Calletti v. Qianyu

Filing 41

MEMORANDUM AND ORDER. For the reasons explained in the attached opinion, the Court publicly reprimands plaintiff's counsel and brings the matters addressed in this memorandum and order to the attention of the Honorable Dora L. Irizarry, Chief United States District Judge for the Eastern District of New York, for referral to the District's Committee on Grievances. Ordered by Chief Mag. Judge Roanne L. Mann on 6/7/2016.(Williams, Jennifer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------x
LAUREN CALLETTI,
Plaintiff,

-against-

MEMORANDUM
AND ORDER
14-CV-5358 (FB)

KUANG QIANYU,
Defendant.
------------------------------------------------------------x
ROANNE L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE:
Once again, this Court is constrained to address the derelictions of plaintiff’s counsel,
John J. Nonnenmacher (“Nonnenmacher”), in this personal injury action, which has now been
settled. See Electronic Order Dismissing Case (Apr. 25, 2016). The undersigned magistrate
judge previously sanctioned Nonnenmacher twice in this matter for his persistent violation of
court orders. See Minute Entry (Nov. 23, 2015) (“11/23/15 Minute Entry”), Electronic Case
Filing (“ECF”) Docket Entry (“DE”) #16; Minute Entry (Jan. 28, 2016) (“1/28/16 Minute
Entry”), DE #22. The Court now considers whether Nonnenmacher’s latest violations, which
include his failure to appear at a show-cause hearing, warrant the imposition of further
sanctions. For the reasons explained herein, the Court publicly reprimands Nonnenmacher
and brings the matters addressed in this memorandum and order to the attention of the
Honorable Dora L. Irizarry, Chief United States District Judge for the Eastern District of
New York, for referral to the District’s Committee on Grievances.

BACKGROUND
I.

The November 23, 2015 Show-Cause Hearing
On July 6, 2015, following an initial conference with the parties, this Court entered a

scheduling order, pursuant to Rule 16 of the Federal Rules of Civil Procedure. See Minute
Entry (July 6, 2015) (“7/6/15 Minute Entry”), DE #11. That scheduling order required, inter
alia, that the parties complete initial disclosures (including the provision of HIPAA
authorizations) by July 10, 2015, and that plaintiff provide medical expert disclosures by
October 5, 2015. See id.1 That order also referred the matter to court-annexed arbitration,
with the expectation that a hearing would take place following the close of fact discovery on
November 6, 2015. See id. A few weeks later, on July 21, 2015, an arbitration hearing was
scheduled for November 19, 2015. See Notice of Hearing (July 21, 2015), DE #12.
On November 17, 2015, two days before the scheduled hearing, defendant’s counsel,
Steven J. Weissler (“Weissler”), filed an application with the Court to adjourn the November
19, 2015 arbitration hearing (hereinafter the “November 17th Motion”). See Motion to
Adjourn Conference (Nov. 17, 2015) (“11/17/15 Mot.”), DE #15.2 In the November 17th
Motion, Weissler set forth a detailed history of his various unsuccessful attempts to

1

Nonnenmacher sent his firm’s associate, Miles Linefsky (“Linefsky”), to appear at the initial
conference in his place. See 7/6/15 Minute Entry. Linefsky never filed a notice of
appearance in this matter, and Nonnenmacher remained the sole counsel of record for the
duration of the case.
2

Defense counsel had filed similar motions on November 5, 2015 and November 16, 2015,
but the Court denied those applications without prejudice on procedural grounds. See
Electronic Order (Nov. 5, 2015); (Second) Electronic Order (Nov. 17, 2015).
-2-

