Judge Refuses To Reopen Discovery

In Lufthansa Cargo AG v. Total Airport Services, 12 CV 4869 (E.D.N.Y. Oct. 24, 2014), Magistrate Judge Roanne L. Mann granted defendant’s motion for reconsideration to the extent of deferring decision on the admissibility of evidence and denied reconsideration of the motion to reopen discovery. Magistrate Judge Mann had denied defendant’s motion to reopen fact discovery after defendant had fortuitously discovered new evidence during a court-ordered inspection of an aircraft outside the bounds of the authorized inspection and five months after the close of discovery.

Defendant argued that it should be allowed to reopen discovery because plaintiffs’ Rule 30(b)(6) witness, Dieter Hammer, had testified that Lufthansa did not fly with repaired aircraft, but admitted that he was not knowledgeable about structural damage or related repairs. A subsequent 30(b)(6) witness, Andreas Grubert, gave testimony that appeared to contradict Hammer. The newly discovered evidence indicated that Lufthansa may indeed have flown aircraft following structural repairs.

Magistrate Judge Mann refused to reopen discovery because defendant had not been diligent in pursuing additional information from plaintiffs following the contradictory testimony given by Hammer and Grubert. A court-ordered scheduling order may be modified under Federal Rule of Civil Procedure 16(b)(4) only for “good cause,” and “good cause depends on the diligence of the moving party.” Slip op. 6. Here, defendant did not seek documents and answers to interrogatories concerning other repairs for structural damage to plaintiffs’ fleet of aircraft before discovery closed, thus a fortuitous finding during a post-discovery inspection did not demonstrate adequate diligence to convince the court to reopen discovery long after it ended.

Concerning the admissibility of the fortuitous evidence gathered during the inspection of the aircraft, the court concluded:

that the balancing of the probative value of such evidence as against any prejudice resulting from its admission is more appropriately deferred until the time of trial; the presiding judge will then be in a position to consider the testimony already adduced at trial in assessing the admissibility of the proof in question.

Slip op. 10.

Defendant Gets New Trial When Someone Tries to Bribe a Juror to Find in His Favor

On October 8, 2014, the Second Circuit issued a decision in United States v. Morrison, 13-4737-CR, affirming the grant of a new trial to a defendant where an unknown person had attempted to bribe a juror to find for the defendant.

In Morrison, the defendant was convicted by a jury in the EDNY of illegal possession of a firearm as a convicted felon. After the trial,

the government learned that, during the jury’s deliberations, an unidentified individual had attempted to bribe the jury foreperson . . to induce him to return a verdict favorable to the defendant, and he had failed to disclose the attempt. The government opened a grand jury investigation, and . . . informed the district court and the defendant of the incident. [The defendant] moved to vacate his conviction. After three days of evidentiary hearings . . . the district court found that the government had not successfully rebutted the presumption of prejudice that applies when a juror is exposed to extrajudicial influence,

and granted the defendant a new trial. (Internal citations omitted). The Second Circuit affirmed, explaining:

Guided by the standards outlined in Remmer[ v. United States, 350 U.S. 377 (1956)], it expressly acknowledged that its task was to determine whether the government had rebutted the presumption of prejudice by coming forward with information that the extraneous influence was harmless. In making that determination, the court was required to apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror. It found that [the juror] was, like the juror in Remmer, a disturbed and troubled man from the date of the contact until after the trial, as a result of the bribe attempt and because of his fear of significant sanction should his abhorrent conduct later be uncovered. The court further concluded that the typical or hypothetical juror would react just that way. As a result, the district court held that the contact had not been harmless in this case.

(Internal quotations and citations omitted). The logic of the Remmer rule is clear, but it nonetheless seems odd that the as a consequence of someone trying to bribe a juror to acquit the defendant, the defendant gets a new trial.

