Midamines SPRL Ltd. v. KBC Bank N.V. ( 2017 )

16-1048-cv (L)
Midamines SPRL Ltd. v. KBC Bank N.V.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 6th day of December, two thousand
seventeen.
PRESENT: DENNIS JACOBS,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - -X
Midamines SPRL Ltd., Hassan A. Abbas,
Appellants,
-v.- 16-1048 (L)
16-3427 (Con)
KBC Bank N.V., Antwerp Diamantse Bank
NV,
Appellees.
- - - - - - - - - - - - - - - - - - - -X
FOR APPELLANTS: Hassan A. Abbas, Hanover Park,
Illinois.
FOR APPELLEES: Alvin Lee (Peter A. Bicks, Kelly
M. Daley, on the brief), Orrick
Herrington & Sutcliffe LLP, New
York, New York.
1
Appeal from a judgment of the United States District
Court for the Southern District of New York (Sullivan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.
Hassan A. Abbas and his alter ego entity Midamines SPRL
Ltd. (“Midamines”) appeal from the judgment of the United
States District Court for the Southern District of New York
denying leave to file a declaratory judgment action and
sanctioning them in the amount of $75,722.50. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
The dispute between the appellants and KBC Bank N.V.
(“KBC”) has been before this court before. In brief, Abbas
sued in 2012 to recover funds allegedly due to Midamines
from KBC, a Belgian bank headquartered in Brussels. Since
the appellants were required to adjudicate any dispute
arising in connection with the Midamines’ accounts in
Belgium, the court dismissed on the ground of forum non
conveniens in 2013. Midamines SPRL Ltd. v. KBC Bank NV,
2014 WL 1116875 (S.D.N.Y. Mar. 18, 2014), aff’d 601 F.
App’x 43 (2d Cir. 2015)(summary order). Abbas has since
continued to pursue his underlying grievances with the
appellees and their counsel through vexatious and
duplicative motion practice. This appeal concerns two
narrow issues arising from this pattern of frivolous
conduct: (1) whether the district court’s calculation of
attorneys’ fees for sanctions imposed against Abbas was
reasonable; and (2) whether Abbas and his alter egos are
barred by a filing injunction from pursuing their rehashed
allegations in a new declaratory judgment action.
The sanctions award followed a motion to disqualify
appellees’ counsel, Orrick, Herrington & Sutcliffe LLP
(“Orrick”), filed by Abbas after his claims were dismissed.
That motion intentionally disclosed the content of a
privileged communication between an Orrick attorney and
KBC. Since Abbas’ motion was intended only to harass
opposing counsel, and precipitated months of unnecessary
litigation, we granted the appellants’ request for
attorneys’ fees and costs, and remanded to the district
2
court solely to determine whether the amount requested was
reasonable.1
The district court approved $75,722.50 as a reasonable
sanction for Abbas’ frivolous motion to disqualify the
adversary counsel and gratuitous disclosure of privileged
communications. We review “all aspects of a District
Court’s decision to impose sanctions for abuse of
discretion.” United States v. Seltzer, 227 F.3d 36, 39 (2d
Cir. 2000)(internal quotation marks omitted). A district
court has “considerable discretion” in determining a
reasonable attorneys’ fee amount, and its assignment of a
“lodestar” figure will result in a “presumptively
reasonable fee.” See Arbor Hill Concerned Citizens
Neighborhood Ass’n v. Cty. of Albany & Albany Cty. Bd. of
Elections, 522 F.3d 182, 190 (2d Cir. 2008).
The district court did not abuse its discretion in
determining that the requested amount of $75,722.50
reflected reasonable fees and costs. Applying the lodestar
method, it found that Orrick’s average rate of $379 per
hour and stated total of 197.9 hours billed were reasonable
for the work performed. See id. at 184. The court noted
that $379 per hour was actually a “substantial reduction,”
and in line with or below rates for Orrick attorneys
approved by other courts. See Amaprop Ltd. v. Indiabulls
Fin. Servs. Ltd., No. 10-cv-1853 (PGG), 2011 WL 1002439, at
*5 (S.D.N.Y. Mar. 16, 2011). Orrick’s rate was likewise
consistent with those regularly approved in the Southern
District. See id. at *6 (in determining what rates are
reasonable, a court may look to comparable rates charged by
lawyers in its district).
