Pan American World Airways, Inc. v. United States

144 F.R.D. 613, 1992 U.S. Dist. LEXIS 18009
CourtDistrict Court, E.D. New York
DecidedOctober 27, 1992
DocketM.D.L. No. 799
StatusPublished
Cited by3 cases

This text of 144 F.R.D. 613 (Pan American World Airways, Inc. v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pan American World Airways, Inc. v. United States, 144 F.R.D. 613, 1992 U.S. Dist. LEXIS 18009 (E.D.N.Y. 1992).

Opinion

[615]*615MEMORANDUM AND ORDER

PLATT, Chief Judge.

The United States of America, by counsel, has moved this Court for an Order awarding sanctions to the United States, “for the conduct herein of opposing counsel and their client with regard to all litigation activity generated against the United States throughout their defense of the defendants and third-party plaintiffs herein, Pan American World Airways, Inc., Pan American World Services, Inc. and Alert Management Systems, Inc., pursuant to Rules 11 and 26(g), Federal Rules of Civil Procedure, Section 1927, Title 28, U.S.C., and the inherent power of this Court.” Motion of Third-Party Defendant, The United States of America, for Sanctions. For the reasons set forth below, the Government’s motion is denied without prejudice.

BACKGROUND

By way of introduction to its motion, the Government alleges:

This litigation arose from the wilful misconduct of Pan American World Airways (Pan Am) which allowed a terrorist bomb to be placed aboard its Flight 103 which was destroyed over Lockerbie, Scotland, on December 21, 1988. Subsequently, this Court, the families of the victims and the United States Government have been subjected to a calculated and callous litigation strategy intended to avoid liability for the carrier’s misconduct. This strategy, initiated in mid-1989, has been followed to this very day by Pan Am’s counsel and their client. Until the United States was finally dismissed in April 1992, these litigants, relying upon and wilfully implementing this strategy, successfully generated inflammatory but false allegations in the media and before this Court which were intended and did, in fact, divert attention from the legitimate focus of this litigation, Pan Am’s own wilful misconduct. The resulting waste of time, effort and financial resources and, indeed, attempted misdirection of the criminal investigation itself, more than warrant the substantial sanctions sought by this motion.

Memorandum of Points and Authorities in Support of Motion of Third-Party Defendant, the United States of America, for Sanctions (hereinafter “Memorandum in Support”) at 1.

And by way of summary of argument the Government states:

The United States seeks sanctions for all of the litigation activity generated as a result of the false allegations made on behalf of the nominal defendants and third-party plaintiffs herein against the Government and its personnel. As briefed more fully infra, such sanctions are appropriate under: (1) Rules 11 and 26(g) of the Federal Rules of Civil Procedure; (2) the statutory authority of 28 USC § 1927; and (3) the inherent power of this Court. As the facts described infra indicate, the requirements under each of these sanctioning powers are [616]*616more than satisfied by the conduct of the Pan Am litigants in this matter. Indeed, the admission from opposing counsel which finally was made in April of 1992 that he had no evidence to support the claims against the Government, fully concedes that there was no basis for the third-party complaint or the allegations which were the purported basis for the discovery requests which he initiated more than two and a half years earlier.
The United States seeks substantial sanctions sufficient to deter future conduct of the type evidenced herein, and, specifically, for the following:
(1) Pan Am’s initial subpoenas to the intelligence, military and law enforcement agencies which were based upon the false allegations in the Aviv Report;
(2) the filing of the third-party complaint which was based upon those same false allegations and the equally false allegations directed against the Drug Enforcement Administration (DEA);
(3) the opposition to the motion of the United States to dismiss the third-party complaint which was based upon further false representations that the Pan Am litigants possessed a basis for the claims in the third-party complaint;
(4) the post-filing discovery requests directed at the intelligence, military and law enforcement agencies for classified and privileged information which is completely protected by statute and under existing precedent, as to which no legitimate argument for change could reasonably be made;
(5) the submission of Freedom of Information Act (FOIA) requests to various agencies which were identical to Pan Am’s civil discovery requests; and
(6) the continuous opposition to all reasonable attempts to terminate the litigation activity against the United States which was based upon the false allegations which were repeatedly reasserted without any evidence to support them.

Memorandum in Support at 2-3.

DISCUSSION

Succinctly stated, this is an extraordinary motion in what has proved to be an extraordinary case.

In the first place, as indicated by the Court in the oral argument, the Government’s motion is unquestionably premature. One of the arguments of Pan Am on appeal from the dismissal by this Court of its third-party complaint at the outset of the trial will be that the Court precluded Pan Am from corroborating the stories of Messrs. Aviv and Coleman by precluding it from access to or discovery of the files of various government agencies which Pan Am’s counsel believes contain such corroborative evidence.

Quite apart from the prematurity of the motion, there are substantial questions whether any sanctions may properly be imposed under either 28 U.S.C. § 1927, Federal Rules of Civil Procedure 11 and 26(g), or the inherent power of this Court for any of the alleged “misconduct” on the part of Pan Am and/or its counsel.

Before a district court may order the imposition of sanctions under 28 U.S.C. § 1927, it must find bad faith on the part of the offending attorney. McMahon v. Shearson/American Exp., Inc., 896 F.2d 17, 23 (2d Cir.1990); Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir.1986). “[A]n award under § 1927 is proper when the attorney’s actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.” Oliveri, 803 F.2d at 1273.

Similarly, the imposition of sanctions under the district court’s inherent power requires a finding of bad faith. Chambers v. Nasco, Inc., — U.S. -, -, 111 S.Ct. 2123, 2133, 115 L.Ed.2d 27 (1991). The inherent power usually is invoked when a party unnecessarily delays or disrupts the litigation, commits fraud upon the court, or wilfully disobeys a court order. Id. The Supreme Court in Chambers cautioned that “[bjecause of their very potency, inherent powers must be exercised with restraint and discretion.” — U.S. at -, 111 S.Ct. at 2132.

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Bluebook (online)
144 F.R.D. 613, 1992 U.S. Dist. LEXIS 18009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pan-american-world-airways-inc-v-united-states-nyed-1992.