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Azkour v. Maucort and Little Rest Twelve, Inc.

United States District Court, S.D. New York

January 18, 2017


          OPINION & ORDER


         Now before the Court is Defendants' motion for sanctions. (Doc. No. 283 at 3.) For the reasons set forth below, the Court grants Defendants' motion and dismisses this case with prejudice.

         I. Background

         Plaintiff commenced this action on August 8, 2011, alleging that the general manager of the restaurant where he was formerly employed improperly refused to rehire him or write him a letter of recommendation. (Doc. Nos. 1, 2.) The operative pleading, the Third Amended Complaint, was filed on February 2, 2012, and contains fifteen causes of action involving age discrimination, race discrimination, and retaliation, in violation of various federal, state, and local statutes. (Doc. No. 40.) Over the course of this litigation, the Court has issued rulings on Defendants' motions to dismiss (Doc. Nos. 75, 112) and for summary judgment (Doc. No. 224), resulting in dismissal of all but one of Plaintiffs claims; accordingly, the only remaining cause of action alleges that Defendants discriminated against Plaintiff on the basis on his race in violation of 42 U.S.C. § 1981. (Id.) As the record amply reflects, the Court has endeavored to adjudicate Plaintiffs case on the merits. Nevertheless, Plaintiff has a lengthy and well-documented history of abusive conduct directed toward Defendants, their counsel, and the Court, and the record is replete with the Court's attempts to manage Plaintiff's unruly behavior.[1] As far back as January 13, 2012, the Court issued an order in response to a “series of disturbing and increasingly erratic letters” received from Plaintiff, in which Plaintiff made “numerous puzzling and at times incoherent and rambling references to matters that ha[d] nothing to do with this litigation” and included “an embedded video of a Tennessee state legislator discussing the Koran.” (Doc. No. 19 at 2.) In that order, the Court also addressed several “‘very disturbing and potentially threatening email[s]' sent by Plaintiff to Defendants personally and to their counsel.” (Id.) In one of those emails, Plaintiff referred to Defendants as “coc******rs.” (Id. at 19). In another, he wrote, “I KNOW YOU BELIEVE I AM COOCOO, BUT I AM NOT, ” and “NOBODY IS GOING TO ABUSE ME ANYMORE. I'D RATHER DIE, THAN BE ABUSED.” (Id. at 17.) The Court directed Plaintiff “to refrain from any and all threatening and inappropriate communication with Defendants' counsel, ” and warned Plaintiff that “the Court will have no choice but to consider imposing sanctions against him” in the event that Plaintiff “is unwilling, or truly unable, to conduct himself in an appropriate and rational manner . . . .” (Id. at 3.)

         Unfortunately, Plaintiff's harassing communications did not end. In the months that followed, he continued to send letters to defense counsel containing “wild accusations” and “insults, ” such as one e-mail in which he wrote to defense counsel: “You must have peanuts in your skull, instead of a brain. . . . You're a retarded species. I have never seen your like in any continent.” (April 29, 2012 Letter from Plaintiff.) Plaintiff also filed a series of frivolous motions, including a motion to hold defense counsel in contempt of court (Doc. No. 52) and a motion to sanction defendants for “unlawful acts of witness intimidation and subornation of perjury” (Doc. No. 55). The Court concluded that these “repeated filings constitute[d] an abuse of the [Electronic Case Filing (“ECF”)] system” and, in an order dated May 2, 2012, revoked Plaintiff's ECF account, ordered Plaintiff to “immediately cease all communication with Defendants' counsel and the Court that is not narrowly focused on the factual and legal issues properly before the Court” (id. at 2), and warned that “[f]ailure to comply with this Order will result in sanctions being imposed against Plaintiff” (id. at 3).

