivens v. Six Unknown Narcotics Agents of the Bureau of
Narcotics, 403 U.S. 388 (1971). The plaintiff, James Nesbitt
III, seeks money damages for the alleged violation of his rights
to be free from false imprisonment, intentional and negligent
1Plaintiff also seeks the imposition of sanctions pursuant to Rule 11, Fed. R. Civ. P., specifically, an award of attorney fees and costs. infliction of emotional distress, and unreasonable search and
seizure.2
It appears that plaintiff originally brought suit against
defendant Graffam and a number of state law enforcement officers
in the Superior Court of Strafford County, New Hampshire.
Following removal to this court, he dismissed the claim against
Graffam without prejudice, and the action was then remanded to
the state court.
On remand, the state court entered summary judgment for the
majority of the remaining state defendants. Subseguently,
plaintiff dismissed with prejudice the remaining count of his
complaint against the surviving defendant. However, an appeal is
pending from the summary judgment order.
The instant motion of the defendants was filed on
February 28, 1997. Document 4. It claims that collateral
estoppel (arising from the summary judgment order in state court)
bars the action in this court against defendant Graffam, that
Graffam is entitled to gualified immunity, and that the complaint
was not properly served on Graffam. Id.
On March 20, 1997, plaintiff filed an objection to the
motion to dismiss, incorporating a reguest for stay of ruling on
2The genesis of this case is plaintiff's May 10, 1994, seizure for alleged drug dealing. No prosecution followed such arrest.
2 the motion until after April 11, 1997. Document 5.3 The court
granted this motion by order of March 31, 1997. Document 9.
On April 10, 1997, defendants filed their notice of
withdrawal of those portions of the dismissal motion grounded on
collateral estoppel. Document 11. Plaintiff, invoking Rule 11,
seeks to strike the remaining portions of the motion and claims
entitlement to sanctions in the nature of fees and costs.
Document 19.
2. Discussion
The court commences its analysis with abrief outline of
certain relevant portions of Rule 11.The purpose of Rule 11 is
to deter baseless filings in district court and thus streamline
the administration and procedure of federal courts. 2 M o o r e 's ,
supra, § 11.03 at 11-16. Amended in 1993 to remedy problems that
arose in the interpretation and application of the 1983
amendments, the revision placed greater constraints on the
imposition of sanctions, which was intended to reduce the number
of motions for sanctions presented to the court. Id. at 11-17.
Accordingly, the imposition of sanctions is no longer mandatory,
3Plaintiff's motion was grounded on the 21-day "safe harbor" provision of Rule 11(c)(1)(A), which immunizes litigants from Rule 11 sanction motions if they withdraw or correct the challenged paper before the sanctions motion is served. 2 M o o r e 's F e d e r a l P r a c t i c e § 11.22 [1] [b] , at 1139-40 (3d ed. 1997)
3 but, rather, is discretionary. Knipe v. Skinner, 19 F.3d 72, 78
(2d Cir. 1994); Anvanwu v. CBS, 887 F. Supp. 690, 694 (S.D.N.Y.
1995) .
The reasonableness of an attorney's investigation of the
facts and the law depends on the circumstances of the case. Rule
11(b), Fed. R. Civ. P. But no per se rule is created requiring
an attorney to research every defense potentially at issue. 2
M o o r e 's , supra, § 11.11[2] at 11-23. The standard of conduct is
objective, id., § 11.11[3] at 11-23, and a standard of
"frivolousness" for obvious lack of merit is generally applied,
id. § 11.11[5] at 11-25.
Sanctions are inappropriate if the challenged position is
supported by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of
new law. M o o r e 's , supra, § 11.11[7][b] at 11-29. They are also
inappropriate when there are differing interpretations of the law
or when contrary controlling authority is not obvious. Id. §
11.11[7] [c] at 11-30 .4
Apparently defendants originally relied on research that persuaded them that collateral estoppel could be applied when judgment entered, even though an appeal was later taken. This research differs from applicable New Hampshire law. However, the defendants' withdrawal of claims grounded on collateral estoppel moots any claims of sanctions grounded on their motion to dismiss.