Court Declines To Exercise Supplemental Jurisdiction Over Article 78 Claim In Hamptons Eruv Litigation Raising Multiple Federal Claims

Magistrate Judge Kathleen Tomlinson again addressed the ongoing effort to create a Hamptons eruv, in a September 24, 2014 order in East End Eruv Association v. Town of Southampton, et al., 13 CV-4810 (AKT) (EDNY Sept. 24, 2014). An eruv is “an unbroken delineation of an area” that allows Jews “with certain religious beliefs to carry or push objects from place to place within the area during the Sabbath and Yom Kippur.” Slip op. 1. The demarcation of the eruv would be established by attaching “wooden or plastic strips known as ‘lechis’” to the sides of telephone and utility poles. Id. Plaintiffs’ proposed eruv would eventually encompass parts of Southampton, Westhampton Beach, and Quogue. See id. at 1-2.
We last blogged about the ongoing Hamptons eruv dispute here, in discussing Judge Tomlinson’s June 16, 2014 order in the related case Verizon v. The Village of Westhampton Beach, et al., 11 Civ. 252 (AKT) (EDNY June 16, 2014). Magistrate Judge Tomlinson there ruled that Verizon and the Long Island Power Authority could enter into agreements with the East End Eruv Association (“EEEA”) allowing the attachment of lechis to the utilities’ poles. In addition to the Verizon and Southampton cases, there is a third case brought by EEEA against Westhampton Beach, East End Eruv, et al. v. Village of Westhampton Beach, 11 CV 213. See Slip op. 1 n.1.
In her September 24 order, Magistrate Judge Tomlinson granted Southampton’s motion to dismiss to the extent of dismissing without prejudice plaintiffs’ sixth cause of action, which the Judge found was in substance a state-law Article 78 claim, and staying plaintiffs’ remaining claims pending resolution of the Article 78 claim in New York State court. Slip op. 27, 38. Although the sixth cause of action did not mention Article 78 expressly, it incorporated the Article 78 legal standard, seeking a declaratory judgment that the Town’s denial of plaintiffs’ application to allow attachment of 28 lechis to 15 utility poles was arbitrary and capricious, and an injunction directing the Southampton Zoning Board to issue any permits necessary for plaintiffs to construct the eruv. See id. at 26-27. Subject matter jurisdiction was premised on supplemental jurisdiction under 28 U.S.C. § 1367, based on plaintiffs’ assertion of claims under the First and Fourteenth Amendments, 42 U.S.C. § 1983, and the federal Religious Land Use and Institutionalized Persons Act.
Judge Tomlinson declined to exercise supplemental jurisdiction over the Article 78 claim, consistent with the rulings of the “overwhelming majority of district courts.” Slip op. 29. The court relied on Carver v. Nassau County Interim Fin. Auth., 730 F.3d 150 (2d Cir. 2013), in which the Second Circuit declined to decide whether Article 78 itself deprives the federal courts of subject matter jurisdiction, but “recognized the State preference to handle these claims on its own.” Slip op. 31-32. Judge Tomlinson noted that when the Article 78 claim dismissed in that case was later adjudicated in state court, the state court “reached a decision directly contrary to that of the federal district court.” Id. at 32. While the exercise of supplemental jurisdiction might be warranted in “unusual circumstances,” id. at 35, Article 78 is a “’novel and special creation of state law,’” and a “’purely state procedural remedy.’” Id. at 33 (quoting Birmingham v. Ogden, 70 F. Supp. 2d 353 (S.D.N.Y. 1999). Apart from the exceptional case, therefore, supplemental jurisdiction under 28 U.S.C. § 1367 will not lie over an Article 78 claim, even if most or all of the accompanying causes of action are federal.

Claim for Providing Material Support Under Antiterrorism Act Requires Knowing Support of Terrorist Organization, Not Terrorist Activities

On September 22, 2014, the Second Circuit issued a decision in Weiss v. National Westminster Bank PLC, No. 13-1618-CV, discussing the scienter required to state a claim for providing “material support and resources to a terrorist organization in violation of the Antiterrorism Act.”

In Weiss, the EDNY dismissed a an Antiterrorism Act claim, holding that such a claim requires knowing support of terrorist activities. The Second Circuit reversed, explaining:

While § 2333(a) does not include a mental state requirement on its face, it incorporates the knowledge requirement from § 2339B(a)(1), which prohibits the knowing provision of any material support to terrorist organizations without regard to the types of activities supported. . . .

Thus, to fulfill § 2339B(a)(1)’s scienter requirement, incorporated into § 2333(a), Plaintiffs must show that [the defendant] both knew that it was providing material support to Interpal and knew that Interpal engaged in terrorist activity. Section 2339B(a)(1) does not require a showing that NatWest knew it was providing material support for terrorist activity.

