Akman v. Pep Boys Manny Moe & Jack of Delaware Inc.

Filing 47

MEMORANDUM & ORDER ADOPTING IN PART, REJECTING IN PART, 41 REPORT AND RECOMMENDATION for 37 Motion for Sanctions filed by Pep Boys Manny Moe & Jack of Delaware Inc. As set forth in the attached Memorandum & Order, the Court adopts Magistrate Jud ge Roanne Mann's Report & Recommendation in part and rejects it in part. Defendant's motion to dismiss the Complaint with prejudice is denied. Pursuant to Local Rule 1.5(f), the Court is referring this case to Chief Judge Carol Bagley Amo n for referral to the Committee on Grievances for possible disciplinary proceedings. Mr. Gluck is hereby held in civil contempt of court. Defendant shall submit its application for fees and costs within thirty days of this Memorandum & Order. Mr. Gluck shall submit any opposition thereto no later than fourteen days thereafter. Mr. Gluck is directed to serve a copy of the Report & Recommendation along with this Court's Memorandum & Order on Plaintiff and to file the Affidavit of Service with the Court. Ordered by Judge Margo K. Brodie on 5/21/2013. (Rugani, Meredith)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
MOHAMMAD AKMAN,
Plaintiff,
v.

MEMORANDUM & ORDER
11-CV-3252 (MKB)

PEP BOYS MANNY MOE & JACK OF
DELAWARE, INC., d/b/a PEP BOYS AUTO,
Defendant.
----------------------------------------------------------------x
MARGO K. BRODIE, United States District Judge:
Plaintiff Mohammad Akman filed the above-captioned action on July 5, 2011, alleging
violations of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights
Law. Defendant Pep Boys Manny Moe & Jack of Delaware, Inc., doing business as Pep Boys
Auto, has repeatedly moved to dismiss this action for failure to prosecute, as a result of
Plaintiff’s repeated failures to comply with court orders. On December 4, 2012, Defendant filed
a motion for sanctions. On December 17, 2012, after Plaintiff’s counsel disregarded another
court order, Defendant clarified that it sought sanctions and the dismissal of this action. On
January 18, 2013, Magistrate Judge Roanne Mann issued a report and recommendation (the
“Report & Recommendation”), recommending that this Court dismiss the Complaint with
prejudice, hold Plaintiff’s counsel, Joel Gluck, in contempt of court if he fails to pay the
previously-imposed sanctions and refer Mr. Gluck’s actions to the relevant attorney disciplinary
committee for disciplinary action. Plaintiff filed objections to the Report & Recommendation.1

1

The day after the objections were due, Plaintiff filed a request for a one-day extension,
attaching his objections. (Docket Entry No. 44, Feb. 5, 2013 Pl. Mot. Extension); (Docket Entry
No. 45, Feb. 5, 2013 Pl. Obj.) (“Pl. Obj.”). The Court granted Plaintiff’s application. (Feb. 5,
2013 Order.)

For the reasons set forth below, the Report & Recommendation is adopted in part and rejected in
part.
I.

Background
On June 18, 2012, Defendant filed a motion to dismiss the Complaint for failure to

prosecute due to Plaintiff’s discovery deficiencies and multiple violations of Court orders.
(Docket Entry No. 19, June 18, 2012 Def. Mot. Dismiss.) Judge Mann issued an order directing
Plaintiff to show cause, in person, on June 22, 2012, why the Complaint should not be dismissed
for lack of prosecution and for repeated violations of discovery orders and why additional
monetary sanctions should not be imposed. (Docket Entry No. 20, June 19, 2012 Order to Show
Cause.) Plaintiff’s counsel Mr. Gluck appeared on June 22, 2012, made “excuses for again
violating a court order (the 6/14/12 Minute Entry) but ha[d] no explanation for having failed to
apply to the Court for additional time.” (Docket Entry No. 21, June 22, 2012 Minute Entry.)
Defendant renewed its motion to dismiss the Complaint. On August 10, 2012, Judge Mann filed
a report and recommendation, recommending that Defendant’s motion to dismiss be denied.
(Docket Entry No. 25, Aug. 10, 2012 Report & Recommendation.) No objections were filed,
and this Court adopted Judge Mann’s report and recommendation in its entirety. (Docket Entry
No. 28, Aug. 29, 2012 Order.)
On October 16, 2012, Defendant again moved to dismiss the Complaint for lack of
prosecution because Plaintiff still had not complied with Judge Mann’s June 14, 2012 order
directing Mr. Gluck to pay monetary sanctions and had failed to comply with his discovery
obligations. (Docket Entry No. 31, Oct. 16, 2012 Def. Mot. Dismiss.) On October 31, 2012,
Judge Mann issued an order, noting that Plaintiff had not responded to Defendant’s October 16,
2012 motion to dismiss the Complaint, and directing him to do so. (Docket Entry No. 32,

