Abraham v. Leigh et al

Filing 615

ORDER: Accordingly, Plaintiff may submit, on or by January 22, 2021, an ex parte, sealed submission to substantiate her poverty and her diligence in attempting to comply with the Sanctions Order between September 14, 2020, and the present. The Court will hold its decision on Defendant's pending motion for a finding of civil contempt in abeyance pending a supplemental submission from Plaintiff to demonstrate her diligence in attempting to comply with the Sanctions Order. Additionally, Plaintiff is warned one final time that continued noncompliance with the Court's October 21, 2020 Order will result in entry of judgment against Plaintiff on Defendant's counterclaims against her. SO ORDERED. (Signed by Judge Katherine Polk Failla on 12/21/2020) (rro)

Case 1:17-cv-05429-KPF Document 615 Filed 12/21/20 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ROBYN ABRAHAM,
Plaintiff,
-v.-

17 Civ. 5429 (KPF)
ORDER

ABBY LEIGH, et al.,
Defendants.
KATHERINE POLK FAILLA, District Judge:

By Opinion and Order dated September 14, 2020, the Court ordered
Plaintiff Robyn Abraham to pay $53,144.60 in attorneys’ fees and costs
incurred by Defendant Abby Leigh, as Executrix of the Estate of Mitch Leigh
(“Defendant”), in connection with the Court’s partial grant of a sanctions
motion in Defendant’s favor. (Dkt. #539 (the “Sanctions Order”); see also Dkt.
#371 (granting motion for sanctions), 409 (transcript)). To date, Plaintiff has
not complied with the Sanctions Order. Before the Court is Defendant’s motion
for a finding of civil contempt for failure to abide by the Sanctions Order (Dkt.
#573-575); Plaintiff’s submission in opposition to Defendant’s motion for a
finding of civil contempt (Dkt. #610-611); and Defendant’s reply submission
(Dkt. #614). 1

1

For ease of reference Defendant’s opening memorandum is referred to as “Def. Br.” (Dkt.
#574); Plaintiff’s opposition memorandum is referred to as “Pl. Opp.” (Dkt. #611); and
Defendant’s reply memorandum is referred to as “Def. Reply” (Dkt. #614). The
Declaration of H. Robert Fiebach in Support of Defendant’s Motion for a Finding of Civil
Contempt is referred to as “Fiebach Decl.” (Dkt. #575); and Plaintiff Robyn Abraham’s
Declaration in Opposition to Defendant’s Motion for Contempt is referred to as
“Abraham Decl.” (Dkt. #611). For convenience, because Plaintiff’s submission does not
have consistent internal pagination, the Court uses the page numbers assigned by the
Court’s electronic case filing (“ECF”) system.

Case 1:17-cv-05429-KPF Document 615 Filed 12/21/20 Page 2 of 6

“[C]ourts have inherent power to enforce compliance with their lawful
orders through civil contempt.” Waterkeeper Alliance, Inc. v. Salt, 829 F. App’x
541, 543 (2d Cir. 2020) (summary order) (quoting Spallone v. United States,
493 U.S. 265, 276 (1990)). That power “reaches both conduct before the court
and that beyond the court’s confines.” Chambers v. Nasco, Inc., 501 U.S. 32,
44 (1991). A court may hold a party in civil contempt for failure to comply with
a court order if: “[i] the order the contemnor failed to comply with is clear and
unambiguous[; [ii] the proof of noncompliance is clear and convincing[;] and
[iii] the contemnor has not diligently attempted to comply in a reasonable
manner.” Al Hirschfeld Found. v. Margo Feiden Galleries Ltd., 438 F. Supp. 3d
203, 207 (S.D.N.Y. 2020) (quoting CBS Broadcasting Inc. v. FilmOn.com, Inc.,
814 F.3d 91, 98 (2d Cir. 2016)). “The contemnor need not willfully violate the
order for contempt to be appropriate.” Jolen, Inc. v. Kundan Rice Mills, Ltd.,
No. 19 Civ. 1296 (PKC), 2019 WL 2949988, at *3 (S.D.N.Y. July 9, 2019) (citing
Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs. Inc.,
369 F.3d 645, 655 (2d Cir. 2004)).
The Court agrees with Defendant that the Sanctions Order is “clear and
unambiguous” and that Plaintiff’s noncompliance is “clear and convincing.”
(Def. Reply 1 (quoting CBS Broadcasting Inc., 814 F.3d at 98)). It is undisputed
that Plaintiff has not complied with the Sanctions Order. (See Fiebach Decl.
¶¶ 3-6; see generally Pl. Opp.). And the Sanctions Order plainly directs
Plaintiff to pay sanctions in the amount of $52,507.50 in attorneys’ fees and
$637.10 in costs to Defendant, within 30 days of the date of the Order. (Dkt.
#539 at 31).