         Around the same time in early 2012, Plaintiff filed a motion for the appointment of a guardian ad litem in which he represented to the Court that he suffered from “mental disabilities.” (Doc. No. 24.) The magistrate judge to whom the Court referred this case for general pretrial supervision, Judge Fox, properly denied Plaintiff's request, noting that there is “no necessary relationship between mental incompetence of the sort that would warrant the appointment of a legal representative and various forms of mental derangement or personality disorder that may cause utterly bizarre and destructive conduct in litigation.” (Doc. No. 86 at 8 (quoting Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196, 203 (2d Cir. 2003) (internal quotation marks omitted).) Even so, Plaintiff's motion injected the recurring issue of his mental health into this case. See generally Azkour v. Little Rest Twelve, No. 10-cv-4132 (RJS), 2017 WL 1609125, at *1 (S.D.N.Y. Apr. 28, 2017). Since then, Plaintiff has at times claimed to be mentally ill, suffering from “several mental health disorders” including “Adjustment Disorder, ” “Chronic Post Traumatic Stress Disorder, ” and “Major Depression Disorder” (Doc. No. 92 ¶ 121), while at other times he has denied ever making those statements and attacked the underlying medical reports that he himself submitted with his guardian ad litem request as false attempts to discredit him (see, e.g., Doc. No. 223; Doc. No. 351, No. 10-cv-4132 (“FLSA Doc. No.); Doc. No. 298 at 17:18-19 (“Dec. 18 Tr.”); Doc. No. 300 at 38:15-40:9 (“Jan. 4 Tr.”)).

         On October 7, 2013, Judge Fox denied Plaintiff's request to file a fourth amended complaint (Doc. No. 127), prompting Plaintiff to file a motion for reconsideration where he again made insulting and potentially menacing comments directed toward defense counsel (Doc. No. 131). Among other things, Plaintiff described defense counsel as a “pretentious seventh grade pupil” who “uses big words without knowing their meaning, ” and claimed that he himself possessed “skills that require federal security clearance, ” a strange comment that in context caused defense counsel unease. (Doc. No. 131 at 19, 20 n.12.) Plaintiff's motion provoked the Court to issue an order reminding Plaintiff that the Court had “already addressed in a previous order Plaintiff's inappropriate behavior, ” warning that “if Plaintiff cannot abide by normal standards of decorum, the Court must consider sanctions, ” and ordering Plaintiff to show cause why he should not be sanctioned for filing “a harassing submission.” (Doc. No. 133.) Thereafter, on April 2, 2014, the Court declined to sanction Plaintiff, but stressed that the order constituted his “last warning” before sanctions would be imposed. (Doc. No. 164.) Indeed, the Court advised Plaintiff that if he “ever again ma[de] any statement targeted towards Defendants' counsel that could, in any way, be construed as offensive or threatening, the Court [would] sanction Plaintiff $1, 000.” (Id.)

         Just weeks later, on May 1, 2014, Plaintiff again violated the Court's directive, this time in his related FLSA action, by filing a submission in which he accused defense counsel of, among other things, “lack[ing] the required sound judgment and mental capacity for an attorney to perform his duty.” (FLSA Doc. No. 205.) The Court issued a second order to show cause, which was met with an even more troubling response from Plaintiff, who accused the Court of “join[ing] [defense] counsel in his foul play.” (FLSA Doc. No. 221.) Plaintiff went on to “question counsel's judgment . . . [and] this Court's as well”; he also accused Defendants of perjury, accused the Court of “bias and hostility, ” and insisted that his offensive statements about defense counsel were factually accurate. (Id.) Plaintiff further maintained that he could not be sanctioned because the Court had not yet made a finding of “bad faith.” (Id. at 11). In light of Plaintiff's submissions, the Court sanctioned Plaintiff $2, 000 on June 2, 2014. (See FLSA Doc. No. 224.) The Court also warned Plaintiff that future violations of this sort - in any “future legal filings” - would result in sanctions of $5, 000. (Id.)

