Steeger v. JMS Cleaning Services LLC

Filing 22

MEMORANDUM OPINION AND ORDER....Mr. Liebowitzs failure to serve the Notice of Pretrial Conference, his material omissions in his January 13 letter, and his needless infliction of costs on the defendant are each independently sufficient to justify san ctions imposed pursuant to Rule 11 and the Courts inherent power. Taken together, Mr. Liebowitzs actions throughout the course of this litigation compel the Court to impose sanctions. Accordingly, it is hereby ORDERED that, pursuant to this Courts inherent authority, and having weighed the factors listed in the Advisory Committee Notes to the 1993 Amendment to Rule 11, sanctions shall be imposed on Richard Liebowitz in the amount of $10,000. Mr. Liebowitz and Liebowitz Law Firm, PLLC are jointly and severally liable for the $10,000 sanction. IT IS FURTHER ORDERED that by, Friday, March 9, the $10,000 sanction shall be paid to the Clerk of Court, U.S. District Court, Southern District of New York. (Signed by Judge Denise L. Cote on 2/28/2018) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
PAUL STEEGER,
:
Plaintiff,
:
:
-v:
:
JMS CLEANING SERVICES LLC,
:
:
Defendant.
:
:
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17cv8013(DLC)
MEMORANDUM OPINION
AND ORDER

Appearances:
For the plaintiff:
Richard P. Liebowitz
Liebowitz Law Firm, PLLC
11 Sunrise Plaza, Suite 305
Valley Stream, NY 11580
For the defendant:
Stephanie Furgang Adwar
Furgang & Afwar, LLP
2 Crosfield Avenue
West Nyack, NY 10994
DENISE COTE, District Judge:
On October 18, 2017, Paul Steeger filed this copyright
action.

He is represented by Richard Liebowitz, who has been

labelled a copyright “troll.”

McDermott v. Monday Monday, LLC,

17cv9230(DLC), 2018 WL 1033240, at *3 n.4 (S.D.N.Y. Feb. 22,
2018).1
service.

The defendant is a “mom and pop” office cleaning
As became apparent over the brief history of this

Mr. Liebowitz has filed over 500 cases in this district in the
past twenty-four months. Sixteen of those cases have been
before this Court.
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litigation, the defendant had downloaded a photograph of a leaf
from a free download site.

It displayed that photograph on its

website sometime in 2013.

The copyright for the photo was filed

on March 11, 2017, well after the allegedly infringing use.
Similar photos of leaves are available online for a license of
about $12.

The defendant removed the photo from its website as

soon as it was notified, in July, that the plaintiff might file
suit.
A Memorandum Opinion and Order of January 26, 2018
(“January 26 Order”) required Mr. Liebowitz to show cause by
February 2 why he should not be sanctioned, pursuant to Rule 11
and the Court’s inherent power, for the following conduct:
1) his failure to serve the November 9, 2017 Notice of
Pretrial Conference;
2) the misrepresentations and omissions in his January 13,
2018 letter to the Court; and
3) costs needlessly imposed on the defendant.
The January 26 Order outlined the procedural history of the
case, including Mr. Liebowitz’s failure to serve the Notice of
Pretrial Conference on defendant, his delay in serving the
Complaint on the defendant, and his failure to communicate with
the defendant effectively concerning settlement.
In his February 2 response, Mr. Liebowitz acknowledges that
he failed to serve the Court’s Notice of Pretrial Conference on
the defendant, as he was required to do.

He contends that the

failure was “inadvertent,” and argues that the defendant was not

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prejudiced since it independently learned of the date of the
conference.
Mr. Liebowitz argues that his January 13 letter to the
Court contained no misrepresentations and that the law did not
impose upon him the duty to say more than he did.

The January

13 letter had requested an adjournment of the initial pretrial
conference scheduled to occur on January 19, on the ground that
the defendant had not responded to the complaint and the
plaintiff intended to file a motion for a default.

That letter

did not reveal that plaintiff’s counsel had been in
communication with attorneys for the defendant since July, as
described in the January 26 Order.

Mr. Liebowitz argues that,

in the event the Court finds that he should have included more
information in the January 13 letter, his omissions did not rise
to the level of bad faith.
Finally, Mr. Liebowitz argues that it was the defendant who
needlessly made the litigation more expensive by (among other
things) failing to waive service, to update its address with the
Secretary of State, and to answer or request an extension of the
time to answer.
On February 5, counsel for the defendant requested that the
Court grant the defendant its costs and attorney’s fees, and
impose a bond requirement on the plaintiff to cover the
defendant’s costs or dismiss this action.

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Among other things,

the submission took issue with the accuracy of several
representations in Mr. Liebowitz’s February 2 submission.
plaintiff was required to respond by February 12.

The

In an

application of February 6, the defendant retracted its February
5 requests in order to proceed with a settlement agreement
reached between the plaintiff and defendant.
In a February 12 submission, Mr. Liebowitz argued again
that there was insufficient evidence that he acted in bad faith.
On February 22, the plaintiff voluntarily dismissed this action
with prejudice pursuant to Rule 41(a)(1)(A)(i).
This is not the first time Mr. Liebowitz has failed to
serve a Notice of a Pretrial Conference on a defendant.
Although not disclosed by Mr. Liebowitz, defendant informed the
Court that Mr. Liebowitz failed to serve a similar notice of
pretrial conference in a case before The Honorable Ronnie
Abrams.

See Al Pereira v. Kendall Jenner, Inc., 17cv6945(RA).

On November 28, 2017, two days before the conference was
scheduled, the defendant in that case wrote to Judge Abrams to
request to attend by telephone, as it had only learned of the
conference that day.