2

Case 1:17-cv-05429-KPF Document 615 Filed 12/21/20 Page 3 of 6

Plaintiff argues that she diligently attempted to comply with the
Sanctions Order in a reasonable manner, and that therefore civil contempt is
not justified. (See generally Pl. Opp.). Plaintiff offers three explanations to
attempt to prove her diligence: first, she asserts that poverty prevents her
compliance (id. at 8-11); second, she argues that her non-compliance is
excused by illness, “reportedly due to COVID” (id. at 5); and third, she claims
that her failed attempt to appeal the Sanctions Order somehow demonstrates
diligence (id. at 8).
The Court has already carefully considered and rejected Plaintiff’s
argument that her pending appeal, which only belatedly sought to include the
Sanctions Order, does not stay or excuse Plaintiff’s obligation to comply with
the Sanctions Order. (See Dkt. #589, 592, 602). And Plaintiff’s statements
about her illness address a delay in complying with the Sanctions Order, but
do not demonstrate any diligence in attempting to comply. Further, even if
illness did demonstrate diligence, here the Court does not believe Plaintiff has
established that she has actually been ill; instead, Plaintiff has claimed illness
when it suits her, but at other times has claimed to be out of her house and
working on various secret projects “on location.” (Compare Pl. Opp. 5, with
Dkt. #555, 576).
Finally, Plaintiff’s ipse dixit claim that poverty prevents her from
complying with the Sanctions Order is insufficient on this record. Plaintiff
provides no evidence to substantiate her claim of poverty, and her sworn
declaration is filled with argument and demonstrably false claims, rather than
evidence. For example, Plaintiff claims that she has paid more than $100,000
3

Case 1:17-cv-05429-KPF Document 615 Filed 12/21/20 Page 4 of 6

in compliance with previous Court orders, and that these payments have left
her unable to comply with the Sanctions Order. (Abraham Decl. ¶¶ 5-7). But
Plaintiff claims that the Court ordered her to make these payments. (See Pl.
Opp. 9). This is a misrepresentation of the record. Rather, Plaintiff voluntarily
entered into a settlement agreement with her former counsel, which agreement
the Court memorialized in an order at the parties’ joint request. (See Dkt.
#379). Although the Court ordered Plaintiff to abide by the terms of her
settlement agreement, as explained by the Court already, the Court did not
force Plaintiff to enter into the settlement agreement. See Abraham v. Leigh,
No. 17 Civ. 5429 (KPF), 2020 WL 5095655, at *4-6 (S.D.N.Y. Aug. 28, 2020).
The Court also notes that Plaintiff’s own statements to this Court
demonstrate that a significant portion of the funds she received from settling
with Defendants Wasserman and Honig remain unaccounted for. For example,
Plaintiff agreed to pay her former counsel 30% of this settlement less $10,000.
(See Dkt. #379 (memorializing settlement agreement between Plaintiff and her
former counsel)). In her opposition brief, Plaintiff discloses to the Court that,
pursuant to this agreement, she apparently paid her former counsel “more
than $63K,” suggesting that she received more than $200,000 from Defendants
Wasserman and Honig. (Pl. Opp. 9). Plaintiff also makes much of paying for
court reporting services. (Id.). However, Plaintiff agreed pay $15,502.85 to
Hudson Reporting as part of her settlement agreement with her former counsel.
(Dkt. #379). Even accepting Plaintiff’s representations as true, Plaintiff has yet
to account for well over $100,000 she received in her settlement with
Defendants Wasserman and Honig. Plaintiff’s claims of poverty are further
4

Case 1:17-cv-05429-KPF Document 615 Filed 12/21/20 Page 5 of 6

undermined by the contradiction between her claim to have been unable to
work since February (Pl. Opp. 9), and her prior representations that she could
not attend remote conferences in this case because of “professional production
commitments” that required her to work “on location” (Dkt. #555).
The Court pauses briefly here to address Plaintiff’s continued contemptworthy behavior. The Court has warned Plaintiff repeatedly about using the
docket in this case to mount personal attacks on her former counsel. (See,
e.g., Dkt. #583, 589, 604). Despite the Court’s repeated warnings, Plaintiff
continues to use her submissions in this case to make demonstrably false,
spurious, and irrelevant allegations about her former counsel. The Court has
carefully considered whether there are any legitimate reasons for Plaintiff to
continue to advance personal attacks about her former counsel in this case
and has found none. This is Plaintiff’s final warning. If Plaintiff’s
noncompliance with the Court’s October 21, 2020 Order continues (see Dkt.
#583), the Court will enter judgement against Plaintiff on Defendant’s
counterclaims against her. The Court has warned Plaintiff about this conduct
repeatedly (see Dkt. #583, 589, 604), and alternative sanctions, such as
spoliation of evidence and monetary sanctions, have proven inadequate to stop
Plaintiff’s improper behavior, as the instant motion makes clear.
As explained above, Plaintiff has not offered any evidence that poverty
has prevented her from diligently complying with the Sanctions Order. The
Court offers Plaintiff a final chance to substantiate her claim of poverty.
Accordingly, Plaintiff may submit, on or by January 22, 2021, an ex parte,
sealed submission to substantiate her poverty and her diligence in attempting
5

Case 1:17-cv-05429-KPF Document 615 Filed 12/21/20 Page 6 of 6

to comply with the Sanctions Order between September 14, 2020, and the
present. The Court will hold its decision on Defendant’s pending motion for a
finding of civil contempt in abeyance pending a supplemental submission from
Plaintiff to demonstrate her diligence in attempting to comply with the
Sanctions Order. Additionally, Plaintiff is warned one final time that continued
noncompliance with the Court’s October 21, 2020 Order will result in entry of
judgment against Plaintiff on Defendant’s counterclaims against her.
SO ORDERED.
Dated:

December 21, 2020
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

6