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Napier v. Thirty or More Unidentified Federal Agents

filed: August 31, 1988.

GEORGE NAPIER, SR., AND SAMUEL E. BASS, APPELLANTS
v.
THIRTY OR MORE UNIDENTIFIED FEDERAL AGENTS, EMPLOYEES OR OFFICERS, VETERAN'S ADMINISTRATION, A BODY POLITIC, TEN OR MORE UNIDENTIFIED VETERAN ADMINISTRATION AGENTS, SERVANTS OR EMPLOYEES, THE AMERICAN LEGION, A CORPORATION OF BUSINESS ORGANIZATION, THE DISABLED AMERICAN VETERANS, A CORPORATION OR BUSINESS ORGANIZATION, JOHN DOE, SAID NAME BEING FICTITIOUS, RICHARD ROE, SAID NAME BEING FICTITIOUS, JAMES SMITH, SAID NAME BEING FICTITIOUS AND THE AMERICAN RED CROSS, A CORPORATION OR BUSINESS ORGANIZATION, APPELLEES



On Appeal From the United States District Court for the District of New Jersey, D.C. Civil No. 86-3336.

Higginbotham, Becker, Circuit Judges, and Shapiro, District Judge.*fn*

Author: Becker

Opinion OF THE COURT

BECKER, Circuit Judge.

This opinion addresses appeals from a substantial award of sanctions imposed against plaintiff's counsel under Rule 11 of the Federal Rules of Civil Procedure. George Napier, the plaintiff and appellant, is a black man who was assigned to a segregated unit while serving in the U.S. Army during World War II. Napier's suit contends that he suffered constitutional deprivations and lasting physical and psychological injuries from the experience. This case is, however, the third lawsuit that Napier has brought seeking redress for these events, which occurred over 40 years ago. Both of the previous suits were determined adversely to Napier on the merits. The district court dismissed Napier's complaint on res judicata, statute of limitations and other grounds. The district court also imposed sanctions against Napier's lawyer, Samuel E. Bass, on the ground that he had filed a frivolous lawsuit.

Addressing the merits of Napier's appeal, we conclude that the district court correctly dismissed Napier's complaint. We are faced, however, with three other questions which arise out of Bass' appeal of the sanction. First, we must determine whether the district court's order determining sanctions liability (entered coincident with final judgment on the merits) was appealable before the district court determined the amount of the sanctions. Consonant with our precedent, In re Jeannette Corp., 832 F.2d 43 (3d Cir. 1987), we conclude that it was not, and, more importantly, that Jeannette is unaffected by the recent Supreme Court decision in Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S. Ct. 1717, 100 L. Ed. 2d 178 (1988). We therefore have jurisdiction over Bass' appeal, which was filed within sixty days of the determination of the sanctions amount but not within sixty days of the entry of the order fixing liability for sanctions.

Second, we must determine whether, when the United States is the beneficiary of a Rule 11 sanctions award for defending a frivolous lawsuit, the time of the Assistant U.S. Attorney on the case is valued at a market rate, or at some other rate, such as the $75 per hour rate established by the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) (1982), or the government's actual costs. We conclude that the $100 per hour awarded on this case for the services of the Assistant U.S. Attorney was an appropriate exercise of discretion, as was the total amount awarded the government ($4,260).

Third, we must determine the propriety of the district court's award of $17,163 to the defendant American Legion for the work of its several counsel in defending the lawsuit in view of the fact that there was not only duplication of effort with counsel for the government but also that three attorneys for the Legion expended over 117 hours to defend this patently frivolous lawsuit. We conclude that defendants had a duty to mitigate, and that the district court's determination of a reasonable fee need not include full compensation for all expenses incurred. Because the district court did not assess the reasonableness of the fee in light of these principles, we conclude that it abused its discretion in making this large award, and we will remand for further proceedings on that aspect of the case.

I. PROCEDURAL HISTORY

On August 25, 1986, Napier filed a complaint, signed by his attorney, Bass, naming as defendants "Thirty or More Unidentified Federal Agents, Employees or Officers," the Veterans' Administration (VA), "Ten or More Unidentified Veterans' Administration Agents, Servants or Employees," the American Legion, the Disabled American Veterans, the American Red Cross, and three fictitious defendants. After noting that Napier had served in a segregated unit of the Army between October 31, 1942 and June 20, 1944, the complaint alleged, inter alia, that Napier suffered physical and psychic injuries and various constitutional deprivations as a result of his service, and that the defendant veterans' support organizations had perpetuated the harms by failing to advise him of his rights and remedies and by failing to provide fair proceedings to redress his grievances. Because the district court dismissed plaintiff's complaint on the pleadings, we will treat the complaint's allegations as true. See Labov v. Lalley, 809 F.2d 220, 221-22 (3d Cir. 1987).