2

Oct. 31, 2012 Order.) Judge Mann stated that “Plaintiff’s persistent violations of his discovery
obligations and judicial orders have been the subject of repeated applications by [D]efendant and
repeated admonitions from the Court.” (Id.) Judge Mann directed Plaintiff, “on pain of
sanctions, including but not limited to dismissal with prejudice, to respond, in writing, by
November 7, 2012, to each and every point detailed in [D]efendant’s pending motion.” (Id.)
(emphasis added.) On November 8, 2012, Plaintiff filed a response. (Docket Entry No. 33,
Nov. 8, 2012 Pl. Opp’n.) Plaintiff claimed that he had fully complied with Defendant’s
discovery demands. (Id.) Plaintiff acknowledged that the original check he had delivered to pay
the monetary sanctions had failed to clear but assured the court that he would comply with the
sanctions order within the next few weeks. (Id.)
On November 27, 2012, Judge Mann issued an order, denying Defendant’s renewed
motion to dismiss the Complaint. (Docket Entry No. 36, Nov. 27, 2012 Mem. & Order.) Judge
Mann noted that, as of November 21, 2012, Plaintiff had still not paid the monetary sanctions.
(Id. at 2.) However, Judge Mann stated that Defendant had conceded that Plaintiff had finally
complied with his discovery obligations. (Id.) Judge Mann concluded that because the
violations cited in Defendant’s motion “are largely the fault of [P]laintiff’s counsel, rather than
[P]laintiff[,] . . . the preferable course, in this Court’s view, is to deny the renewed motion to
dismiss . . . and deal separately with [P]laintiff’s counsel’s persistent flouting of court orders.”
(Id.) Judge Mann denied Defendant’s motion to dismiss the Complaint and ordered that
“Plaintiff’s counsel must, by November 30, 2012, deliver to [D]efendant a certified check or
bank check in the amount of the June 2012 check that was returned for insufficient funds.” (Id.
at 3.) Mr. Gluck did not comply with this order.

3

On December 4, 2012, Defendant moved for sanctions or any other relief that the Court
deemed reasonable under the circumstances, in light of Mr. Gluck’s repeated violations of court
orders. (Docket Entry No. 37, Dec. 4, 2012 Def. Mot. Sanctions.) On December 5, 2012, Judge
Mann ordered Mr. Gluck to show cause, in writing, by December 10, 2012, “why further
sanctions should not be imposed on him, and on his client, and why he should not be referred to
the appropriate attorney disciplinary bodies, given his continued contumacious conduct.”
(Docket Entry No. 38, Dec. 5, 2012 Order to Show Cause.) Mr. Gluck did not respond to the
Order to Show Cause or Defendant’s motion for sanctions. On December 17, 2012, Defendant
wrote to Judge Mann, noting that Mr. Gluck had failed to comply with the most recent court
order, and asking that its sanctions motion be granted and the action be dismissed. (Docket
Entry No. 39, Dec. 17, 2012 Def. Sanctions Reply.) On December 26, 2012, Defendant
informed Judge Mann that Mr. Gluck had still not provided the court-ordered payment and
Defendant had not had any communications with Mr. Gluck regarding the payment. (Docket
Entry No. 40, Dec. 26, 2012 Status Report.) Again, Plaintiff did not respond to Defendant’s
letter.
Judge Mann issued the Report & Recommendation on January 18, 2013. (Docket Entry
No. 41, Jan. 18, 2013 Report & Recommendation at 10.) At that time, Plaintiff had not filed any
communications with the court since Defendant had moved for sanctions on December 4, 2012,
despite Judge Mann’s December 5, 2012 Order directing Plaintiff to respond and Defendant’s
December 17 and 26, 2012 letters to the court concerning Plaintiff’s continued delinquency.
Judge Mann’s Report & Recommendation recommended that this Court dismiss the Complaint
with prejudice, hold Plaintiff’s counsel Mr. Gluck in contempt if he fails to pay the previously-

