Friedman v. Bloomberg LP et al

Filing 265

ORDER: For the reasons set forth in the attached order, Defendants' Motion to Compel Payment of Sanctions in Compliance with Court Order (ECF No. 234 ) is hereby GRANTED. (1) On or before August 12, 2022, the plaintiff shall pay the defendants $42,971.00 in good funds and file a notice by that date confirming that such payment has been made. (2) The defendants' request for reimbursement of attorney's fees and costs incurred in bringing the instant motion is granted, and they shall file an application for attorney's fees by September 7, 2022. It is so ordered. Signed by Judge Alvin W. Thompson on 07/22/2022. (Ghinaglia Socorro, F.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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DAN FRIEDMAN,
:
:
Plaintiff,
:
:
v.
:
:
BLOOMBERG, L.P., CHRISTOPHER
:
DOLMETSCH, ERIK LARSEN, MICHAEL :
HYTHA, and ANDREW DUNN,
:
:
Defendants.
:
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Civil No. 3:15-cv-443 (AWT)

ORDER RE MOTION TO COMPEL PAYMENT OF SANCTIONS
For the reasons set forth below, Defendants’ Motion to
Compel Payment of Sanctions in Compliance with Court Order (ECF
No. 234) is hereby GRANTED.
I.

BACKGROUND

On November 29, 2018, after requesting discovery from the
plaintiff on several matters, the defendants moved the court to
compel the plaintiff to produce the plaintiff’s tax returns,
resume, certain communications to his former employer or others
regarding another lawsuit brought by the plaintiff, and copies
of oral and written testimony that the plaintiff gave in that
suit. See Defs.’ Mot. to Compel Production (ECF No. 109) at 19.
The defendants also requested attorney’s fees pursuant to Rule
37. See Fed. R. Civ. P. 37(a)(5) (requiring a party, deponent,
and/or attorney to pay “reasonable expenses incurred in making

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the motion” if the motion is granted or discovery is provided
after the motion is filed). On May 3, 2019, the court ordered
the plaintiff to produce, by May 17, 2019, certain specific
communications for in camera review, a privilege log to both the
court and the defendant, and notice as to the designation status
of the requested depositions. See Order on Defs.’ Mot. to Compel
(ECF No. 137). The plaintiff failed to comply, and on May 22,
2019, the court issued an order for the plaintiff to show cause
by May 31, 2019 why sanctions should not issue against the
plaintiff for failure to comply with the court’s order. See
Order to Show Cause (ECF No. 138). On June 3, 2019, after the
deadline had passed, the plaintiff filed a statement attributing
his late filing to the fact that “counsel for Mr. Friedman was
in Europe and North Africa on three separate matters” and that a
prepared and consented-to motion to extend discovery--not filed
until eight days after the statement--was delayed due to
“intensive work on the cases abroad and the fog of jetlag upon
return.” Pl.’s Statement of Compliance and Resp. to Show Cause
Order (ECF No. 139) at 2-3. The court ultimately ruled on the
defendants’ motion to compel on August 30, 2019 and directed the
plaintiff “to turn over all communications with journalists”
since they were not privileged. Order on Defs.’ Mot. to Compel
(ECF No. 143) at 8.
In September and October 2019, the plaintiff filed several

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motions for extension of time to object to the magistrate
judge’s order under Fed. R. Civ. P. 72(a) (“A party may serve
and file objections to the order within 14 days after being
served with a copy.”). See ECF Nos. 146, 151, 153. All were
granted, and the plaintiff’s objection was due on October 14,
2019. See ECF Nos. 149, 152, 154. The objection was not filed,
nor was any motion for extension of time.
On November 27, 2019, the defendants filed a motion for an
order to show cause asking the court to order the plaintiff to
comply with the court’s Order on Defendants’ Motion to Compel
(ECF No. 143) or show cause “why sanctions should not issue
against him for his noncompliance with the Order.” Defs.’ Mot.
for Order to Show Cause (ECF No. 158) at 1. The defendants also
moved for reimbursement of attorney’s fees and costs. Id. The
plaintiff objected on December 23, 2019 and noted that he “will
be filing [his] [Rule 72] Objection and a nunc pro tunc motion
seeking leave to file contemporaneous with this opposition.”
Pl.’s Opp. to Defs.’ Rule 37 Mot. for Sanctions (ECF No. 163) at
1 n.1. It was not until January 14, 2020 that the plaintiff
filed a motion for leave to file an objection under Rule 72,
stating that counsel’s fall at an airport on October 20, 2019-six days after the Rule 72 objection was due on October 14-prevented him from filing an objection or a motion for an
extension of time by October 14, 2019. See Pl.’s Mot. for Leave