communicate with Nonnenmacher as early as August 2015 about plaintiff’s counsel’s failure to
provide critical discovery, including the proper HIPAA authorizations. See id. at 1-2.
Weissler needed the authorizations and related medical records before conducting plaintiff’s
deposition and independent medical examination (“IME”). See id. The November 17th
Motion also provided background on Weissler’s communications with Nonnenmacher’s
assistant, “Shelly,”3 who reportedly informed Weissler on November 13, 2015 that
Nonnenmacher wanted to adjourn the November 19th arbitration hearing because he was “on
trial” and not expected to be available until after the Thanksgiving holiday. See id. at 2-3.
In response to the November 17th Motion, this Court directed plaintiff, Nonnenmacher
and his assistant Shelly to appear in person and show cause why Nonnenmacher and his client
“should not be sanctioned, and the complaint dismissed, for flouting this Court’s scheduling
orders.” Electronic Order (Nov. 17, 2015) (hereinafter, the “11/17/15 Order”). The Court
further required Nonnenmacher to “bring with him documentary proof as to his unavailability
to attend the arbitration hearing[.]” See id.
At the show-cause hearing, Nonnenmacher appeared but his client and assistant did
not. See 11/23/15 Minute Entry; Transcript of Hearing (Nov. 23, 2015) (“11/23/15 Tr.”),
DE #39. Nonnenmacher apparently never informed his client of the November 23rd showcause hearing, see 11/23/15 Tr. at 12, and, as for Shelly’s appearance, Nonnenmacher
implied at first that she had received the 11/17/15 Order late, see id. at 11. But when the
Court reminded Nonnenmacher of his earlier claim that Shelly was the one who had

3

Around the time of the November 17th Motion, a member of this Court’s staff reached out
to Nonnenmacher’s then-firm, Bader, Yakaitis & Nonnenmacher, LLP (“Bader Yakaitis”),
to speak with Shelly in order to ascertain her last name, but Shelly declined to provide it.

transmitted the 11/17/15 Order to his wife a few days prior to the conference, he altered his
story, explaining that while Shelly did have advance notice of the order, she had sent him a
text the day of the conference, advising that she would be unable to attend because of “blood
tests.” See id. at 11-12. Notably, Nonnenmacher had failed to apply to the Court to excuse
plaintiff and Shelly from attending the hearing.
Nor did Nonnenmacher proffer “documentary proof” that the upcoming arbitration
hearing conflicted with an ongoing trial that he was supposedly engaged in. Rather, he
brought a note on what purported to be Morristown Medical Center letterhead, stating that he
had been hospitalized there from November 16, 2015 through November 20, 2015. See
11/23/15 Tr. at 2-3; Morristown Medical Center Note (undated), DE #40.4 When confronted
with the discrepancy between Shelly’s November 13th statement to Weissler regarding
Nonnenmacher’s trial commitment and his hospital note, Nonnenmacher related a more
elaborate story:
According to Nonnenmacher, on Sunday, November 15, 2015, he tripped on a dog
bone at home and hit the back of his head on a porcelain counter top. See 11/23/15 Tr. at 3.
He went to Morristown Medical Center, where doctors, apparently concerned about a
concussion, conducted CT-scans, MRIs and X-rays, see id. at 3-4, and, Nonnenmacher

4

In discussing the issue with the Court, Nonnenmacher referred to Morristown Medical
Center by its former name, Morristown Memorial Hospital. See, e.g., 11/23/15 Tr. at 2. In
addition, while producing the note, which appears to contain only a partial letterhead and does
not legibly identify the note’s author, Nonnenmacher stated to the Court in passing that his
mother-in-law previously worked for that hospital. The two-sentence note does not reflect
what condition or treatment required Nonnenmacher’s alleged hospitalization.
-4-

claimed, he also “almost had a heart attack[,]” see id. at 33; but see id. at 4 (insisting he did
not have a heart attack). In essence, Nonnenmacher contended that, while he had been
scheduled to be on trial, he instead unexpectedly ended up in the hospital for four days.

Asked about the status of his trial as a result of his hospitalization, Nonnenmacher
replied that the case had settled. See 11/23/15 Tr. at 33-34. As for how the case was able to
settle while he was hospitalized, Nonnenmacher claimed that someone had been covering for
his trial. See id. at 34. He explained that that case had been brought under the auspices of
his firm, Bader Yakaitis, whereas the Calletti matter, in contrast, was being prosecuted by
Nonnenmacher as an individual. See id. However, as the Court noted, another attorney,
Linefsky – who Nonnenmacher conceded was a Bader Yakaitis associate – had appeared at the
initial conference in this case, see id. at 34-35; see also supra p. 2 n.1.
In any event, regardless of any subsequent health issue, Nonnenmacher admitted at the
hearing that, as of November 13, 2015, he knew that he was expected to go to trial in another
case yet did not seek an adjournment of the arbitration hearing in this action. See id. at 10.
More importantly, Nonnenmacher provided no excuse for having failed to respond to defense
counsel’s repeated inquires in August and September 2015 regarding discovery and the Rule
16 deadlines, nor did he proffer any justification for having failed to serve plaintiff’s medical
expert disclosures, which the Court had directed were due by October 5, 2015. See generally
11/23/15 Tr.; 7/6/15 Minute Entry.5 Nonnenmacher’s conduct essentially brought the