         Nevertheless, in light of the Second Circuit's clear preference to resolve cases on the merits, see Sec. & Exch. Comm'n v. Setteducate, 419 F. App'x 23, 24 (2d Cir. 2011), the Court - and Judge Fox - continued to press forward in Plaintiff's two cases. After granting Plaintiff partial summary judgment with respect to liability in the FLSA action (FLSA Doc. No. 98), the Court presided over a jury trial on the issue of damages in July 2014, at which time the jury awarded Plaintiff twelve weeks of back pay and $50, 000 in punitive damages (FLSA Doc. No. 279). Following post-trial briefing, the Court denied Plaintiff's motion for judgment as a matter of law or, in the alternative, for a new trial and Defendants' motion for judgment as a matter of law on the issue of back pay. (FLSA Doc. No. 317.) However, in light of Plaintiff's failure to put on any evidence, the Court granted Defendants' motion for judgment as a matter of law as to punitive damages, an issue for which Plaintiff carried the burden of proof. (Id.) Plaintiff thereafter appealed the Court's rulings, which were affirmed by the Second Circuit. Azkour v. Little Rest Twelve, Inc., 645 F. App'x 98, 100 (2d Cir.), cert. denied, 137 S.Ct. 390 (2016), reh'g denied, 137 S.Ct. 716 (2017).

         In this case - the discrimination/retaliation action - Defendants moved for summary judgment, which was rejected by Judge Fox in a report and recommendation that was ultimately adopted by the Court. (Doc. Nos. 200, 224.) Nevertheless, before and after these rulings, Plaintiff persisted in making ad hominem attacks against defense counsel. For example, Plaintiff filed a number of requests for this Court to sanction counsel (Doc. Nos. 207, 210), disqualify counsel (Doc. No. 213), and refer counsel to the District's Grievance Committee for suspension or disbarment (Doc. No. 215). Throughout these filings, Plaintiff made spurious and baseless allegations against defense counsel, including that he had committed criminal acts of perjury (Doc. No. 213) and engaged in bad-faith “scare tactics” and a “pattern of intimidation” against Plaintiff (Doc. No. 210 at 5). Plaintiff's malicious filings required the Court to issue an order, dated November 18, 2015, denying Plaintiff's numerous requests for sanctions and other relief. (Doc. No. 217.) In that order, the Court also made the unambiguous finding that “Plaintiff's papers [were] clearly threatening, offensive, and abusive.” (Id. at 11-12.) After explaining why Plaintiff's motions were frivolous, providing a lengthy catalog of Plaintiff's pattern of abusive tactics, and elaborating on the Court's inherent power to sanction recalcitrant litigants, the Court again put Plaintiff on firm notice that “future filings in violation of this Order may warrant sanctions and other penalties, including dismissal of this action.” (Id. at 7-13.) Although the Court declined to impose monetary sanctions at that time, the Court prohibited Plaintiff from filing any “new submissions . . . without first seeking permission . . . and obtaining an order from the Court authorizing the filing.” (Id.)

         Remarkably, on February 4, 2016, the Court received a letter from defense counsel notifying the Court of additional offensive statements made by Plaintiff in a letter submitted to the Second Circuit pertaining to his related FLSA case, which was at that point on appeal. (Doc. No. 218.) Plaintiff's submission, a request for oral argument, asserted that “not even a mentally deficient person [could] accept Judge Sullivan's rulings, ” suggested that defense counsel had an “unhinged mind, ” called “into question the sanity of [Defendants] and their counsel, ” and accused defense counsel of “dirty tactics” and “vile attacks” against Plaintiff. (Doc. No. 218-1.) Because Plaintiff's submissions to the Second Circuit did not technically violate the Court's previous order, which only applied to submissions made by Plaintiff in “this action, ” the Court declined to impose sanctions. (Doc. No. 219.) Nevertheless, the Court again reminded Plaintiff that the Court would “not tolerate future frivolous submissions in this case that are primarily intended to harass and intimidate Defendants, their counsel, or the Court.” (Id. at 2.)