4 Turning to the defendants' motion, the court finds that the
notice of withdrawal, fairly read, leaves pending at this stage
of the proceedings only the issue of whether service on defendant
Graffam was proper. Such service was had by certified mail
pursuant to Rule 4(1)(2), Fed. R. Civ. P.5
Unfortunately, as plaintiff has here invoked the Bivens
doctrine, he sues defendant Graffam in his individual rather than
his official capacity. Vaccaro v. Dobre, 81 F.3d 854, 857 (9th
Cir. 1996) (actions brought under Bivens can be maintained
against a defendant in his individual capacity only, and not in
his official capacity); Armstrong v. Sears, 33 F.3d 182, 186-87
(2d Cir. 1994) (same). Accordingly, service on defendant Graffam
should have been made pursuant to Rule 4(e),6 rather than Rule
5Rule 4(1)(2) prescribes that service upon an officer of the United States shall be made by serving the United States in accordance with Rule 4(1)(1) and sending a copy of the summons and complaint by registered or certified mail to the officer. Rule 4(1) (1) prescribes that service upon the United States shall be made by (1) delivering a copy of the summons and complaint to the United States Attorney for the district in which the action is brought or to specified designees of that United States Attorney, (2) sending copies thereof by registered or certified mail to the Attorney General of the United States, and (3) in certain cases, sending a copy of the summons and complaint by registered or certified mail to a specified nonparty officer or agency of the United States.
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Nesbitt v. USA CV-96-594-SD 04/21/97 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James M. Nesbitt III
v. Civil No. 96-594-SD
United States of America; Special Agent Gerald Graffam
O R D E R
This order addresses the issues raised by the defendants'
motion to dismiss (document 4) and plaintiff's motion to strike
the defendants' motion (document 12) .1
1. Background
This suit has been brought pursuant to the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et sea.; and
Bivens v. Six Unknown Narcotics Agents of the Bureau of
Narcotics, 403 U.S. 388 (1971). The plaintiff, James Nesbitt
III, seeks money damages for the alleged violation of his rights
to be free from false imprisonment, intentional and negligent
1Plaintiff also seeks the imposition of sanctions pursuant to Rule 11, Fed. R. Civ. P., specifically, an award of attorney fees and costs. infliction of emotional distress, and unreasonable search and
seizure.2
It appears that plaintiff originally brought suit against
defendant Graffam and a number of state law enforcement officers
in the Superior Court of Strafford County, New Hampshire.
Following removal to this court, he dismissed the claim against
Graffam without prejudice, and the action was then remanded to
the state court.
On remand, the state court entered summary judgment for the
majority of the remaining state defendants. Subseguently,
plaintiff dismissed with prejudice the remaining count of his
complaint against the surviving defendant. However, an appeal is
pending from the summary judgment order.
The instant motion of the defendants was filed on
February 28, 1997. Document 4. It claims that collateral
estoppel (arising from the summary judgment order in state court)
bars the action in this court against defendant Graffam, that
Graffam is entitled to gualified immunity, and that the complaint
was not properly served on Graffam. Id.
On March 20, 1997, plaintiff filed an objection to the
motion to dismiss, incorporating a reguest for stay of ruling on
2The genesis of this case is plaintiff's May 10, 1994, seizure for alleged drug dealing. No prosecution followed such arrest.
2 the motion until after April 11, 1997. Document 5.3 The court
granted this motion by order of March 31, 1997. Document 9.
On April 10, 1997, defendants filed their notice of
withdrawal of those portions of the dismissal motion grounded on
collateral estoppel. Document 11. Plaintiff, invoking Rule 11,
seeks to strike the remaining portions of the motion and claims
entitlement to sanctions in the nature of fees and costs.
Document 19.
2. Discussion
The court commences its analysis with abrief outline of
certain relevant portions of Rule 11.The purpose of Rule 11 is
to deter baseless filings in district court and thus streamline
the administration and procedure of federal courts. 2 M o o r e 's ,
supra, § 11.03 at 11-16. Amended in 1993 to remedy problems that
arose in the interpretation and application of the 1983
amendments, the revision placed greater constraints on the
imposition of sanctions, which was intended to reduce the number
of motions for sanctions presented to the court. Id. at 11-17.