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to File Rule 72 Obj. Nunc Pro Tunc (ECF No. 166-1).
On September 14, 2020, the court denied the plaintiff’s
motion for leave to file his Rule 72 objection and concluded
that “the plaintiff has failed to provide a valid explanation
for his delay in filing an objection and cannot conclude that he
acted in good faith.” Order re Pl.’s Mot. for Leave to File Rule
72 Obj. Nunc Pro Tunc (ECF No. 184) at 7. The court also issued
an order regarding the defendants’ motion for an order to show
cause which directed the plaintiff to “comply with the Order [at
ECF No. 143] no later than September 16, 2020” and to “reimburse
the defendants for their attorneys’ fees and costs incurred in
bringing the instant motion.” Order re Defs.’ Mot. for Order to
Show Cause (ECF No. 185) at 2. The court reiterated that “the
plaintiff’s failure to file an objection or comply with the
court order was intentional and there was no valid explanation
for his failure to do so; moreover, he did not act in good
faith.” Id. at 4. Over a week after the plaintiff was required
to produce the documents as ordered, the defendants notified the
court that the plaintiff had yet again failed to comply with the
court’s orders. See Defs.’ Status Report (ECF No. 186). On
October 13, 2020, the plaintiff moved to vacate the court’s
order at ECF No. 185. See Pl.’s Mot. to Vacate (ECF No. 193).
On October 5, 2020, the defendants filed an application for
attorney’s fees and costs in the amount of $42,971.00, as

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directed by the Order re Defs.’ Mot. for Order to Show Cause
(ECF No. 185). See Defs.’ Appl. for Att’y’s Fees and Costs (ECF
No. 190) at 2. In lieu of filing a timely response, on November
3, 2020, the plaintiff advised that his motion to vacate doubled
as a response to the application for attorney’s fees and costs.
See Pl.’s Mot. for Clarification (ECF No. 200).
On January 19, 2021, the court denied the plaintiff’s
motion to vacate the order at ECF No. 185, which compelled the
plaintiff to provide discovery as ordered and directed that the
plaintiff pay the defendants’ attorney’s fees and costs. See
Order re Pl.’s Mot. to Amend/Modify Order (ECF No. 220). The
court held that the plaintiff failed to file a motion for
reconsideration in a timely manner and that it would not
exercise its discretion to waive the plaintiff’s compliance due
to the plaintiff’s course of conduct: “The plaintiff has engaged
in a pattern of simply disregarding court orders and deadlines,
which now include not moving to vacate the Order Re Defendants’
Motion for Order to Show Cause until October 13, 2020, even
though he was required to comply with that order by September
16, 2020.” Id. at 6. The court also observed that “the plaintiff
has not furnished a reasonable excuse for failing to comply with
the deadline for filing a motion for reconsideration, but rather
has cited to authority in support of his position . . . that is
clearly inapplicable, even though there is authority directly on

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point.” Id. at 6-7. The court noted that “[i]t is unfair for the
defendants to repeatedly incur the expense of addressing both
[the plaintiff’s] untimeliness and substance without knowing
whether the court will require them to reach the substance of
the motion.” Id. at 7.
In February 2021, having denied the plaintiff’s motion to
vacate, the court entered an order granting the defendants’
application for attorney’s fees and costs. See Order Awarding
Attorney’s Fees and Costs (ECF No. 223) (signed February 16,
2021 and docketed February 17, 2021) (“February 2021 order”).
The order required the plaintiff to “pay the defendants
$42,971.00 in attorney’s fees and costs within thirty days.” Id.
at 1.
The defendants filed the instant motion on October 15, 2021
because the plaintiff had not paid the amount due in accordance
with the court’s February 2021 order.
II.