Judge Sullivan also found that 197.9 billed hours was
reasonable. Orrick submitted detailed billing records to
support KBC’s total request, specifying the attorney, date,
1In that order, we admonished appellants for “hav[ing] filed
a number of frivolous motions in this appeal, including
their June 8, 2014 motion to disqualify and some of the
present motions. Accordingly, appellants are hereby warned
that the continued filing of duplicative, vexatious, or
clearly meritless motions or other papers will result in
the imposition of sanctions.” J. App’x at 39.
3
hours, and nature of the work done. See Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983) (placing burden on the
claimant to submit evidence of hours worked and rates
claimed to justify attorneys’ fees); N.Y.S. Ass’n for
Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1141 (2d
Cir. 1983). These records show hours billed for responding
to the motion to disqualify, filing a motion to seal
privileged documents exposed by the appellants, proposing
redactions to protect privileged material, and preparing
for the appellants’ subsequent motion for reconsideration--
all necessitated by the appellants’ frivolous litigation
strategy. The lodestar calculation of the hours billed
multiplied by the blended rate is therefore presumptively
reasonable. Abbas offers no authority for his bare
allegations that Orrick was inefficient or duplicative.2
Abbas separately challenges the district court’s ruling
enjoining him from filing a declaratory judgment action in
aid of his claim to possession of the funds allegedly held
by KBC. After being ordered to pay attorneys’ fees, Abbas
filed another frivolous lawsuit against Orrick alleging
tortious interference. Hassan A. Abbas, Esq. v. Orrick,
Herrington & Sutcliffe LLP, No. 15-cv-01545 (RJS), 2016 WL
1071033 (S.D.N.Y.). The district court dismissed the
complaint, noting that it “does not come close to
satisfying the standard for a tortious interference claim”
but “[r]ather, it seemed designed, like many of [Abbas’]
previous motions in the Midamines Action, to prolong
litigation and to continue to harass Orrick based on the
firm’s representation of [KBC].” Id. at *6. Judge
Sullivan then entered an order enjoining Abbas from “making
any future filings in this Court in this case or in any
action involving the allegations set forth in the related
Midamines Action” without leave. Id. When Abbas sought
leave to file the declaratory judgment asserting possession
of the disputed bank funds in his original action, the
district court denied the request: “Plaintiff Abbas’s
contemplated declaratory judgment action is clearly an
2 Abbas devotes the majority of his brief to revisiting
already-resolved questions in prior litigation, including
whether sanctions were proper and the dismissal of his
underlying claims. These issues are not properly before
the court on appeal, and we decline to respond to them.
4
attempt to relitigate the same issues raised in the
Complaint in this action relating to the alleged improperly
stopped payments on Plaintiff Abbas’s checks.” Supp. App.
at 42.
The district court did not abuse its discretion in
enforcing its own injunction. See Truskoski v. ESPN, Inc.,
60 F.3d 74, 77 (2d Cir. 1995)(per curiam). It is the duty
and power of district courts to enforce filing injunctions
against plaintiffs that “abuse the process of the Courts to
harass and annoy others with meritless, frivolous,
vexatious or repetitive” litigation. In re Martin-Trigona,
737 F.2d 1254, 1262 (2d Cir. 1984). Abbas seeks a judgment
that he is entitled to bank funds allegedly held by KBC,
which is, in effect, an evasion of this court’s previous
rulings that he must pursue these claims in Belgium. See
Midamines SPRL Ltd., 601 F. App’x at 43, 45-46. The motion
is squarely within the prohibition of the district court’s
filing injunction, and would be immediately dismissed for
forum non conveniens if allowed to proceed. Beyond
preserving judicial resources and preventing harassment of
the appellees and their counsel, the purpose of the
injunction is precisely to avoid deliberating further on
matters that we have already deemed unsuitable and
unresolvable in this forum.
The majority of the appellants’ brief seems to be a
collateral attack on the injunction itself, rather than an
appeal of the district court’s ruling on the leave to file
an additional action. To the extent the appellants seek
here to challenge the propriety of the filing injunction,
we lack jurisdiction to review it, and we reject any effort
to litigate or resolve additional issues not properly
before this court. See United States v. Martinez-Carcano,
557 F.2d 966, 969 (2d Cir. 1977); Epstein v. Goldstein, 110
F.2d 747, 748 (2d Cir. 1940)(per curiam).
For the foregoing reasons, and finding no merit in
Abbas’ other arguments, we hereby AFFIRM the judgment of
the district court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
5