Accordingly, the imposition of sanctions is no longer mandatory,
3Plaintiff's motion was grounded on the 21-day "safe harbor" provision of Rule 11(c)(1)(A), which immunizes litigants from Rule 11 sanction motions if they withdraw or correct the challenged paper before the sanctions motion is served. 2 M o o r e 's F e d e r a l P r a c t i c e § 11.22 [1] [b] , at 1139-40 (3d ed. 1997)
3 but, rather, is discretionary. Knipe v. Skinner, 19 F.3d 72, 78
(2d Cir. 1994); Anvanwu v. CBS, 887 F. Supp. 690, 694 (S.D.N.Y.
1995) .
The reasonableness of an attorney's investigation of the
facts and the law depends on the circumstances of the case. Rule
11(b), Fed. R. Civ. P. But no per se rule is created requiring
an attorney to research every defense potentially at issue. 2
M o o r e 's , supra, § 11.11[2] at 11-23. The standard of conduct is
objective, id., § 11.11[3] at 11-23, and a standard of
"frivolousness" for obvious lack of merit is generally applied,
id. § 11.11[5] at 11-25.
Sanctions are inappropriate if the challenged position is
supported by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of
new law. M o o r e 's , supra, § 11.11[7][b] at 11-29. They are also
inappropriate when there are differing interpretations of the law
or when contrary controlling authority is not obvious. Id. §
11.11[7] [c] at 11-30 .4
Apparently defendants originally relied on research that persuaded them that collateral estoppel could be applied when judgment entered, even though an appeal was later taken. This research differs from applicable New Hampshire law. However, the defendants' withdrawal of claims grounded on collateral estoppel moots any claims of sanctions grounded on their motion to dismiss.
4 Turning to the defendants' motion, the court finds that the
notice of withdrawal, fairly read, leaves pending at this stage
of the proceedings only the issue of whether service on defendant
Graffam was proper. Such service was had by certified mail
pursuant to Rule 4(1)(2), Fed. R. Civ. P.5
Unfortunately, as plaintiff has here invoked the Bivens
doctrine, he sues defendant Graffam in his individual rather than
his official capacity. Vaccaro v. Dobre, 81 F.3d 854, 857 (9th
Cir. 1996) (actions brought under Bivens can be maintained
against a defendant in his individual capacity only, and not in
his official capacity); Armstrong v. Sears, 33 F.3d 182, 186-87
(2d Cir. 1994) (same). Accordingly, service on defendant Graffam
should have been made pursuant to Rule 4(e),6 rather than Rule
5Rule 4(1)(2) prescribes that service upon an officer of the United States shall be made by serving the United States in accordance with Rule 4(1)(1) and sending a copy of the summons and complaint by registered or certified mail to the officer. Rule 4(1) (1) prescribes that service upon the United States shall be made by (1) delivering a copy of the summons and complaint to the United States Attorney for the district in which the action is brought or to specified designees of that United States Attorney, (2) sending copies thereof by registered or certified mail to the Attorney General of the United States, and (3) in certain cases, sending a copy of the summons and complaint by registered or certified mail to a specified nonparty officer or agency of the United States.
6Rule 4(e) authorizes service upon an individual (1) pursuant to the law of the state in which the district court is located or in which service is effected, (2) by delivery of the summons and complaint personally to the defendant, (3) by leaving copies thereof at the defendant's usual place of abode with a
5 4(i)(2). See 1 M o o r e 's F e d e r a l Practice § 4.56[3] at 4-76-77 (3d ed.
1997). It follows that the Bivens claim against defendant
Graffam has not been properly served upon him, and accordingly
that action is dismissed without prejudice.
3. Conclusion
For the reasons hereinabove outlined, defendants having
withdrawn their claims of collateral estoppel and gualified
immunity within the "safe harbor" provisions of Rule 11, Fed. R.
Civ. P., and defendants having satisfied the court that the
Bivens claim against defendant Graffam reguires service under
Rule 4(e) rather than Rule 4(1)(2), the remaining claim of
improper service is viable, and the court grants the motion to
dismiss without prejudice to that extent. The plaintiff's motion
to strike and for imposition of sanctions is herewith denied.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
April 21, 1997 cc: Gordon R. Blakeney, Jr., Esg. T. David Plourde, Esg.
person of suitable age and discretion residing therein, or (4) by delivering copies thereof to an agent authorized by appointment or by law to receive service of process.