Article by Capehart Scatchard

By Betsy G. Ramos, Esq.

Although our court rules and statutory law permit the award of attorney’s fees against a plaintiff and plaintiff’s counsel for the filing of a frivolous lawsuit, it is not often that the court will actually award fees. However, in Sherifi v. City of Atlantic City, 2015 N.J. Super. Unpub. LEXIS 2552 (App. Div. Nov. 2, 2015), the trial court awarded fees of $50,000 as a sanction against plaintiff and his counsel for pursuing frivolous litigation.

Plaintiff’s claim arose from an incident at a supermarket after he attempted to return an item he bought. The evidence established that the supermarket security physically removed him from the store and assaulted him.

In dispute was what occurred afterwards. The plaintiff claims, after he was escorted out by store security, he noticed 2 Atlantic City police officers in the parking lot. One of them was pointing something like a gun at him and he felt two instant punches. One was the weapon that felt like an electrical shock and the other was a blow near the eyes.

According to the officers, plaintiff was already injured when they arrived on the scene. One officer noticed plaintiff’s face was red and asked if he had been punched. Plaintiff denied being hit and explained that he had fallen. Both officers described plaintiff’s behavior at the scene as uncontrollable and crazy and testified that he talked about spaceships and aliens sent to abduct him, saying the government had implanted electrodes and tracking devices in him.

The plaintiff was transported to the hospital and it was determined that he had sustained multiple fractures of the bones surrounding his eye. Although he told hospital staff that his injuries were caused by being struck by electricity, the experts determined that the fractures were caused by a blunt object, possibly a fist.

Plaintiff filed a complaint against the police officers with the City’s internal affairs department. He alleged that one of the officers aimed a stun gun or some other weapon at him and fired some type of projectile, which hit him in the face and knocked him to the ground. The officers, however, denied having a Taser and denied assaulting him. The IA complaint was determined to be unfounded.

Thereafter, the plaintiff filed his civil suit, suing the supermarket, the City, and the officers. He alleged that the City was negligent in its training and supervision of the officers and had a policy of coercing and intimidating suspects by means of excessive force and unlawful arrest and detention.

Shortly after the City answered the complaint, the officers’ attorney sent the plaintiff’s counsel a letter accusing the complaint of being frivolous and demanding that he withdraw it pursuant to Rule 1:4-8. About a year later, the City’s attorney sent a similar letter. The plaintiff’s counsel refused both demands because of ongoing discovery and factual issues relevant to the plaintiff’s claim.

The action was tried over the course of 11 days. At the close of plaintiff’s case, the court granted the City’s motion for a directed verdict. However, the judge denied the officers’ similar application. The jury awarded a verdict in the plaintiff’s favor, finding that he was a victim of assault and battery for which the supermarket was entirely at fault and awarded him $200,000.

Thereafter, the City defendants filed a motion for frivolous litigation sanctions. The judge awarded fees of $22,264 and $27,680 to the City and to the officers, respectively. The judge found that had the plaintiff’s counsel conducted even a cursory review of the facts, he would have recognized that the plaintiff had no valid claim against the City or its officers. He ordered the fee to be split between plaintiff and plaintiff’s counsel. The judge placed a lien against the settlement for the plaintiff’s half and entered a judgment against the plaintiff’s counsel for the other half.

Upon appeal filed by the plaintiff’s counsel, the Appellate Division found that there was no legal or factual support for plaintiff’s counsel to have continued to pursue the claims against the City or the officers once he received the demand for their withdrawal. Pre-trial discovery and deposition testimony all supported that the officers did nothing but provide assistance and did not carry Tasers or stun guns. Further, the medical experts supported the conclusion that the plaintiff’s eye injury was caused by being punched in the eye, an event that occurred before the police arrived.

As for the City, there was no factual support of any policy instructing its officers to let stores handle unruly customers until police were absolutely necessary. The City denied it and the plaintiff was unable to produce any evidence to the contrary. The plaintiff’s attorney should have known the claims were unsupported by law and fact and, therefore, were frivolous.

Thus, the Appellate Davison found that because the plaintiff’ attorney refused to withdraw these unsupported claims, he breached his obligation. Accordingly, he was subject to sanctions under Rule 1:4-8 and it upheld the fee award entered against the plaintiff’s counsel.

The take away from this case is that, while it is difficult to obtain a fee award for a frivolous lawsuit, especially in an excessive force case, if the claim is frivolous, an appropriate letter under the rule should be sent to preserve the claim. Thereafter, if there is a dismissal, the public entity may be able to successfully pursue sanctions.