5

Tellingly, Nonnenmacher was on notice of defense counsel’s complaints concerning these
(continued...)
-5-

litigation to a standstill for a period of months. To be sure, at the show-cause hearing,
Nonnenmacher offered a litany of flimsy and repetitive excuses that often had little or nothing
to do with the conduct that mattered most — i.e., Nonnenmacher’s failure to comply with this
Court’s orders and to prosecute his case by responding to his adversary’s inquiries and
requests.6
It was for those reasons that the Court sanctioned Nonnenmacher in the amount of
$250.7 See 11/23/15 Minute Entry at 1. The Court additionally directed plaintiff,
on pain of further sanctions, including a preclusion order, to serve complete
and fully compliant expert records and disclosures (which were due on October
5, 2015) by close of business tomorrow, and to produce plaintiff and her
husband for depositions by January 8, 2016, and to produce plaintiff for an IME
by January 15, 2016.
See id. On December 1, 2015, the arbitration clerk set a new hearing date for February 18,
2016. See Order (Dec. 1, 2015), DE #17.

5

(...continued)
alleged deficiencies as of November 5, 2015, the date that defendant initially filed his motion
to compel. See supra p. 2 n.2. Nevertheless, Nonnenmacher made no attempt to address
those issues with his adversary or the Court prior to the show-cause hearing on November 23,
2015.
6

Often, Nonnenmacher’s excuses were grandiose certitudes that he was ultimately unable to
substantiate with any specifics. See, e.g., 11/23/15 Tr. at 12 (alleging, without supporting
medical documentation, that he was “not medically supposed” to attend the 11/23/15 hearing,
and that his wife and doctor both said, “you can’t go, you can’t go”); id. at 27, 32 (claiming
that he sent the HIPAA authorizations to a “fictitious” Allstate Insurance Company lawyer
named Karen Lawrence, but acknowledging that he failed to bring his file to court to support
that allegation); id. at 6 (claiming that the medical records and the authorizations “have been
sent [to defendant] at least seven times”); id. at 8 (same).
7

The Court ordered that the sanction be paid into the Court Administration Fund, as defense
counsel declined to seek reimbursement of his attorney’s fees for the time spent addressing
Nonnenmacher’s derelictions. See 11/23/15 Tr. at 38.
-6-

II.

The January 28, 2016 Show-Cause Hearing
On January 18, 2016, Nonnenmacher wrote to inform the Court that plaintiff’s January

8, 2016 deposition had been “delay[ed]” because “plaintiff developed an illness that prevented
her from traveling to New York.” Letter (Jan. 18, 2016), DE #18. As an attachment to his
letter, Nonnemacher supplied the Court with a stipulation signed by defense counsel that
extended the arbitration hearing date from February 18, 2016 to February 24, 2016. See
Stipulation, DE #18 at 2. The Court denied the parties’ request to adjourn the hearing date.
See Electronic Order (Jan. 18, 2016).
Two days later, defense counsel submitted a letter to the Court setting forth a time-line
of his largely unsuccessful attempts to speak with Nonnenmacher directly about his failure to
comply with the 11/23/15 Order. See Letter Motion (Jan. 20, 2016) (“Def. 1/20/16 Mot.”) at
3-4, DE #19. In particular, defense counsel noted that plaintiff’s deposition had not merely
been “delayed,” as indicated in Nonnenmacher’s January 18, 2016 application, but rather,
plaintiff had failed to appear for her deposition. See id. Moreover, defense counsel stated
that plaintiff’s counsel had not served proper expert disclosures. See id. at 3. Finally,
defense counsel requested that, absent an adjournment of the arbitration hearing, plaintiff be
precluded from testifying at the hearing, on account of her failure to appear at her courtordered deposition. See id. at 5.
Accordingly, on January 22, 2016, the Court directed plaintiff and Nonnenmacher to
show cause, in person on January 27, 2016, “why the relief requested in defendant’s January
20th letter-motion should not be granted and why attorney Nonnenmacher . . . should not be
more severely sanctioned for his continued flouting of judicial court orders.” Order to Show
-7-