(Internal quotations and citations omitted) (emphasis added). The Second Circuit went on to explain that:

For the purposes of § 2339B(a)(1), a defendant has knowledge that an organization engages in terrorist activity if the defendant has actual knowledge of such activity or if the defendant exhibited deliberate indifference to whether the organization engages in such activity. . . . . Section 2339B(a)(1) explicitly incorporates the meaning of “engage in terrorist activity” from § 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(3)(B)(iv)(IV), which defines “engage in terrorist activity” to include soliciting funds or other things of value for a terrorist organization described in clause (vi)(I). Clause (vi)(I) defines “terrorist organization” to mean an organization designated under section 1189 of this title, and § 1189 authorizes the Secretary of State to designate an organization as a foreign terrorist organization (“FTO”).

(Internal quotations and citations omitted) (emphasis added). Because Interpal was alleged to have “solicited funds for Hamas,” which has been designated as a terrorist organization, “Interpal engaged in terrorist activity within the meaning of Section 212(a)(3)(B) of the Immigration and Nationality Act.” To prevail, the plaintiff thus had to show that the defendant”provided material support to Interpal while having knowledge that, or exhibiting deliberate indifference to whether, Interpal solicited funds or other things of value for Hamas, regardless of whether those funds were used for terrorist or non-terrorist activities.”

Habeas Petitioner Entitled To Hearing On Whether Counsel Ignored Instruction To File Notice Of Appeal

On August 28, 2014, the Second Circuit issued a decision in Zazi v. United States, 13-2437-PR, holding that the EDNY erred in not holding a hearing on the question of whether a habeas corpus petitioner’s counsel ignored the petitioner’s instructions to file a notice of appeal.

In Zazi, the EDNY denied without hearing a petition for habeas corpus including a claim that the petitioner was “denied effective assistance of counsel by his lawyer’s failure to file a timely notice of appeal.” The Second Circuit reversed, explaining:

Our precedent holds that “a lawyer who disregards a defendant’s specific instruction to file a notice of appeal acts in a manner that is professionally unreasonable. Thus, even where, as here, a petitioner has waived his right to appeal, we have held that a claim that counsel failed to file a requested notice of appeal warrants a hearing before the district court to determine whether such a request was in fact made.

Because no such hearing was conducted here, on consent of the parties, we remand this case to the district court to conduct an evidentiary inquiry into [petitioner’s] claim that counsel was constitutionally ineffective in failing to file a requested notice of appeal, leaving the scope and nature of that hearing to the discretion of the district court.

(Internal citations omitted) (emphasis added).

Liens For Municipal Water And Sewer Charges Not Debts For the Purposes of the FDCPA

On August 27, 2014, the Second Circuit entered a decision in Boyd v. J.E. Robert Co., 12‐4422-CV, affirming a decision by the EDNY holding that water and sewer service liens were not debts for the purposes of the Fair Debt Collection Practices Act.

In Boyd, the EDNY dismissed the plaintiffs’ putative class action alleging “that defendants obtained unauthorized attorneys’ fees and costs in connection with actions to foreclose liens on plaintiffs’ properties arising out of unpaid municipal property taxes and water and sewer charges” in violation of the FDCPA, holding that the liens involved “did not involve a ‘debt’ as defined by the FDCPA.” The Second Circuit affirmed, explaining:

In order to maintain an FDCPA action, the allegedly unlawful behavior must occur in connection with collection of a “debt.” The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5) (emphasis supplied).

We have not addressed the question of whether New York City’s mandatory water and sewer charges involve “debt” within the meaning of the FDCPA. In Beggs v. Rossi, we held that municipal taxes levied automatically in connection with ownership of personal property do not involve a “transaction” as that term is understood under the FDCPA and, accordingly, are not “debt” for purposes of the FDCPA. 145 F.3d 511, 512 (2d Cir. 1998). We now conclude that the New York City water and sewer charges also do not involve “debt” under the FDCPA. Rather, the relationship between plaintiffs and the City with respect to such charges is akin to “taxpayer and taxing authority,” and “does not encompass that type of pro tanto exchange which the statutory definition envisages.” Beggs, 145 F.3d at 512.

Like property taxes, New York City water and sewer charges are levied, in some amount, as an incident to property ownership in New York. In addition, the actions to foreclose the liens in question were instituted pursuant to New York law governing “tax liens.” Further, the city ordinance governing foreclosure of water and sewer liens requires that they be conducted “in the same manner as a lien for [] taxes.” N.Y. Pub. Auth. L. § 1045‐j(5). In light of the foregoing, the charges at issue are best treated as akin to the municipal property taxes discussed in Beggs and, accordingly, outside the scope of the FDCPA.

