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Adam Wiercinski v. Mangia 57

June 8, 2011

ADAM WIERCINSKI, PLAINTIFF,
v.
MANGIA 57, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Orenstein, Magistrate Judge:

MEMORANDUM AND ORDER

On May 17, 2011, I ordered plaintiff Adam Wiercinski ("Wiercinski") to show cause in writing why his case should not be dismissed for failure to obey court orders. Docket Entry ("DE") 54. Specifically, Wiercinski failed to comply with two orders, dated April 13 and 21, 2011, requiring him to certify on the docket that he had notified non-party subpoena recipients that the subpoenas had been quashed. Wiercinski also failed to comply with my order of April 21, 2011, requiring the payment of past discovery costs in the amount of $3,253.00. Finally, he failed to comply with my order of April 26, 2011, requiring him to appear in person at the May 17, 2011, pre-trial conference.

On May 20, 2011, Wiercinski responded to my order to show cause. DE 55. With respect to his failure to pay past discovery costs, he argues in part that he should be "excused pursuant to [the in] forma pauperis statute 28 U.S.C. § 1915(a)(1)" because he "has no financial means to pay" the costs. Id. at 5. Specifically, he claims that he has been unemployed since early 2008, and that aside from public assistance has "no other income or assets." DE 55-2 (Affidavit of Adam Wiercinski) ("Aff.") ¶¶ 11, 13.

The defendants question the credibility of these statements, noting that on prior occasions Wiercinski has refused to answer questions about his employment status. DE 56 (Response in Opposition) ("Opp.") at 2-3. They also argue that he has previously lied about his employment status and submitted false documents in order to defraud the federal government. Id. at 3-5. Specifically, at his first deposition in this case, invoking the Fifth Amendment, Wiercinski refused to answer the following questions: "Were you employed in any capacity in 2008?" and "Have you been employed at any point since 2007?" Id. at 2; DE 56-1, 19-24 (Opp. Ex. D, Transcript of Deposition of Wiercinski, dated December 21, 2010) ("Transcript") at 22, 24. Further, during a hearing before the New York State Division of Human Rights ("NYSDHR") in 2009, Wiercinski admitted ...


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