4

imposed sanctions and refer Mr. Gluck to the relevant attorney disciplinary committee for
disciplinary action. (Docket Entry No. 41, Jan. 18, 2013 Report & Recommendation at 10.)
II. Discussion
a. Standard of Review
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews the parts of the report and recommendation to which
the party objected under a de novo standard of review. Id. The district court may adopt those
portions of the recommended ruling to which no timely objections have been made, provided no
clear error is apparent from the face of the record. Id.; see also Local No. 46 Metallic Lathers
Union & Reinforcing Iron Workers Welfare Trust v. Integrated Structures, Corp., No. 11 Civ.
4159, 2012 WL 6086883, at *1 (E.D.N.Y. Sept. 25, 2012).
b. Objections to the Report & Recommendation
Mr. Gluck objects to Judge Mann’s recommendation that the Complaint be dismissed but
does not challenge the recommendation that he be held in contempt of court and reported to the
relevant disciplinary committee. (Pl. Obj. 1.) Mr. Gluck argues that Judge Mann misapplied the
balancing test set forth by the Second Circuit in United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248 (2d Cir. 2004). (Pl. Obj. 5–7.) As an initial matter, the Court notes that a district
court will generally not consider arguments that were not raised before the magistrate judge. See
Zhao v. State Univ. of N.Y., No. 04 Civ. 210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15,
2011). Plaintiff failed to respond to Defendant’s motion, even after Judge Mann issued an order
directing Plaintiff to respond. Thus, Plaintiff did not present any of the arguments raised in his

5

objections to Judge Mann, and this Court need not consider any of the arguments raised in the
objections. See Scientific Components Corp. v. Sirenza Microdevices, Inc., No. 03 Civ. 1851,
2006 WL 2524187, at *2 (E.D.N.Y. Aug. 30, 2006) (“In this district and circuit, it is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge’s report and recommendation that could have been raised before the magistrate but were
not.”). However, because Judge Mann recommended dismissal, the Court will review
Defendant’s motion de novo.
c. Involuntary Dismissal
Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.” Fed. R. Civ. P. 41(b). However, dismissal for failure to
prosecute is a “harsh remedy to be utilized only in extreme situations.” Storey v. O’Brien, 482 F.
App’x. 647, 648 (2d Cir. 2012) (quoting Drake, 375 F.3d at 254). Although dismissal under
Rule 41(b) lies within the discretion of the district court, the Second Circuit has set forth five
factors to be considered in determining whether dismissal is appropriate: (1) the plaintiff’s
failure to prosecute caused a delay of significant duration; (2) the plaintiff was given notice that
failure to comply or further delay would result in dismissal; (3) the defendant was likely to be
prejudiced by further delay; (4) the need to alleviate court calendar congestion balanced against
plaintiff’s right to an opportunity for a day in court; and (5) the efficacy of lesser sanctions.
Drake, 375 F.3d at 254; Shannon v. Gen. Elec. Co., 186 F.3d 186, 193–94 (2d Cir. 1999). No
one factor is dispositive. Drake, 375 F.3d at 254. As discussed below, a review of the factors in
this case does not warrant dismissal of the Complaint.

6

i. Responsibility and Duration
“The first factor to be examined breaks down into two parts: (1) whether the failures to
prosecute were those of the plaintiff, and (2) whether these failures were of significant duration.”
Id. at 255. It is undisputed that Plaintiff and/or Plaintiff’s counsel is solely responsible for the
failure to prosecute. With regard to duration, Plaintiff argues that discovery has not been
significantly delayed. (Pl. Obj. 3.) In recommending against dismissal in August of 2012, Judge
Mann noted that at that point, the delay resulting from Plaintiff’s failures had “spanned at most
two months.” (Docket Entry No. 25, Aug. 10, 2012 Report & Recommendation at 7.) In the
Report & Recommendation approximately five months later, Judge Mann found that “the
duration of [P]laintiff’s derelictions ha[d] multiplied.” (Docket Entry No. 41, Jan. 18, 2013
Report & Recommendation at 8.)