Italian Forum Selection Clause Contained In Order Confirmation Form Upheld

In Allied Dynamics Corp. v. Kennametal, Inc., 12-CV-5904 (JFB)(AKT) (E.D.N.Y. Aug. 5, 2014), Judge Joseph F. Bianco granted defendants’ motion to dismiss plaintiff’s claims for breach of contract and tort based on improper venue. Plaintiff, a New York manufacturer of turbine parts, had ordered blade parts from defendant, an Italian company, for gas turbine assembly. Plaintiff alleged that defendant had failed to provide goods of the quality and quantity promised.
When plaintiff filed suit in New York, defendants asserted that the parties had chosen Milan, Italy, as the exclusive forum for disputes. This forced the court to determine, first, which documents constituted the parties’ agreement, and, second, whether that agreement included the forum selection clause. The court resolved these questions by applying the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). After an evidentiary hearing, the court held that plaintiff’s initial purchase orders constituted offers but defendants’ order confirmations—which included the forum selection clause in dispute, among other general terms and conditions—constituted rejections and counteroffers that plaintiff was deemed to have accepted under the CISG when it failed to object within fifteen days of receipt of each confirmation.
But that did not end the inquiry. Even valid forum selection clauses can be overcome if the partyresisting enforcement can show that enforcement would be “unreasonable or unjust, or that the clause is invalid for reasons such as fraud or overreaching.” Slip op. 15 (internal quotation and citation omitted). The court found no evidence of fraud or overreaching and concluded that the Italian forum would not deprive plaintiff of a remedy. As a result, Judge Bianco dismissed the case in favor of the Italian courts.

Pro Se Plaintiff Should Have Been Allowed To Amend Complaint

On August 19, 2014, the Second Circuit issued a decision in Garay v. Novartis Pharmaceuticals Corp., 13-3762-CV, reversing a denial by the EDNY of leave to amend a complaint that had been dismissed on the pleadings.

In Garay, the EDNY dismissed with prejudice a pro se plaintiff’s age discrimination and retaliation claims. The Second Circuit affirmed the dismissal, but reversed the EDNY’s refusal to allow the plaintiff to file an amended complaint, explaining:

While the District Court’s ruling was otherwise sound, it erred in denying [the plaintiff] leave to amend her complaint on futility grounds. As a general rule, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that she has a valid claim. We have thus held that a pro se complaint should not be dismissed without the Court granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated. An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6).

(Internal quotations and citations omitted). After reviewing the plaintiff’s opposition to the defendant’s motion for judgment on the pleadings, the Second Circuit concluded that she should have been allowed to file an amended complaint because such an amendment might not have been futile in light of her allegations regarding retaliation.

Defendant Liable for Malicious Prosecution Even Though No Actual Prosecution Took Place

On July 30, 2014, the Second Circuit issued a decision in Stampf v. Trigg, Docket No. 11-3225-CV, affirming an EDNY decision finding a defendant liable for malicious prosecution.

In Stampf, a defendant, Trigg, accused the plaintiff, her co-worker Stampf, of touching her inappropriately and filed a complaint with the MTA police.  Trigg’s complaint led to Stampf’s arrest, during which she “was handcuffed” in front of co-workers, “placed in a police car,” “held in a locked cell for approximately four hours, and “issued a desk appearance ticket (‘DAT’), which listed Forcible Touching as the offense charged.”  Stampf was subsequently released and no criminal complaint ever was filed against her. However, Stampf’s employer, the LIRR, suspended her for 21 days without pay; “an arbitration panel convened pursuant to the Railway Labor Act and affirmed the” LIRR’s “determination that [the plaintiff] violated [its] Anti-Harassment Policy, but reduced the suspension to ten days and awarded [the plaintiff] compensation for lost time.”

Stampf subsequently sued Trigg, the LIRR “and other defendants” in the EDNY “asserting violations of the Federal Employers Liability Act (‘FELA’) and 42 U.S.C. § 1983; state law claims of false arrest, malicious prosecution, negligent and intentional infliction of emotional distress; and violations of state and city human rights laws.” The EDNY granted the defendants summary judgment on all of Stampf’s claims except her “malicious prosecution against Trigg . . . and her discrimination claims against the LIRR.” At trial, “the jury found Trigg liable for malicious prosecution and awarded Stampf damages of $200,000 for past mental and emotional suffering, $100,000 for future mental and emotional suffering, $30,000 as compensation for out-of-pocket losses, and $150,000 as punitive damages, totaling $480,000.”