Cause (Jan. 22, 2016), DE #20. The Court also ordered Nonnenmacher “to serve a copy of
th[e] Order on plaintiff and to file proof of service by January 25, 2016.” Id. The Court then
added the following:
Mr. Nonnenmacher and his client are warned that their failure to timely appear
as directed will result in the imposition of severe sanctions, which may include
preclusion of plaintiff’s testimony and/or dismissal of her claims.
Id.
The day before the January 27, 2016 hearing, Nonnenmacher applied to the Court to
(1) withdraw as counsel and (2) adjourn the show-cause hearing by one day. See Letter
Requesting Adjournment of Conference (Jan. 26, 2016), DE #21. Although Nonnenmacher
did not provide any reason for his request to withdraw, he noted that he was requesting an
adjournment because he was then on trial before Justice Bernard J. Graham in Supreme Court
in Kings County. See id. The Court denied plaintiff’s counsel’s “perfunctory application to
withdraw from the case, which [w]as devoid of any explanation,” but “reluctantly grant[ed]
Mr. Nonnenmacher’s belated request to adjourn” the show-cause hearing, until January 28,
2016 at 1:15 p.m. See id.8
On January 28, 2016, Nonnenmacher arrived ten minutes late and without his client.
See Transcript of Hearing (Jan. 28, 2016) (“1/28/16 Tr.”) at 2, DE #36; 1/28/16 Minute

8

To ensure minimum disruption to Justice Graham’s trial schedule, a member of this Court’s
staff reached out to his chambers to ascertain the time of that court’s lunch break, so that the
show-cause hearing could be adjourned to a time convenient to both Justice Graham and
Nonnenmacher. A member of Justice Graham’s staff stated that the lunch break would be
from 1:00 p.m. to 2:00. Therefore, the show-cause hearing was adjourned to 1:15 p.m.
(Justice Graham’s staff member could not confirm whether Nonnenmacher was the attorney
trying the case on behalf of Bader Yakaitis.)
-8-

Entry. Nonnemacher blamed his tardiness on “[t]he trains coming from 42nd Street[,]” which
were “significantly delayed.” 1/28/16 Tr. at 3. When the Court questioned why he was
taking the train if he was on trial in Brooklyn Supreme Court, Nonnenmacher responded, “I
am. I am before Judge [Graham] right across the street.” Id. Shortly thereafter,
Nonnenmacher informed the Court that he didn’t believe that he had “flouted a single court
order” and that his “recalcitrant client” was to blame. See id.
Not satisfied with Nonnenmacher’s latest excuse, the Court stated that if his client’s
recalcitrance was in fact preventing him from complying with a court order, “then it was
incumbent upon [him] to properly notify the Court.” Id. at 5; see also id. at 10 (“If you were
having problems with her, again, it was your obligation not to let deadlines pass but to bring
that to the Court’s attention, and you did not do that.”). Moreover, the Court further noted
that Nonnenmacher had failed to file proof that he had caused the January 22nd Order to be
served on his client, as directed by the Court. Id. at 9-10.
When faced with the Court’s recounting of his misconduct, Nonnenmacher shifted
gears again, claiming that he was “overwhelmed” by having to try “98 percent of [his firm’s]
cases.” Id. at 11. Ultimately, the Court found Nonnenmacher’s excuses less than credible
and, given the multiple violations occurring in the aftermath of the prior sanction, sanctioned
him in the amount of $1,000. See id. at 13. The Court directed defendant to submit a letter
with new proposed dates for plaintiff’s deposition and IME. See id. at 18. The Court also
ordered Nonnenmacher to provide the Court, by the end of the day, with an apartment number
or email address for his client, to enable the Court to send a copy of that hearing’s minute
entry directly to plaintiff. See id. at 18, 20; 1/28/16 Minute Entry. Nonnenmacher failed to
-9-