However, as acknowledged by Defendant and Judge Mann,

Plaintiff “fully complied” with discovery by November 2012. (Docket Entry No. 36, Nov. 27,
2012 Mem. & Order). Thus, the only continued failure is on the part of Plaintiff’s counsel Mr.
Gluck, who has yet to provide Defendant with the court-ordered check. (Id.) This factor does
not weigh in favor of dismissal.
ii. Notice
Plaintiff concedes that he was given notice that failure to comply with court orders and
further delay would result in dismissal. (Pl. Obj. 4.) This factor weighs in favor of dismissal.
iii. Prejudice
Plaintiff argues that Defendant has not been prejudiced and will not suffer any prejudice
from further delay. (Pl. Obj. 4.) Plaintiff claims that the “inability of the Plaintiff’s counsel to
provide a replacement check is anticipated to be remedied shortly, and Plaintiff’s counsel is
prepared to accept further legal costs associated with Defendant’s subsequent motion.” (Pl.

7

Obj. 4.) However, Defendant has repeatedly had to file motions with the Court in order to obtain
discovery from, and other actions by, Plaintiff to which Defendant is entitled. Between May and
December 2012, Defendant has had to file five motions for failure to prosecute and/or sanctions
because of Plaintiff’s failure to comply with his discovery and other obligations. (Docket Entry
No. 12, May 24, 2012 Def. Mot. Compel); (Docket Entry No. 15, June 6, 2012 Def. Mot.
Dismiss); (Docket Entry No. 19, June 18, 2012 Def. Mot. Dismiss); (Docket Entry No. 31,
Oct. 16, 2012 Def. Mot. Dismiss); (Docket Entry No. 37, Dec. 4, 2012 Def. Mot. Sanctions).
Those motions repeatedly resulted in court orders that Plaintiff blatantly disregarded. (Docket
Entry No. 13, May 24, 2012 Order to Show Cause) (order to show cause why Docket Entry
No. 12 Motion to Compel should not be granted; Plaintiff did not respond); (Docket Entry
No. 14, June 1, 2012 Order) (following Plaintiff’s failure to respond to order to show cause,
ordering Plaintiff, on pain of sanctions, to respond without objection to all discovery demands by
June 5, 2012 and warning Plaintiff that any further violations of court orders and/or discovery
obligations would result in imposition of monetary sanctions as well as recommendation of
dismissal; Plaintiff failed to serve discovery responses as directed); (Docket Entry No. 16,
June 6, 2012 Order to Show Cause) (warning Plaintiff that failure to timely respond to Docket
Entry No. 15 Motion to Dismiss would result in imposition of monetary sanctions as well as
recommendation of dismissal with prejudice; Plaintiff responded late, without leave); (Docket
Entry No. 36, Nov. 27, 2012 Mem. & Order) (denying Docket Entry No. 31 Motion to Dismiss,
but ordering Plaintiff’s counsel to deliver replacement check for sanctions to Defendant by
November 30, 2012; Plaintiff did not comply); (Docket Entry No. 38, Dec. 5, 2012 Order to
Show Cause) (ordering Plaintiff to respond to Docket Entry No. 37 Motion for Sanctions and
show cause why further sanctions should not be imposed, and why counsel should not be

8

referred to appropriate disciplinary bodies; Plaintiff did not respond). Plaintiff still has not
complied with the sanctions imposed by Judge Mann to reimburse Defendant for the legal fees
and costs incurred in obtaining Plaintiff’s limited compliance, and Defendant continues to incur
such expenses.
However, although it has come at unjustified cost to Defendant, Plaintiff has now fully
complied with discovery. (Docket Entry No. 36, Nov. 27, 2012 Mem. & Order). Overall, this
factor weighs slightly in favor of dismissal.
iv. Court Congestion
Plaintiff agrees with Judge Mann’s finding that “balancing the court’s calendar
congestion against . . . [P]laintiff’s right to assert his claims does not weigh in favor of
dismissal.” (Pl. Obj. 4.) The Court agrees that this factor does not weigh in favor of dismissal.
v. Efficacy of Lesser Sanctions
Plaintiff objects to Judge Mann’s conclusion that lesser sanctions have not been effective.
(Pl. Obj. 5.) Plaintiff argues that after the imposition of monetary sanctions “Plaintiff complied
with discovery demands, appeared for deposition and has attempted and will continue to attempt
to satisfy the monetary sanctions while still maintaining a functioning office.” (Pl. Obj. 5.) As
Mr. Gluck concedes, however, he has not paid the monetary sanctions that were imposed on
June 14, 2012. Moreover, in his objections, Mr. Gluck fails to acknowledge that the underlying
conduct forming the basis of the dismissal recommendation is his repeated, willful and persistent
failure to comply with court orders. Since June 14, 2012, when monetary sanctions were
imposed, Plaintiff’s counsel has continued to ignore court orders. (Docket Entry No. 18,
June 14, 2012 Order) (ordering Plaintiff, on pain of sanctions, to send authorizations to Defense
counsel that day, and serve remaining outstanding discovery responses the next day; Plaintiff did