On appeal, the Second Circuit affirmed the jury’s finding of liability but found the damages excessive. As to liability, the Second Circuit explained:

To establish a malicious prosecution claim under New York law, a plaintiff must prove (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of probable cause for commencing the proceeding; and (4) actual malice as a motivation for defendant’s actions. . . . .

As to the first element, the Second Circuit held that the MTA’s issuance of a DAT to Stampf constituted “the initiation or continuation of a criminal proceeding.” It explained:

In Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, Local 10, 605 F.2d 1228, 1249-50 (2d Cir. 1979), . . . this court concluded that a New York court would rule that the issuance of [a Desk] Appearance Ticket commences a prosecution for purposes of determining whether an action for malicious prosecution lies. The Rosario court reasoned:

[When a DAT is issued,] the accused bears the inconvenience and expense of appearing in court and, perhaps more important, is subject to the anxiety induced by a pending criminal charge. Moreover, if others learn that charges have been lodged against the accused, his character is no less traduced because the accusation is contained in an Appearance Ticket rather than in a summons.

Trigg urges us to reject our holding in Rosario in light of the subsequent New York Civil Court decision in McClellan v. New York City Transit Authority, 444 N.Y.S.2d 985 (Civ. Ct., Kings Co. 1981). McClellan ruled that the issuance of a D.A.T. by the police, without a concomitant filing of an accusatory instrument, or other judicial intervention, is not the commencement of a criminal action and cannot support a cause of action for malicious prosecution. The court noted its respectful disagreement with the United States Court of Appeals for the Second Circuit.

However, the Appellate Division, Fourth Department has explicitly declined to follow McClellan and instead adopted Rosario’s reasoning, holding that a DAT was sufficient to support a claim of malicious prosecution. See Snead v. Aegis Sec., Inc., 482 N.Y.S.2d 159, 160-61 (4th Dep’t 1984). Likewise, in reversing the dismissal of a malicious prosecution claim, the Third Department, citing Snead, treated the issuance of a DAT as constituting initiation of a criminal proceeding. Allen v. Town of Colonie, 583 N.Y.S.2d 24, 26 (3d Dep’t 1992).

Trigg also relies on the Second Department’s ruling in Stile v. City of New York, 569 N.Y.S.2d 129 (2d Dep’t 1991), which dismissed a malicious prosecution claim on the ground that such a claim may arise only after an arraignment or indictment or some other evaluation by a neutral body that the charges were warranted. However, Stile is not on point because the plaintiff in that case was not issued a DAT or any other command to appear in court.

We recognize that several courts of first instance, following the language of Stile, have ruled that a DAT does not initiate a criminal proceeding. Nonetheless, in view of the fact that the Second Department has never held that a DAT does not initiate a criminal proceeding for the purposes of a malicious prosecution claim, and that the Third and Fourth Departments in Snead and Allen held, in accordance with Rosario, that it does, we adhere to the position we took in Rosario that, under New York law, the issuance of a DAT sufficiently initiates a criminal prosecution to sustain a claim of malicious prosecution.

(Internal quotations and citations omitted).

The Second Circuit rejected the argument that Trigg “played [no] role in the issuance of the DAT,” holding that “[i]n order to initiate a criminal proceeding for the purposes of a malicious prosecution claim, Trigg need not have explicitly named each element of a particular crime[ and i]nstead, it must be shown that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act,” something which she clearly did.

Finally, the Second Circuit rejected the argument that “the proceeding” against Stampf did not terminate in her favor, explaining that a “dismissal without prejudice qualifies as a final, favorable termination if the dismissal represents the formal abandonment of the proceedings by the public prosecutor.”

Second Circuit Affirms EDNY Award Of Attorneys’ Fees Against Civil Rights Plaintiff

On July 21, 2014, the Second Circuit issued a decision in Carter v. Incorporated Village of Ocean Beach, 13-815-CV, affirming an award by the EDNY of attorneys’ fees to defendants in a civil rights action.