do so.
The next day, on January 29, 2016, defense counsel wrote to the Court concerning the
parties’ proposed dates for plaintiff’s deposition and IME. See Letter (Jan. 29, 2016), DE
#23. Two days later, the Court issued the following order:
Plaintiff Lauren Calletti is directed, on pain of severe sanctions, including
dismissal of her claims, to appear for her deposition on February 15, 2016 at
10:00 a.m., and to appear for her [IME] on February 16, 2016 at 9:45 a.m.
Plaintiff’s counsel, who has twice been sanctioned for repeatedly violating court
orders, still has not been deterred from ignoring court orders: He has not
supplied the Court with plaintiff’s apartment number and email address, which
were due on January 28, 2016. If that information has not been filed by noon
tomorrow[,] escalating sanctions will be imposed.
Order (Feb. 1, 2016), DE #25. A few hours later, defense counsel informed the Court that
“plaintiff’s counsel” had accepted defendant’s offer of settlement. See Letter (Feb. 1, 2016),
DE #26. Thereafter, the Court entered an order requiring that the parties file their stipulation
of discontinuance by February 19, 2016. See Electronic Order (Feb. 2, 2016).
III.

The April 15, 2016 Show-Cause Hearing
The February 19th deadline came and went without the filing of a stipulation of

discontinuance. Accordingly, on March 7, 2016, this Court issued an order directing
plaintiff’s counsel, “on pain of further and more severe sanctions, to file the fully executed
stipulation of discontinuance by March 11, 2016.” Order (March 7, 2016), DE #28. Not
surprisingly, March 11, 2016 passed without compliance with the Court’s order.9

9

The Court had also issued an Order to Show Cause on February 4, 2016, after it discovered
that Nonnenmacher had failed to pay the court-ordered $1,000 sanction by January 29, 2016.
See Order re Order to Show Cause Hearing (Feb. 4, 2016), DE #27; 1/28/16 Minute Entry.
Nonnenmacher finally paid the fine on February 8, 2016.
-10-

On April 12, 2016, this Court issued yet another Order to Show Cause, in which it
directed Nonnenmacher “to show cause, in person, on April 15, 2016, at 9:30 a.m., why he
should not be further sanctioned and referred to the appropriate disciplinary authorities.”
Order to Show Cause (Apr. 12, 2016), DE #29. The Court specifically warned “that his
failure to comply with this Order will result in such a referral, as well as additional monetary
sanctions.” Id.
On April 15, 2016, Nonnenmacher failed to appear at the hearing. See Minute Entry
(Apr. 15, 2016) (“4/15/16 Minute Entry”), DE #30; Transcript of Hearing (Apr. 15, 2016)
(“4/15/16 Tr.”), DE #37. During the conference, defense counsel explained that he had
spoken with Nonnenmacher on February 18, 2016, reminding him of the upcoming deadline
for filing the stipulation of discontinuance, and that Nonnenmacher had assured him that the
stipulation would be hand-delivered to defense counsel the next day and then to the Court, and
that he would thereafter mail a general release. See 4/15/16 Tr. at 4, 6-7. Nonnenmacher
had failed to transmit the documents or to return a subsequent phone message left on March 3,
2016. See id. at 4.10 The Court took under advisement the matter of whether to sanction
Nonnenmacher and, if so, in what form. See 4/15/16 Minute Entry.
IV.

Nonnenmacher’s Post-Hearing Submissions
On April 20, 2016, Nonnenmacher hand-delivered a one-page letter to the Clerk’s

Office, which this Court’s chambers received on April 21, 2016 (hereinafter, the “April 20th
Letter”). See Letter (delivered on Apr. 20, 2016) (“4/20/16 Let.”), DE #38. In the April

10

Defense counsel also brought to the Court’s attention similar misconduct by Nonnenmacher
in another case in this District, in which sanctions were imposed. See infra p. 16.
-11-