9

not comply); (Docket Entry No. 36, Nov. 27, 2012 Mem. & Order) (ordering Plaintiff’s counsel
to deliver replacement check for sanctions to Defendant by November 30, 2012; Plaintiff did not
comply); (Docket Entry No. 38, Dec. 5, 2012 Order to Show Cause) (ordering Plaintiff to show
cause why further sanctions should not be imposed, and why counsel should not be referred to
appropriate disciplinary bodies; Plaintiff did not respond). According to Plaintiff, “the only
remaining problem, which Plaintiff does not minimize, is his attorney’s failure to pay sanctions.”
(Pl. Obj. 6.) Clearly the lesser sanctions imposed have not instilled in Mr. Gluck respect for the
orders of this Court.
Plaintiff argues that the Court has “other less harsh remedies, including a dismissal
without prejudice or alternatively issuing an order directing that a Pre Trial Conference not be
scheduled until Plaintiff covers past monetary sanctions.” (Pl. Obj. 4.) Both of these proposed
remedies would cause substantial prejudice to Defendant and do not address Plaintiff’s repeated
contempt for this Court’s orders. These alternatives will simply provide Plaintiff with the
outcome he desires — more time to pay the sanctions imposed at his leisure and the ability to
continue this action when he is ready to do so, further delaying this litigation to the detriment of
Defendant.
Plaintiff’s counsel also proposes a confession of judgment, stating that he “has no
objection to confession of judgment for the monetary sanctions, permitting the [D]efendant to
proceed to enforce a judgment for monetary sanctions.” (Pl. Obj. 4.) Plaintiff argues that if such
a judgment is entered, Defendant will not have to incur any additional expenses for motions to
secure payment of existing sanctions. (Pl. Obj. 5.) Plaintiff claims that “[r]ecovery by way of
routine collection efforts will spare . . . Defendant[]s further legal expenses to secure the
payment of past sanctions without impairing . . . [P]laintiff’s right to have his claims heard.”

10

(Id.) Plaintiff’s suggestion that Defendant should be forced to commence collection actions in
order to recover the monetary sanctions, payment of which has been repeatedly ordered by Judge
Mann, only further demonstrates Plaintiff’s willful disregard for the orders issued by the judges
of this Court.
Though not listed as one of the Drake factors, the Second Circuit in Drake noted that
“apportionment of blame between counsel and client” is appropriately considered when
assessing the efficacy of lesser sanctions. Drake, 375 F.3d at 255. “The Second Circuit
encourages courts to assess whether it is the client or the attorney who is the cause of the
delays. . . . The more the delays are caused by the attorney as opposed to a client, the more a
court should attempt to impose lesser sanctions rather than dismissal.” Barney v. Consol. Edison
Co. of N.Y., No. 99 Civ. 823, 2007 WL 952035, at *4 (E.D.N.Y. Mar. 28, 2007); see also
Mitchell v. Lyons Prof’l. Servs., Inc., 708 F.3d 463, 469 (2d Cir. 2013) (same). As egregious as
Plaintiff’s blatant disregard for court orders has been, Judge Mann determined that Plaintiff’s
counsel, rather than Plaintiff, is largely the source of the continued problems. (Docket Entry
No. 36, Nov. 27, 2012 Mem. & Order at 2.) Because the blame is properly placed on the
shoulders of counsel, this Court should attempt to impose a lesser sanction than dismissal of the
Complaint. See Barney, 2007 WL 952035, at *4. One such lesser sanction is attorney discipline.
Plaintiff’s counsel offered no objection to Judge Mann’s recommendation that he be reported to
the relevant attorney disciplinary committee. (See generally Pl. Obj.) Pursuant to Local
Rule 1.5(f) of the Local Rules of the U.S. District Courts for the Southern and Eastern Districts
of New York, district judges may refer any matter to the Chief Judge for referral to the
Committee on Grievances to consider the imposition of discipline or other relief. Although the
conduct of Mr. Gluck in ignoring Judge Mann’s orders has been egregious, dismissal of the