DISCUSSION

The defendants move “for an order compelling Plaintiff to
immediately comply with the Court’s February 2021 order, that he
‘pay the defendants $42,971.00 in attorney’s fees and costs
within thirty days,’” as well as “attorney’s fees incurred in
bringing this motion.” Defs.’ Mot. at 1. “[I]n the event
Plaintiff continues not to comply,” the defendants also move for
“further sanctions, including daily fines or interest on the

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unpaid amounts, and, as appropriate, a finding of contempt.” Id.
A.

Payment of Attorney’s Fees and Costs

The February 2021 order is clear and unambiguous: “The
plaintiff shall pay the defendants $42,971.00 in attorney’s fees
and costs within thirty days.” Order Awarding Attorney’s Fees
and Costs (ECF No. 223) at 1. While the plaintiff did not file a
motion for reconsideration at that time, the plaintiff’s
objection to the defendants’ motion could be construed as an
untimely motion for reconsideration. See D. Conn. Civ. R. 7(c).
“A motion for reconsideration is an extraordinary request
that is granted only in rare circumstances, such as where the
court failed to consider evidence or binding authority.” Van
Buskirk v. United Grp. of Companies, Inc., 935 F.3d 49, 54 (2d
Cir. 2019). As such, motions for reconsideration “will generally
be denied unless the movant can point to controlling decisions
or data that the court overlooked in the initial decision or
order.” D. Conn. Civ. R. 7(c). “The three major grounds for
granting a motion for reconsideration in the Second Circuit are:
(1) an intervening change in controlling law, (2) the
availability of new evidence, or (3) the need to correct a clear
error or prevent manifest injustice.” Acevedo v. Sklarz, 553
F.Supp.2d 164, 167 (D.Conn. 2008) (citing Virgin Atl. Airways,
Ltd. V. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.
1992)). A decision is clearly erroneous where “the district

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court’s account of the evidence” is not “plausible in light of
the record viewed in its entirety.” Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 574 (1985). “In the context of a
motion for reconsideration, manifest injustice is defined as an
error committed by the trial court that is direct, obvious, and
observable.” Corpac v. Rubin & Rothman, LLC, 10 F.Supp.3d 349,
354 (E.D.N.Y. 2013) (internal quotation marks and citation
omitted).
Setting aside the fact that the plaintiff’s objection was
filed ten months after the order requiring payment in full by
March 2021, see D. Conn. Civ. R. 7(c)(1) (requiring motions for
reconsideration to “be filed and served within seven (7) days of
the filing of the decision or order from which such relief is
sought”), the plaintiff has not shown an intervening change in
controlling law, the availability of new evidence pertaining to
the award of attorney’s fees or costs, or the need to correct a
clear error or prevent manifest injustice. The plaintiff’s
objection “seeks solely to relitigate an issue already decided.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“[L]itigants, the public, and the courts share an interest in
the prompt and efficient administration of justice.” J. M.
Cleminshaw Co. v. City of Norwich, 93 F.R.D. 338, 360 (D. Conn.
1981). “[F]ailures of counsel to comply with applicable
discovery rules and court orders threaten that common interest,”

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and “reasonable sanctions, carefully and consistently applied,
are an appropriate means of deterring further violations and
vindicating the public interest.” Id. The plaintiff has “not
presented any legal authority . . . indicating that the Court
lacks authority to compel [the plaintiff] to comply immediately”
with the court’s order awarding attorney’s fees and costs. Li
Rong Gao v. Perfect Team Corp., 2014 WL 2465589, *5 (E.D.N.Y.
May 30, 2014). “Indeed, courts routinely require litigants to
comply with Rule 37 sanctions before litigation is completed.”
Id. To the extent the plaintiff seeks to have the court
reconsider the February 2021 order, that request is denied.
B.