The complaint sought damages and costs against the defendants and an order requiring the Veterans' Administration to reopen Napier's request for disability benefits. Several motions quickly followed: the government moved for dismissal on res judicata grounds; the Legion moved for dismissal for defective service of process; both the government defendants and Legion moved for summary judgment on statute of limitations grounds; and both moved for attorney sanctions under Fed. R. Civ. P. 11. Finally, Napier moved for an enlargement of time within which to serve the Legion.

The district court, by order entered May 20, 1987, granted the defendants' motions. The district court's decision was based on a number of discrete grounds. First, the court held that Napier's action was barred by res judicata in view of the fact that Napier had filed two earlier actions which had been decided adversely to him on the merits: (1) an action filed in 1960 seeking recovery for disability arising from his World War II military service and subsequent treatment, which was dismissed for lack of jurisdiction and on statute of limitations grounds, see Napier v. Veterans Administration, 187 F. Supp. 723 (D.N.J. 1960), aff'd per curiam, 298 F.2d 445 (3d Cir.), cert. denied, 371 U.S. 186, 83 S. Ct. 266, 9 L. Ed. 2d 228 (1962); and (2) an action filed in 1976 alleging that he "suffered deprivation of his constitutional rights as a result of the circumstances to which he was subjected during his period of active duty with the United States Army," App. at 98, which was dismissed for want of prosecution in 1977.*fn1

Second, the district court dismissed the complaint against the American Legion for improper service, Fed. R. Civ. P. 4(d). The complaint was served on Raymond L. Zawacki, an employee of the Department of New Jersey of the American Legion, but the Department is a legal entity separate from the named defendant, the national organization, and neither Zawacki nor anyone in his office is the designated agent of the American Legion. Third, because 38 U.S.C. § 211(a) divests federal courts of the power to review determinations involving the Veterans' Administration, the district court determined that it lacked jurisdiction to review Napier's claims against the Veterans' Administration.

Fourth, the district court granted the motion to dismiss on grounds of statute of limitations. Having found the applicable statute to be New Jersey's two-year statute of limitations for tort actions, the court noted that "it appears the conduct which is the subject of the 1986 Complaint arose more than 42 years ago." App. at 114. Finally (and alternatively), the district court determined that the complaint failed to plead the Constitutional violations with the particularity required by Fed. R. Civ. P. 8(a) and also that the defendants were entitled to the equitable defense of laches for lack of diligence by Napier in failing to prosecute his claim.

The district court then turned to consideration of the Rule 11 motion. The court noted that Napier's own counsel (Kenneth Walker, of Freeman & Bass) had conceded at a hearing on a motion for dismissal and sanctions that the 1960, 1976 and 1986 actions were essentially identical except that the 1986 complaint added unnamed government agents, the American Red Cross, the Disabled American Veterans, and the American Legion as additional defendants. The court concluded that, particularly in light of the fact that Sam Bass had served as counsel for Napier in the 1976 action, it was abundantly clear that the 1986 complaint was not "well grounded in fact." App. at 112. The court determined that the complaint demonstrated a "lack of legal merit and the total void of any argument to support the extension, modification, or reversal of existing law as well as the disregard of the 1960 and 1976 actions." App. at 122.

In view of these determinations, the district court added to its May 20, 1987 order dismissing the complaint on the above-noted grounds a provision that "sanctions shall be imposed on plaintiff's counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure. Counsel are to submit appropriate documentation of costs and fees in this matter." App. at 91. A notice of appeal from the May 20 order dismissing the complaint was timely filed on June 15, 1987, but only on behalf of Napier, and not on behalf of counsel, against whom the sanctions order ran.

On June 26, 1987 the district court held a hearing to determine the appropriate amount of Rule 11 attorneys' fees. The government defendants and the Legion submitted detailed documentation of their counsel fees and costs. On June 29 the district court entered a judgment against Samuel E. Bass in the amount of $21,423.21 ($4,260 for the government and $17,163.21 for the Legion). On August 4, 1987, less than sixty days after the June 29 order (sixty days is the allowable appealable period in actions involving the government under Fed. R. App. P. 4(a)(1)), though more than sixty days after the May 20 order in which the district court determined sanctions liability, an "amended" notice of appeal from the May 20 order was filed on behalf of Bass as well as Napier. Thus, Napier appeals from the dismissal of his complaint, and both Napier and Bass appeal the award of sanctions and the sanctions amount.

II. DISMISSAL OF THE COMPLAINT

As we have explained, the district court dismissed the complaint on five legal grounds. Our review of an order dismissing a complaint involves a question of law and is therefore plenary. D.P. Enterprises v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984). We must "determine whether in the light most favorable to [the plaintiff] 'it appears beyond doubt that [the plaintiff] can prove no set of facts in support of his claim which would entitle him to relief.'" Paolino v. Channel Home Centers, 668 F.2d 721, 722 (3d Cir. 1981) (quoting Conley v Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The record so clearly supports the district court's dismissal on a variety of grounds that we might dispose ...


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