11

Complaint with prejudice where the continued failure to comply with court orders is attributable
to Mr. Gluck rather than Plaintiff would be unduly harsh. Accordingly, the Court rejects the
portion of Judge Mann’s Report & Recommendation recommending the dismissal of the
Complaint with prejudice. The Court adopts the portion of the Report & Recommendation
recommending that Plaintiff’s counsel Mr. Gluck be referred to Chief Judge Carol Bagley Amon
for referral to the Committee on Grievances for disciplinary action, and, as discussed below, that
he be held in contempt of court for his failure to comply with Judge Mann’s orders.
d. Contempt of Court
Plaintiff does not object to Judge Mann’s recommendation that he be held in contempt of
court. (See generally Pl. Obj.) This Court “has the inherent power to hold a party in civil
contempt in order ‘to enforce compliance with an order of the court or to compensate for losses
or damages.’” Powell v. Ward, 643 F.2d 924, 931 (2d Cir. 1981) (quoting McComb v.
Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). “A party may be held in civil contempt for
failure to comply with a court order if (1) the order the contemnor failed to comply with is clear
and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor
has not diligently attempted to comply in a reasonable manner. It need not be established that
the violation was willful.” Cold Stone Creamery, Inc. v. Gorman, 361 F. App’x 282, 287 (2d
Cir. 2010) (quoting Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Tech.,
Inc., 369 F.3d 645, 655 (2d Cir. 2004) (internal quotation marks and citations omitted)).
As demonstrated above, Mr. Gluck has failed to comply with repeated court orders. Most
notably, on November 27, 2012, Judge Mann ordered that “Plaintiff’s counsel must, by
November 30, 2012, deliver to [D]efendant a certified check or bank check in the amount of the
June 2012 check that was returned for insufficient funds.” (Docket Entry No. 36, Nov. 27, 2012

12

Mem. & Order.) Judge Mann’s order was clear and unambiguous. Proof of Mr. Gluck’s noncompliance is clear and convincing. Mr. Gluck admits “that he has failed to provide the
[D]efendant with a replacement check.” (Pl. Obj. 2.) Mr. Gluck argues that his noncompliance
is not willful, but rather is the result of “severe financial distress.” (Docket Entry No. 45 Ex. 4,
Feb. 4, 2013 Aff. in Support of Pl. Obj.) However, noncompliance need not be willful to warrant
a holding of contempt. Cold Stone Creamery, 361 F. App’x at 287. Moreover, Mr. Gluck has
not demonstrated an inability to pay. He has submitted nothing other than his own assertions of
distress to support his claim of lack of funds. Counsel’s bare assertions are not sufficient to meet
his burden. See Am. Honda Motor Co., Inc. v. V.M. Paolozzi Imports, Inc., No. 10 Civ. 955,
2012 WL 3822132, at *6–7 (N.D.N.Y. Sept. 4, 2012) (finding that the defendants had “not
diligently attempted to comply in a reasonable manner” where “[r]egarding their alleged lack of
funds, [d]efendants have not filed for bankruptcy and they have submitted nothing to the Court
beyond Simao’s conclusory assertions to support their alleged financial inability to comply fully
with the Court’s Order” (citing Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995)
(“[t]he alleged contemnor bears the burden of producing evidence of his inability to comply” and
must “establish his inability clearly, plainly, and unmistakably” and failed to do so where he
failed to provide any tax returns or other documentation supporting his assertions); Capital
Servs. of N.Y., Inc. v. E–Poxy Indus., No. 01 Civ. 873, 2005 WL 2033494, at *7 (N.D.N.Y.
Aug. 17, 2005) (granting the plaintiff’s request for further sanctions due to the defendants’
failure to pay contempt judgment because contemnors had not offered sufficient documentation
supporting alleged financial inability to pay their contempt judgment where they submitted “one
tax return, one bill of sale, and one transcript of judgment”))); see also Leser v. U.S. Bank Nat.
Ass’n, No. 09 Civ. 2362, 2011 WL 1004708, at *11 (E.D.N.Y. Mar. 18, 2011) (“[t]he contemnor