         In the fall of 2016, Plaintiff unleashed a new series of letters in the FLSA action that were full of invective and clearly in violation of the Court's earlier order requiring Plaintiff to obtain the Court's permission before filing any documents. (FLSA Doc. Nos. 349, 351, 352.) In one such submission - ostensibly seeking reconsideration of the Court's prior order denying his motion for judgment as a matter of law - Plaintiff asserted that defense counsel had “maliciously used [Plaintiff's] alleged mental health condition to initiate criminal proceedings” against him and “denied [Plaintiff] access to the courthouse building on false allegations of violence due to mental illness.” (FLSA Doc. No. 351.) Among the targets of Plaintiff's tirades was the physician who signed a report attached to Plaintiff's own motion for the appointment of a guardian ad litem, who Plaintiff accused of “fraudulently” diagnosing him with “major depressive disorder, ” “post-traumatic stress disorder, ” “delusional disorder, ” “alcohol disorder, ” and “chronic paranoid schizophrenia.” (Id. at 3; Doc. No. 224 at 25.) Notwithstanding the fact that Plaintiff himself had introduced these documents into the record, Plaintiff now accused the physician of “fantastically misrepresenting facts, ” deliberately misdiagnosing him, and of being an “unhinged” individual. (FLSA Doc. No. 351 at 3 & n.6.) In an order dated July 14, 2017, the Court noted that Plaintiff had continued his pattern of making baseless accusations against third parties, and although the Court again declined to impose sanctions on Plaintiff, it nevertheless reiterated that “no further violations of its orders or threatening and insulting submissions of any kind” would be tolerated. (Doc. No. 224.) The Court warned that failure to comply with the Court's order would result in dismissal of this action. (Id.) This marked the seventh time that Plaintiff had been threatened with sanctions, including the ultimate sanction of dismissal. (See Doc. Nos. 19, 60, 133, 164, 217, 219, 224.)

         II. Recent Events

         On October 24, 2017, the Court issued an order scheduling a trial in this matter to commence on January 8, 2018. (Doc. No. 234.) Since then, Plaintiff has continued to flout the Court's unambiguous orders and make baseless accusations against the Court and defense counsel. For example, after the deadline for pretrial submissions elapsed, Plaintiff filed more than a dozen letters requesting various Court actions. Plaintiff also issued trial subpoenas to third parties previously unidentified in this litigation, thus circumventing the pretrial order's requirement that all trial witnesses be identified by November 17, 2017. (Id. at 3.) The Court was forced to hold a pretrial conference on December 18, 2017 - significantly earlier than originally scheduled - because Plaintiff's trial subpoenas not only surprised the Court and defense counsel, but also third parties who were inappropriately served with such subpoenas.

         At the December 18, 2018 conference, the Court ruled on the admissibility of the testimony of the witnesses subpoenaed by Plaintiff and unambiguously instructed Plaintiff that he would not be permitted to call expert witnesses who had not been properly noticed during discovery. (Dec. 18 Tr. 18:16-18 (“[W]e're not going to be having experts in this case because nobody has noticed any experts in this case.”) The Court also made clear that the parties were not “redoing discovery” because “discovery is over.” (Id. 30:2.) Even so, Plaintiff insisted on pursuing the issue further, at which point the Court said, “Again, I thought I made it clear. . . . [T]here is no relevance to expert testimony in this case. It seems to me that you haven't given notice of your desire to call experts in this case. So for those reasons you'[re] precluded from introducing that evidence, for both those reasons. . . . There are not going to be any experts testifying.” (Id. 33:22-34:4.)[2]

         Notwithstanding the Court's clear - and repeated - rulings, Plaintiff deliberately defied the Court's orders. Two days after the conference, Plaintiff filed a “Notice of Rule 30(b)(6) Deposition” directed toward an expert witness whose testimony the Court had already explicitly precluded during the December 18, 2017 pretrial conference. (Doc. No. 269.) The docket also reflected that, as of December 20, 2017, Plaintiff had requested the issuance of another trial subpoena by the Pro Se Intake Office. And on December 22, 2017, Plaintiff again subpoenaed witnesses whose testimony the Court had already precluded at the initial pretrial conference. (Doc. Nos. 284, 285, 286.) Plaintiff's December 20, 2017 submission and the Pro Se Intake Office's docket entry prompted the Court to issue another order directing Plaintiff to cease subpoenaing third parties without prior approval from the Court and requiring that Plaintiff file a premotion letter with the Court prior to filing any additional “motions.” (Doc. No. 273.)[3] This directive was largely duplicative of the Court's November 18, 2015 order, which instructed Plaintiff not to file any ...

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