2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-15-2002

Murphy v. Housing Auth & Urban

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3426

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Recommended Citation

"Murphy v. Housing Auth & Urban" (2002). 2002 Decisions. Paper 652.

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 NOT PRECEDENTIAL 

 THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 01-3426 and 01-3572 

 ___________ 

 TODD MURPHY; ROSEANN MURPHY, husband and wife 

 v. 

 HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE 

CITY OF ATLANTIC CITY, a New Jersey municipal corporation; JOHN GLOWACKI, 

an individual; JOHN J. MCAVADDY, JR., an individual; JOHN P. WHITTINGTON, an 

individual; JOHN DOES 1 THROUGH 15, inclusive, fictitious named defendants, 

 jointly, severally, and in the alternative 

 Clifford L. Van Syoc, Appellant at No. 01-3426 

 (Pursuant to F.R.A.P. 12(a)) 

 Housing Authority and Urban Redevelopment Agency 

 Of the City of Atlantic City; John Glowacki; 

 John J. McAvaddy, Jr.; John P. Whittington 

 Appellants at No. 01-3572 

 ___________ 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. Civil No. 97-cv-01558) 

 District Judge: The Honorable Stephen M. Orlofsky 

 ___________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 June 7, 2002 

 

 BEFORE: NYGAARD, BARRY, and MAGILL, Circuit Judges. 

 (Filed: October 16, 2002) 

 ___________ 

 OPINION OF THE COURT 

 ___________ 

NYGAARD, Circuit Judge. 

 Todd and Roseann Murphy, represented by Clifford Van Syoc, sued the 

Housing Authority of Atlantic City, New Jersey, for, among other allegations, reverse 

race and sex discrimination in violation of 42 U.S.C. 1983 and Title VII. The District 

Court found that Murphy failed to establish a prima facie case for any discrimination and 
granted summary judgment in favor of the Housing Authority. Murphy v. Housing 

Authority, 32 F.2d 753 (D.N.J. 1999). Murphy appealed and we affirmed that decision on 

January 31, 2000. Murphy v. Housing Authority, 208 F.3d 206 (3d Cir. 2000). 

Subsequently, the Housing Authority, pursuant to 28 U.S.C. 1927, filed an application 

for fees, costs and sanctions in the District Court, alleging frivolous litigation and 

frivolous appeal. The District Court granted the Housing Authority’s motion in part, 

awarding the Authority $56,000 in fees and $2,300 in costs to be paid by Attorney Van 

Syoc for unreasonably and vexatiously multiplying litigation for the period up to the grant 

of summary judgment. The Court, however, declined to award damages for filing a 

frivolous appeal, holding that any such award was more appropriately handled by this 

court pursuant to a Rule 38 motion. Murphy v. Housing Authority, 158 F. Supp.2d 438 

(D.N.J. 2001). Both parties have appealed. Van Syoc argues that imposing sanctions 

against him was an abuse of discretion in that there was no clear finding of bad faith on 

his part. The Housing Authority argues that the District Court’s refusal to award damages 

for filing a frivolous appeal was in error. We will affirm. 

 I. 

 Van Syoc argues that the District Court abused its discretion by imposing 

sanctions, and by making numerous clear errors in its finding of bad faith. His arguments 

are specious. 28 U.S.C. 1927 gives a District Court the authority and discretion to levy 

expenses, costs and fees against any attorney "who so multiplies the proceedings in any 

case unreasonably and vexatiously." We have previously held that "a bad faith finding is 

required as a precondition to the imposition of attorneys’ fees under section 1927." Baker 

Industries, Inc. v. Valley Fair, 932 F.2d 204, 208 (3d Cir. 1985). Although bad faith may 

be inferred from the record, here, the District Court found that Van Syoc acted in bad 

faith for the following reasons: 

 (1)Mr. Van Syoc’s pursuit of baseless claims, the frivolous nature of which 

 he should have been aware by, at the latest, the Defendants’ filing of their 

 motion for summary judgment on August 17, 1998; and (2) Mr. Van Syoc’s 

 assertion of Roseann Murphy’s per quod claim under the New Jersey Law 

 Against Discrimination, N.J.S.A. 10.5-1 et seq., and Title VII, 42 U.S.C. 

 2000e et seq., when both federal and New Jersey state courts had already 

 held that per quod claims were not cognizable under either of those sources 

 of law. 

Murphy, 158 F. Supp.2d at 446-47. This finding was not clearly erroneous and we will 

affirm. 

 II. 

 The Housing Authority argues that the District Court erred as a matter of 

law when it denied the Authority’s motion for damages from Attorney Van Syoc’s 

frivolous appeal to this Court. We disagree. Quoting the D.C. Circuit, the District Court 

wrote that, "it is for the Court of Appeals, not the district court, to decide whether Rule 38 

costs and damages should be allowed in any given case." Murphy, 158 F.2d at 451 n. 3 

(quoting In re American President Lines, 779, F.2d 714, 717 (D.C. Cir. 1995)). Although 

we have, on occasion, remanded a Rule 38 motion to the District Court for it to assist us 

by holding a hearing to make findings on Rule 38 motions, here we have not done so and 

the court correctly deferred to us. We will affirm. 

 Conclusion 

 In sum, and for the foregoing reasons, we will affirm the judgment of the 

District Court entered on August 27, 2001. 

_________________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Richard L. Nygaard 

 Circuit Judge 

 THE UNITED STATES COURT OF APPEALS 
 FOR THE THIRD CIRCUIT 

 ___________ 

 Nos. 01-3426 and 01-3572 

 ___________ 

 TODD MURPHY; ROSEANN MURPHY, husband and wife 

 v. 

 HOUSING AUTHORITY AND URBAN REDEVELOPMENT AGENCY OF THE 

CITY OF ATLANTIC CITY, a New Jersey municipal corporation; JOHN GLOWACKI, 

an individual; JOHN J. MCAVADDY, JR., an individual; JOHN P. WHITTINGTON, an 

individual; JOHN DOES 1 THROUGH 15, inclusive, fictitious named defendants, 

 jointly, severally, and in the alternative 

 Clifford L. Van Syoc, Appellant at No. 01-3426 

 (Pursuant to F.R.A.P. 12(a)) 

 Housing Authority and Urban Redevelopment Agency 

 Of the City of Atlantic City; John Glowacki; 

 John J. McAvaddy, Jr.; John P. Whittington 

 Appellants at No. 01-3572 

 ___________ 

 ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. Civil No. 97-cv-01558) 

 District Judge: The Honorable Stephen M. Orlofsky 

 ___________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 June 7, 2002 

 

 BEFORE: NYGAARD, BARRY, and MAGILL, Circuit Judges. 

 ___________ 

 JUDGMENT 

 ___________ 

 This cause came to be considered on the record from the United States 

District Court for the District of New Jersey and was submitted pursuant to Third Circuit 

LAR 34.1(a) on June 7, 2002. 

 On consideration whereof, it is now here ORDERED AND ADJUDGED by 

this Court that the order of the said District Court entered on August 27, 2001, be, and the 

same is hereby affirmed. 

 Costs taxed against Appellant/Cross-Appellee Clifford L. Van Syoc. 

 All of the above in accordance with the opinion of this Court. 

 ATTEST: 
 _________________________________ 

 Acting Clerk 

Dated: 16 October 2002