13

has the burden of raising this defense and must establish an inability to pay ‘clearly, plainly, and
unmistakably’” (quoting Dell Inc. v. Compudirect, Inc., 316 Fed. App’x. 32, 34 (2d Cir. 2009)
(citing Huber, 51 F.3d at 10))).
Judge Mann’s November 27, 2012 order was clear and unambiguous, proof of Plaintiff’s
counsel’s noncompliance is clear and convincing, and Plaintiff’s counsel has not diligently
attempted to comply with the order in a reasonable manner. The Court adopts the portion of
Judge Mann’s Report & Recommendation recommending that Plaintiff’s counsel, Mr. Gluck, be
held in contempt of court.
“The imposition of civil contempt sanctions may serve dual purposes: to secure future
compliance with court orders and to compensate the party that has been wronged.” Paramedics
Electromedicina, 369 F.3d at 657 (citing Manhattan Indus., Inc. v. Sweater Bee by Banff, Ltd.,
885 F.2d 1, 5 (2d Cir. 1989); Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d
Cir. 1979)). “To the extent that a contempt sanction is coercive, the court has ‘broad discretion
to design a remedy that will bring about compliance.’” Paramedics Electromedicina, 369 F.3d
at 657 (quoting Perfect Fit Indus. v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir. 1982)). “If the
fine is compensatory in purpose, the district court has less discretion. Thus where a fine is paid
directly to the other party rather than the court, ‘the sanction should correspond at least to some
degree with the amount of damages.’” Id. at 658 (quoting King v. Allied Vision, Ltd., 65 F.3d
1051, 1062 (2d Cir. 1995)). “A sanction may . . . be both coercive and compensatory,” however
“some proof of loss must be present to justify its compensatory aspects.” Id. (quoting N.Y. State
NOW v. Terry, 886 F.2d 1339, 1353 (2d Cir. 1989)).
Here, the purpose of the civil contempt order and fine is both coercive and compensatory,
intended in part to coerce Plaintiff’s future compliance, but primarily to compensate Defendant

14

for Plaintiff’s contumacy. The Court awards Defendant the reasonable fees and costs incurred in
attempting to compel Mr. Gluck’s compliance with the November 27, 2012 order. See New York
v. U.S. Capital Funding, LLC, No. 09 Civ. 004, 2011 WL 3489914, at *8 (E.D.N.Y. Aug. 9,
2011) (awarding, as compensatory civil contempt remedy, those costs expended by party in
attempting to procure contemnor’s compliance with court orders (citing Weitzman v. Stein, 98
F.3d 717, 719 (2d Cir. 1996) (district court may award appropriate attorney fees and costs to a
victim of contempt))). Defendant shall submit an application in support of those fees and costs
within thirty days of this Memorandum and Order. Mr. Gluck will have fourteen days to
respond.
III. Conclusion
Counsel’s continuous and flagrant flouting of Judge Mann’s orders is reprehensible.
Having considered Defendant’s motion de novo, the Court adopts Judge Mann’s Report &
Recommendation in part and rejects it in part. Defendant’s motion to dismiss the Complaint
with prejudice is denied. Pursuant to Local Rule 1.5(f), the Court is referring this case to Chief
Judge Carol Bagley Amon for referral to the Committee on Grievances for possible disciplinary
proceedings. Mr. Gluck is hereby held in civil contempt of court. Defendant shall submit its
application for fees and costs within thirty days of this Memorandum and Order. Mr. Gluck shall
submit any opposition thereto no later than fourteen days thereafter. Mr. Gluck is directed to

15

serve a copy of the Report & Recommendation along with this Court’s Memorandum and Order
on Plaintiff and to file the Affidavit of Service with the Court.
SO ORDERED.
S/ MKB
MARGO K. BRODIE
United States District Judge
Dated: May 21, 2013
Brooklyn, New York

16