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Fox Industries, Inc. v. Gurovich

December 13, 2006

FOX INDUSTRIES, INC., AND CHARLES E. RICHARDSON, PLAINTIFFS,
v.
LEONID GUROVICH, A/K/A LEO GORE, CYNTHIA GRACEFFO, DELTA BALLS, LLC, STR INDUSTRIES, LLC, TITON INDUSTRIES, LLC, JOHN DOES 1-100, FICTITIOUS PERSONS, AND XYZ CORPS. 1-100, FICTITIOUS ENTITIES, DEFENDANTS.
LEONID GUROVICH, A/KA/ LEO GORE, AND STR INDUSTRIES, LLC, COUNTER/THIRD PARTY PLAINTIFFS,
v.
FOX INDUSTRIES AND CHARLES RICHARDSON, COUNTER DEFENDANTS, AND FOX CORPORATE INVESTMENTS, LTD. AND ROBERT MANN, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Platt, District Judge

MEMORANDUM and ORDER

Before the Court are defendants/third party plaintiffs' ("defendants") objections to certain rulings in U.S. Magistrate Judge Wall's Order issued on October 6, 2006 (the "Order"). For the following reasons, Magistrate Judge Wall's rulings are AFFIRMED in all respects.

BACKGROUND

The events which led to U.S. Magistrate Judge Wall's Order relate to three subpoenas served by the plaintiffs on non-parties Kramer Industries, Inc., Great Lakes Industries, Inc., and Quicken Loans, Inc., with which defendants' counsel improperly interfered. A full account of the facts relating to these subpoenas is set forth in U.S. Magistrate Judge Wall's Order, and will not be repeated at length here. In short, defendants' counsel wrote letters to the subpoenaed parties, advising them that the subpoenas were "null" and "void" as a matter of law and that the recipients "may not comply with [the] illicit subpoenas..." (Order at 15-16).*fn1 The letters asserted that the defendants would "immediately" move to quash the subpoenas and seek sanctions against the plaintiffs, and "ask[ed] that you respectfully not produce any such documents sought until such time as the [defendants] have had the opportunity to challenge and quash" the subpoenas. Despite their assertions, defendants did not "immediately" move to quash the subpoenas or otherwise communicate with the Court about the same.

Defendants succeeded in their inappropriate attempt to block the subpoenas: none of the three subpoenaed parties complied with it. In response to defendants' actions, plaintiffs movedfor sanctions, (including to disqualify defense counsel Simon Schwarz) to strike defendants' answers, counterclaims, and defenses, and to strike certain "Notices" entered by the defendants on the Court docket via the Court's ECF*fn2 system. Magistrate Judge Wall sanctioned defense counsel Simon Schwarz by ordering him to pay $1,000 for each letter sent to the subpoenaed parties, for a total of $3,000, directly to the Court for usurping the Court's authority, and directed defendants to pay plaintiffs' reasonable costs and attorneys' fees associated with their motions. Magistrate Judge Wall also ordered the Court clerk to strike certain "Notices" filed by the defendants on ECF, but declined at that time to enter the rest of the sanctions sought by plaintiffs. (Order at 2)

Consistent with their prior practice before this Court, defendants have filed untimely objections to the Order. (See, e.g., Order at 5-6) Defendants' opposition is more a barrage of baseless accusations and epithets directed at the Court, than a substantive and meritorious objection to the Order, and blatantly ignores Magistrate Judge Wall's numerous admonitions that defendants refrain from personal attacks of any nature.*fn3 Although untimely, this Court will consider the "substance" of defendants' arguments.

The defendants raise four objections to Magistrate Judge Wall's Order: (1) the imposition of a $3,000 sanction on defendants' counsel Simon Schwarz for usurping the Court's authority based on three letters sent by attorney Schwarz to the subpoenaed parties, as well as the award for attorneys' fees and costs to plaintiffs in connection with their motion triggered by defendants' improper interference with the subpoenas, are irrational, vindictive rulings, in contravention of applicable law; (2) the striking of certain "Notices" entered by defendants on the Court docket is irrational, vindictive, and in contravention of applicable law and must be vacated; (3) the denial of defendants' motion for costs and attorneys' fees as discovery sanctions and their cross-motion pursuant to 28 U.S.C. §1927 seeking to sanction the plaintiffs for unreasonably and vexatiously multiplying the proceedings is an abuse of process and must be vacated; and (4) the Court's new discovery procedures applied to the defendants in this case are a gross abuse of discretion and must be reversed. We will address each objection in turn, cognizant of the principle that "[a] trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion." Cruden v. Bank of New York, 957 F.2d 961, 972 (2d Cir. 1992)

DISCUSSION

1. The Imposition of a $3,000 Fee for Surping the Court's Authority and the Award to Plaintiffs for Reasonable Costs and Attorneys' Fees

Magistrate Judge Wall imposed a $3,000 fee on defense attorney Simon Schwarz for improperly interfering with the non-party subpoenas, and also awarded reasonable costs and attorneys' fees to the plaintiffs in connection with their motions related to defendants' interference with the subpoenas. We find that Magistrate Judge Wall's sanctions were appropriate, proper, and reasonable.

Defendants' improper interference with the three subpoenas constituted an abuse of process subject to sanctions. See Cook v. Sheldon, 41 F.3d 73 (2d Cir. 1994).*fn4 Only a Court has the power to rule on the validity of a subpoena. United States v. Sanders, 211 F.3d 711, 720 (2d Cir. 2000). Defendants attempted to usurp the Court's authority by writing to the subpoenaed parties instructing them that the subpoenas are "null" and "void" as a matter of law and should not be complied with. The sanctions by Magistrate Judge Wall were correctly imposed based not only on abuse of process grounds, but also pursuant to the inherent power of the Court to manage its affairs, which the Second Circuit has recognized exists.*fn5 DLC Mgmt. Corp. v. Town of Hyde Park, 163, F.3d 124 (135-36) (2d Cir. 1998), citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).

Magistrate Judge Wall imposed on defendants' counsel for attempted usurpation of judicial power a modest $1,000 fee for each improper letter addressed to the non-parties, for a total of $3,000. Recent Second Circuit authority confirms that this sanction is proper. See Patsy's Brand, Inc. v. I.O.B. Realty, Inc., 317 F.3d 209, 222 (2d Cir. 2003) (affirming the lower court's decision to sanction the defense attorney by imposing on him a $5,000 fine, payable into the registry of the court, pursuant to 28 U.S.C. § 1927, for his misconduct in making an improper motion to sanction the plaintiff). Moreover, in this case, which is replete with disobedience by defense counsel of the Court's orders, the fees for attempted usurpation of judicial power may be said to have a coercive effect in that they should serve as a restraint on future violations of this Court's orders. Additionally, we find that Magistrate Judge Wall's award to plaintiffs for attorneys' fees and costs is proper.

2. The Striking from the Court Docket of "Notices" Related to Schwarz's Wrongful Interference with the Subpoena Process

In response to Schwarz's improper interference with the non-party subpoenas, the plaintiffs filed a motion asking for sanctions. Magistrate Judge Wall set forth a briefing schedule concerning plaintiffs' motion. (Order at 7) In violation of the briefing schedule, defendants filed additional "Notices" after the deadline expired. Magistrate Judge Wall found defendants' "Notices"(entered as docket entries 279, 280, 281, and 283) to be unauthorized ...


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