In Carter, the “[p]laintiffs, five former seasonal and part-time police officers . . . pursued a variety of wrongful termination and defamation claims against” a collection of defendants, including Suffolk County and several of its employees and agencies (the “County Defendants”). The plaintiffs dismissed some of their claims and the EDNY “granted summary judgment to all Defendants” on the remaining claims. After that ruling was affirmed by the Second Circuit, the EDNY “awarded attorney’s fees and costs to the County Defendants.” The plaintiffs appealed. The Second Circuit affirmed.

One issue raised by the plaintiffs was that the EDNY awarded fees to the County Defendants on claims that were not addressed by the EDNY summary judgment decision. The Second Circuit rejected the argument, explaining:

Plaintiffs rely on Nemeroff v. Abelson, 620 F.2d 339, 350‐51 (2d Cir. 1980) (per curiam), which observed that generally the defendant is not considered the prevailing party when, as here, there is a voluntary dismissal of the action by the plaintiff with prejudice. Plaintiffs argue that they therefore cannot be held liable for any fees and costs that the County Defendants would have incurred anyway to defend against the claims that were dismissed voluntarily. But Nemeroff’s general statement of fee-shifting law was dictum because the order of dismissal in that case expressly reserved defendants’ right to move for costs. The court had no occasion to apply the rule it posited. Moreover, the only authority Nemeroff cited, Mobile Power Enterprises, Inc. v. Power Vac, Inc., 496 F.2d 1311, 1312 (10th Cir. 1974), has since been overruled by a unanimous en banc Tenth Circuit, which explained that Mobile Power was illogical, a misreading of both the Federal Rules and earlier precedent, and contrary to the decisions of most other courts. Nemeroff is also in tension with subsequent case law from the Supreme Court. In Buckhannon, the Supreme Court held that, to prevail for purposes of attorney’s fees, a party (the plaintiff in that case) must have gained through the litigation a material alteration of the legal relationship of the parties. A voluntary dismissal of an action with prejudice works such alteration, because it constitutes an adjudication on the merits for purposes of res judicata, and any action so dismissed could not be brought again. Because the Nemeroff dictum suggests to the contrary, and has no redeeming justification, we reject it.

(Internal quotations and citations omitted) (emphasis added). Having dealt with the precedent of Nemeroff, the Second Circuit went on to affirm because the combination of their victory on summary judgment and the voluntary dismissal meant that “the victory for the County Defendants was total,” and that the plaintiffs “are barred by res judicata from relitigating any of” their claims.

With respect to the plaintiffs’ state law claims, over which the EDNY declined to exercise jurisdiction (and thus which were not determined on the merits by the EDNY), the Second Circuit explained:

Other courts have ruled that a declination to exercise supplemental jurisdiction is insufficient to confer prevailing party status on a defendant, since those claims could later be refiled. In the circumstances of this case, however, a state court had dismissed the state law claims on the pleadings before the district court resolved the motion for attorney’s fees in the federal case. Accordingly, there was no chance that these claims would be refiled, and the defendants are properly considered prevailing parties on these claims. Moreover, the state law claims against the County Defendants were frivolous for the same reason that the federal claims were frivolous: the County Defendants had nothing to do with the alleged improper termination and the defamation underlying Plaintiffs’ complaint.

Plaintiffs argue that even if the state law claims were frivolous, fees cannot be imposed without adjudication of these claims by the federal court. This argument is implicitly at odds with [the Supreme Court’s decision in] Fox, in which the district court granted summary judgment on the federal claims (which were frivolous) and remanded the state claims (which were not). The issue was how to allocate between work associated with the former and work associated with the latter; the Supreme Court held that plaintiffs could be liable only for costs and fees that the defendant would not have incurred but for the frivolous claims. If Plaintiffs were correct, there would have been no need in Fox to draw a line between claims that were frivolous and those that were not: claims remanded to state court would never be subject to fee-shifting.

(Internal citations omitted). Finally, as to the plaintiffs’ argument that “no fees should have been awarded as to all their” claims other than federal civil rights claims, the Second Circuit explained that:

The state claims in Fox were not specifically listed in § 1988. Under Plaintiffs’ logic, the Court would have disposed of the appeal by explaining that fees associated with those claims were unavailable, without reference to frivolousness. More importantly, Plaintiffs’ argument distorts the text of § 1988, which provides that in any action or proceeding to enforce a federal civil rights provision, the prevailing party may be entitled to fees. Plaintiffs’ action sought to enforce (inter alia) federal civil rights provisions, and the County Defendants prevailed.

(Internal quotations omitted).