20th Letter, Nonnenmacher stated that, on March 23, 2016, he had been taken to
“Morristown Memorial Hospital[,]”11 where he “was diagnosed with a sinus infection, an
upper respiratory infection and pneumonia” and, thereafter, “as a result of [his] illness[,] . . .
required in patient care at three other facilities until April 16, 2016.” Id. “During this time,
[he] did not have access to [his] emails,” and he purportedly did not discover the Court’s
April 12, 2016 Order to Show Cause until 4:51 p.m. on April 16, 2016. Id.12
Five days later, Nonnenmacher filed an unsolicited, supplemental five-page letter
addressing his failure to appear before the Court on April 15, 2016, as well as other conduct
for which Nonnenmacher had previously been sanctioned (hereinafter, the “April 25th
Letter”). See Response (April 25, 2016), DE #32.13
DISCUSSION
As an initial matter, Nonnenmacher should not now be heard to reargue the basis for
the two prior sanctions. He had ample opportunity to explain his position prior to the
imposition of each sanction, and this is not the time for reconsideration of the Court’s
findings. His excuses for his derelictions – such as the alleged lack of cooperation from his
client and her physicians – are beside the point.14

11

See discussion supra p. 4 n.4.

12

The April 20th Letter was silent as to why it then took Nonnenmacher four days to file his
one-page response.
13

This letter was originally incorrectly docketed as a Motion for Sanctions, but the motion
was terminated, with a notation that the submission should have been filed as a response to
this Court’s Order To Show Cause. See Electronic Order (Apr. 25, 2016).
14

In any event, nothing in the April 25th Letter would persuade the Court to rule any
(continued...)
-12-

As for Nonnenmacher’s failure to comply with the Court’s directive that the parties
file their stipulation of discontinuance by February 19, 2016, Nonnenmacher explains that
“[a]t the time of the settlement, [he] was still a partner with [Bader Yakaitis]” and that an
unidentified person at that firm failed to prepare the settlement paperwork. See 4/25/16 Let.
at 4; but cf. 11/23/15 Tr. at 34 (claiming that Nonnenmacher was handling the case on a solo
basis, not through the firm). While Nonnenmacher states that he was “100% responsible for
failing to [en]sure the necessary paperwork was completed, served and filed[,]” id., he offers
no excuse for his alleged promise to defense counsel that he would deliver the stipulation
before the court-ordered deadline the next day, and/or the fact that he never returned
Weissler’s phone message to him on March 3rd about the missing stipulation.
Moreover, while Nonnenmacher claims that he was still a partner at Bader Yakaitis at
the time of the settlement, which was reached on or about January 29, 2016, in the same
letter, he also states that he left the firm in “mid-January of 2016[.]” See 4/25/16 Let. at 4.
Nonnenmacher further states that his departure from Bader Yakaitis resulted in a change of his
email from [e-mail] to [e-mail], and implies that “because

14

(...continued)
differently than it did in November 2015 and January 2016. For example, Nonnenmacher
complains about improper initial disclosures Linefsky allegedly made in July 2015, but
ignores the fact that, as a partner and counsel of record, Nonnenmacher was obligated to
supervise Linefsky’s work. See 4/25/16 Letter at 3. Nonnenmacher also conveniently fails to
acknowledge his own responsibility to raise these issues with the Court in a timely fashion.
See id. (arguing that Linefsky’s performance, “coupled with plaintiff’s treating physicians[’]
failure to provide [him] with copies of their records and medical reports[,] was the reason
why [he] was eventually sanctioned $250.00[,]” without mentioning that Nonnenmacher failed
to communicate with defense counsel or the Court in advance of the November 19th
arbitration hearing) (emphasis added); see generally 11/23/15 Tr.
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access to [the firm] email account was cut off before February 1, 2016 . . . [he] never saw the
Court’s ECF regarding the [April 12th] Order to Show Cause or for my need to appear.”
4/25/16 Let. at 4. Nonnenmacher’s excuse, however, is belied by the fact that the April 12th
Order to Show Cause was sent to him at his new email address on April 12, 2016. See
Receipt for 4/12/16 Order.
In addition to his departure from Bader Yakaitis, Nonnenmacher points again to his
hospitalization at four hospitals from March 23, 2016 through April 16, 2016, as a reason for
his failure to appear at the April 15th show-cause hearing. See 4/25/16 Let. at 4-5.
Nonnenmacher claims that, with the exception of two days, he did not have access to emails.
See id. at 5. Therefore, Nonnenmacher requests that the Court not sanction him further in
this case.
The Court concludes that Nonnenmacher has not satisfactorily explained his admitted
failure to comply with this Court’s order that the stipulation of discontinuance be filed by
February 19, 2016, or with this Court’s direction that he provide the undersigned magistrate
judge with additional contact information for his client. See generally Fed. R. Civ. P.
16(f)(C) (sanctions may be imposed if a party or its attorney “fails to obey a scheduling or
other pretrial order”). As for Nonnenmacher’s excuse for failing to appear at the April 15,
2016 show-cause hearing, were this the first instance of Nonnenmacher’s questionable
behavior, the Court might be more inclined to credit his medical excuse.15

