GURVEY v. COWAN, LEIBOWITZ & LATMAN, PC, Dist. Court, SD New York 2015 – Google Scholar:
Several years ago Amy Gurvey brought a legal malpractice action against her former divorce lawyers. Her complaint was dismissed but the Second Circuit reinstated the legal malpractice count. Ms. Gurvey, acting pro se, handled the litigation in the district court after the appellate decision in her favor.
In this opinion, the district court adopted a recommendation of a magistrate judge that Ms. Gurvey be sanctioned $20,000 for filing frivolous pleadings. The court describes the procedural background as follows:
Plaintiff is a lawyer suspended from the practice of law in the State of New York. In the three-and-a-half years since the Second Circuit mandate, Plaintiff has acted pro se except for a five-month period from April 7, 2015, to September 14, 2015. During those years, she has done little to bring her claims to resolution. Plaintiff has failed to comply with discovery orders, has resisted the taking of her own deposition and has filed a multitude of meritless motions and applications.
For instance, by Order dated July 15, 2013, Judge Pitman found that Plaintiff had violated: (1) an Order dated October 10, 2012, by seeking discovery that far exceeded the scope of her malpractice and breach of fiduciary claims; and (2) an Order dated January 14, 2013, by failing to provide Judge Pitman with written explanations of how each of her discovery requests served on Defendants were relevant to her two claims for attorney malpractice and breach of fiduciary duty by the court-order deadline of January 17, 2013. The July 15, 2013, Order denied Plaintiff’s request for an extension of time, stating that Plaintiff’s excuse that she was hospitalized for a couple months for health reasons were baseless as she continued to make numerous filings during that period.
Rather than pursuing her claims, Plaintiff has made the following applications, among others: (1) permission to file a proposed fourth amended complaint, fifth amended complaint and sixth amended complaint; (2) disqualification of Defendants’ counsel; (3) an extension of time to effect service even though Plaintiff commenced the action in 2006; (4) reconsideration of orders and opinions; (5) remand to state court; (6) purported interlocutory review of Judge Pitman’s decisions directly by the Second Circuit; (7) sanctions against Defendants; and (8) judicial recusal.
As a result, the docket sheet has grown by over 200 entries since this case was remanded by the Second Circuit over three years ago. Despite the size of the docket sheet, and a fact discovery deadline of September 19, 2014, this case has not proceeded to the summary judgment stage or trial.
The court held that several pleadings violated Rule 11, including a motion for reconsideration, a motion for leave to file a Fifth Amended Complaint and a Disqualification motion. The court explained that simply refiling a complaint and describing it as an amended complaint violates Rule 11.
“Plaintiff’s Motion to Amend also violated Rule 11 because the proposed sixth amended complaint was duplicative of her proposed fifth amended complaint. Rule 11 sanctions may be imposed when a proposed amended complaint “not only failed to correct legal deficiencies in plaintiffs’ earlier amended complaints, but reasserted, without sufficient new factual allegations, numerous claims that [had been] dismissed, and asserted certain other claims without any substantive legal basis.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012) (imposing Rule 11 sanctions for proposed complaint that “merely retreaded claims previously dismissed”), aff’d sub nom. Hochstadt v. N.Y. State Educ. Dep’t,547 F. App’x 9 (2d Cir. 2013).”
The motion for disqualification violated Rule 11 because it contained false factual statements about a Judge. The motion for reconsideration violated Rule 11 because it had no chance of success and was not designed to modify existing law.
The court further ordered that plaintiff must pay the $20,000 sanction in one year of the case will be dismissed.
Edward X. Clinton, Jr.
Legal Ethics Lawyer 