Further Sanctions

The defendants request that “[i]n the event Plaintiff
continues not to comply with the Court’s Order, the Court . . .
impose further penalties, up through and including holding
Plaintiff in contempt.” Def.’s Mot. at 10. The court agrees
that, in the event the plaintiff fails to comply with this
order, further sanctions are necessary. It concludes that the
only sanction that would be effective would be dismissal of the
plaintiff’s case with prejudice.
Under Rule 41(b), “[i]f the plaintiff fails . . . to comply
with . . . a court order, a defendant may move to dismiss the
action.” Fed. R. Civ. P. 41(b). Dismissal under Rule 41(b) is “a
harsh remedy to be utilized only in extreme situations,” Jackson

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v. City of New York, 22 F.3d 71, 75 (2d Cir. 1994), as when
lesser sanctions would not be suitable, see Dodson v. Runyon, 86
F.3d 37, 40 (2d Cir. 1996). In determining whether dismissal is
warranted, a district court should consider “the duration of the
plaintiff’s failures,” “whether plaintiff had received notice
that further delays would result in dismissal,” “whether the
defendant is likely to be prejudiced by further delay,” “whether
the district judge has taken care to strike the balance between
alleviating court calendar congestion and protecting a party’s
right to due process and a fair chance to be heard,” and
“whether the judge has adequately assessed the efficacy of
lesser sanctions.” Alvarez v. Simmons Mkt. Rsch. Bureau, Inc.,
839 F.2d 930, 932 (2d Cir. 1988) (quotations and citations
omitted).
Here, the Alvarez factors all weigh in favor of dismissal
if the plaintiff fails to timely comply with this order. First,
the plaintiff will have refused to comply with the court’s clear
and unambiguous February 2021 order. Second, the plaintiff has
already received notice, in an order on an earlier motion for
sanctions, that “[f]ailure by the plaintiff to comply with the
[court’s orders] will result in . . . sanctions up to and
including dismissal of the plaintiff’s action.” Order re Defs.’
Mot. to Show Cause (ECF No. 185) at 5. Third, the defendants are
likely to be prejudiced by further delay insofar as they have

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repeatedly incurred additional attorney’s fees and costs
attempting to secure the plaintiff’s compliance with the court’s
orders despite the fact that there has been “no justification
for the plaintiff’s failure to comply.” Id. Fourth, the
plaintiff has consistently been given the chance to be heard but
has chosen to “engage[] in a pattern of simply disregarding
court orders and deadlines.” Order re Pl.’s Mot. to Amend/Modify
Order (ECF No. 220) at 6. Fifth, looking at the history of this
matter, the court concludes that lesser sanctions have not
secured, and are unlikely to secure, compliance by the
plaintiff.
Accordingly, if the plaintiff fails to timely comply with
this order, the defendants may file a motion to dismiss this
case with prejudice, and it will be granted immediately.
The court notes that it is simultaneously entering the
Order re Status Report which pertains to the failure by the
plaintiff and his counsel to pay the sanctions entered in
Friedman v. SThree plc, No. 3:14-cv-378 (D. Conn. Sept. 15,
2017). Compliance with this order does not excuse compliance
with the Order re Status Report, so to proceed with this case,
the plaintiff will have to comply with both orders.

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III. ORDERS
The court orders the following:
(1)

On or before August 12, 2022, the plaintiff shall pay the
defendants $42,971.00 in good funds and file a notice by
that date confirming that such payment has been made.

(2)

The defendants’ request for reimbursement of attorney’s
fees and costs incurred in bringing the instant motion is
granted, and they shall file an application for
attorney’s fees by September 7, 2022.

It is so ordered.

Dated this 22nd day of July 2022, at Hartford, Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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