15

The stated reason for Nonnenmacher’s hospitalization on March 23, 2016 seems to differ
from case to case. In an unrelated action in this District, Nonnenmacher’s co-counsel
informed the Honorable Allyne R. Ross that, according to Nonnenmacher’s wife,
(continued...)
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But the Court need not make a credibility finding at this time. Even assuming the truth
of all facts asserted by Nonnenmacher, including his hospitalizations, he nevertheless had an
obligation to properly manage this case, whether that meant timely asking the Court for
extensions of time or making arrangements for another attorney to handle the matter for him
during his medical absence(s). Nonnenmacher did none of those things. Rather, he simply
went silent and missing in action, prompting his adversary and the Court to expend
unnecessary time and effort trying to reach him.
Given the erratic manner in which Nonnenmacher has handled this case, and his
rambling and never-ending excuses for his various violations, the Court concludes that the
most appropriate sanction, in addition to a public reprimand, is to bring Nonnenmacher’s
conduct to the attention of Chief Judge Irizarry, for referral to the District’s Committee on
Grievances, pursuant to Local Civil Rule 1.5. See S. & E.D.N.Y. Local Civ. R. 1.5 (“The
Chief Judge shall appoint a committee of the Board of Judges known as the Committee on
Grievances, which under the direction of the Chief Judge shall have charge of all matters
relating to the discipline of attorneys.”); see also In re Goldstein, 430 F.3d 106, 111-12 (2d
Cir. 2005) (noting that courts have the inherent authority to “police the conduct of attorneys
as officers of the court,” and affirming the court’s referral of attorney conduct to the

15

(...continued)
Nonnenmacher was rushed to the hospital on March 23, 2016 “with an apparent heart attack
or panic attack.” See Letter, DE #112 in 11-CV-4507. Meanwhile, in the instant matter,
Nonnenmacher told the Court that his three-week hospitalization resulted from a “sinus
infection, an upper respiratory infection and pneumonia.” 4/20/16 Let.; see also discussion
infra p. 16.
-15-

disciplinary committee) (internal quote and citation omitted).
Specifically, this Court requests that the Committee consider whether Nonnenmacher’s
conduct in this case complied with Rule 1.16(b)(2) of the Rules of Professional Conduct of the
New York State Unified Court System, which requires an attorney to withdraw from the
representation of a client when “the lawyer’s physical or mental condition materially impairs
the lawyer’s ability to represent the client.” Moreover, the Court urges the Committee to
inquire into whether Nonnenmacher’s conduct in this matter has been competent and diligent,
pursuant to Rules 1.1 and 1.3 of the Rules of Professional Conduct of the New York State
Unified Court System. The recommendation that a disciplinary inquiry be undertaken is
bolstered by Nonnenmacher’s bizarre behavior in other cases in this District, which suggests a
wider problem and raises serious questions as to whether Nonnenmacher is fit to practice law
at this time.
For example, in Martin v. Giordano, Nonnenmacher was recently publicly
reprimanded by Judge Allyne R. Ross and was referred to the Committee on Grievances for
consideration of the imposition of discipline or other relief. See — F.Supp.3d —, 2016 WL
2731473, at *26 (E.D.N.Y. May 9, 2016). In Martin, on the eve of trial in March of this
year, Nonnenmacher asked his co-counsel to seek an adjournment of the trial because,
according to co-counsel, Nonnenmacher’s mother had passed away. See id. at *7-8
Nonnenmacher’s co-counsel later hired a private investigator and discovered that
Nonnenmacher’s mother was alive. See id. at *8. Although Nonnenmacher attributed the
falsehood to a misunderstanding, Judge Ross deferred to the disciplinary committee to
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determine whether Nonnenmacher “intentionally misrepresented his mother’s death.” See id.
at *25.16
Nonnenmacher engaged in a similar disappearing act in a case before the Honorable
LaShann DeArcy Hall in Chay v. J.C. Penney Company, Inc., 15-CV-6896. In Chay,
Nonnenmacher failed to appear before Judge Hall and missed a briefing deadline. See Letter
Motion to Dismiss for Lack of Prosecution (Apr. 29, 2016) at 2-3, DE #11 in 15-CV-6896
(setting forth Nonnenmacher’s performance problems in Chay). Once Nonnenmacher
resurfaced in late April 2016, the parties voluntarily dismissed the case in order to proceed to
arbitration. See Order Dismissing Case (May 13, 2016), DE #14 in 15-CV-6896.
Nor are his performance problems limited to the period leading up to and during his
hospitalization in 2016. In another case in this District, Racks v. City of New York,
Nonnenmacher missed a telephone conference with Magistrate Judge Robert M. Levy on
April 27, 2016, and thereafter wrote Judge Levy a letter explaining that his long
hospitalization had caused him to suffer a back-log in his cases and that his absence was not
an intentional disregard of Judge Levy’s order. See Minute Entry (Apr. 27, 2016) in 11-CV2305; Letter by Lamont Racks (Apr. 28, 2016) (“Racks Pl. 4/28/16 Let.”), DE #47 in 11-CV2305.17 Almost a month later, however, on May 23, 2016, Nonnenmacher failed to
16

Notably, statements made by Nonnenmacher in the Martin case are belied by his conduct in
this case. Compare Declaration of John Joseph Nonnenmacher (Apr. 20, 2016) ¶ 7, DE #142
in 11-CV-4507 (“My failure to keep up with emails or ECF since March 21, is not something
that is characteristic of my professional career”), with 11/17/15 Mot.; Def. 1/20/16 Mot.
17

Compare 4/25/16 Let. at 4-5 (“With the exception of possibly two days at Morristown
Medical Center, I did not have access to my emails as electronic devices were prohibited.”),
with Racks Pl. 4/28/16 Let. (“With the exception of one day, I did not have access to my
emails as electronics were prohibited.”). It is unclear why all of the hospitals would prohibit
(continued...)
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participate in another proceeding before Judge Levy in that case. See Minute Entry (May 23,
2016) in 11-CV-2305 (“Plaintiff’s counsel did not appear or request an adjournment.”). In a
letter docketed on May 26, 2016, Nonnenmacher told Judge Levy that he had been unable to
participate in that conference because a visit with his mother in a nursing home left him “so
heartbroken and devastated . . . that [he] lost sight of all of [his] responsibilities.” Letter by
Tanya Racks (docketed May 26, 2016), DE #54 in 11-CV-2305. However, the visit
referenced by Nonnenmacher allegedly occurred on Tuesday, May 24, 2016 – the day after
the proceeding that he failed to attend.
Clearly, Nonnenmacher’s behavior in this instant matter is part of a larger pattern and
practice, and this Court believes that the Committee on Grievances is best suited to consider
the appropriate discipline for Nonnenmacher.
CONCLUSION
For the reasons stated herein, the Court, in its discretion, declines to impose yet
another financial sanction on Nonnenmacher and, instead, publicly reprimands him and
presents the issues outlined in this opinion to Chief Judge Irizarry for referral to the
Committee on Grievances.
SO ORDERED.
Dated:

Brooklyn, New York
June 7, 2016

Roanne L. Mann

/s/
ROANNE L. MANN
CHIEF UNITED STATES MAGISTRATE JUDGE

17

(...continued)
electronic devices if Nonnenmacher was being treated for, as he claims, an upper respiratory
infection. See 4/20/16 Let.
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