The plaintiff, represented by Mr.

Liebowitz, had not served defendant with the court’s September
14 pretrial Order, even though it was instructed to do so.
This Court’s Notice of Pretrial Conference was issued on
November 9.

After the Al Pereira defendant’s November 28

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letter, Mr. Liebowitz was on notice to review his cases for
pretrial orders and notices and to, when ordered to do so, serve
them on defendants.

In fact, on November 28, a Notice of

Pretrial Conference was filed in another copyright case before
this Court filed by Mr. Liebowitz.
17cv9230(DLC), LLC, ECF No. 5.

McDermott v. Monday Monday,

And yet, Mr. Liebowitz also

failed to serve the Notice of Pretrial Conference in that case.
McDermott v. Monday Monday, LLC, 17cv9230(DLC), 2018 WL 1033240,
at *1 n.1 (S.D.N.Y. Feb. 22, 2018).
A “Court may impose an appropriate sanction on any
attorney” if it determines that Rule 11(b) has been violated.
Fed. R. Civ. P. 11(c)(1).

An attorney has violated Rule 11(b)

when he “present[s] to the court a pleading, written motion, or
other paper” that is “presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation.”

Fed. R. Civ. P. 11(b).

Sanctions are

considered a “deterrent” and, “if a monetary sanction is
imposed, it should ordinarily be paid into court as a penalty.”
1993 Advisory Committee Notes to Fed. R. Civ. P. 11.

A court

can weigh multiple, non-exclusive factors in determining if an
imposition of sanctions is appropriate:
Whether the improper conduct was willful, or negligent;
whether it was part of a pattern of activity, or an
isolated event; whether it infected the entire pleading, or
only one particular count or defense; whether the person
has engaged in similar conduct in other litigation; whether

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it was intended to injure; what effect it had on the
litigation process in time or expense; whether the
responsible person is trained in the law; what amount,
given the financial resources of the responsible person, is
needed to deter that person from repetition in the same
case; what amount is needed to deter similar activity by
other litigants: all of these may in a particular case be
proper considerations. The court has significant
discretion in determining what sanctions, if any, should be
imposed for a violation, subject to the principle that the
sanctions should not be more severe than reasonably
necessary to deter repetition of the conduct by the
offending person or comparable conduct by similarly
situated persons.
Id. (emphasis added).

Moreover,

[t]he court has inherent power to sanction parties and
their attorneys, a power born of the practical necessity
that courts be able to manage their own affairs so as to
achieve the orderly and expeditious disposition of cases.
This power may likewise be exercised where the party or the
attorney has acted in bad faith, vexatiously, wantonly, or
for oppressive reasons.
Revson v. Cinque & Cinque, P.C., 221 F.3d 71, 78 (2d Cir. 2000).
Mr. Liebowitz should be sanctioned for his failure to serve
the Notice of Pretrial Conference.

Mr. Liebowitz’s claim that

his failure to serve JMS Cleaning Services, LLC with the Notice
of Pretrial Conference was “inadvertent” and an “honest mistake”
is unpersuasive given his prior practice before this Court and
in this district.
Service of such a Notice is essential to the efficient
administration of cases before this Court.

The Notice of

Pretrial Conference is often a defendant’s first introduction
the Court.

Accordingly, a copy of the Court’s individual

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practices is required to accompany service of the Notice.

Of

course, the Pretrial Conference itself is an integral component
of a trial: the parties have an opportunity to discuss the case
with the Court, a discovery and motion practice schedule is set,
and, often, a trial date is selected.

To deprive an adversary

of notice of such a conference -- and to assume that it will
discover the details by looking on the Electronic Case Filing
(“ECF”) system -- is to interfere with the ability of a court to
manage its docket and with the parties’ ability to manage their
litigation.
In the Court’s experience, a properly served Notice of
Pretrial Conference often prompts a defendant to answer, to
request an extension to answer, to obtain counsel, or to
otherwise begin active participation in the litigation.

Indeed,

that is precisely what happened in this case: defendant sprang
into action after learning about the conference.

The

defendant’s principal, upon learning of the conference two
months after the Notice was filed on ECF and only one week
before the scheduled conference, appeared for the conference
even though he had not yet officially responded to the
complaint.
Sanctions are also warranted for Mr. Liebowitz’s omissions
in his January 13 letter.

The January 13 letter omitted key

details of the parties’ communications.

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The letter stated only

that the defendant had yet to respond to the complaint,
suggesting that the defendant was wholly unresponsive or
otherwise absent from the litigation and, as a result, the
plaintiff was prepared to file a motion for a default judgment.
This characterization was misleading.

Plaintiff had spoken

with defendant’s counsel on multiple occasions before filing the
January 13 letter.
negotiations.

The defendant had attempted settlement

By requesting an adjournment of the conference

and suggesting that he move for a default judgment, without this
key context, Mr. Liebowitz needlessly delayed and prolonged
litigation.

A conference would have allowed Court to discuss

service issues with the parties, as well as a settlement
schedule, and a parallel discovery and dispositive motion
practice schedule if settlement were not to succeed.

Moreover,

Mr. Liebowitz’s letter gave the impression that the defendant
was delinquent when, in fact, the defendant had tried on
multiple occasions to avoid, and eventually resolve, litigation.
Indeed, the defendant, having independently learned of the
initial conference (but not its adjournment) appeared at court
for the initial conference.

In sum, the January 13 letter

misled the Court as to the defendant’s participation in the
litigation.
Finally, Mr. Liebowitz has needlessly imposed costs on the
defendant.

The defendant had expressed a desire to avoid

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litigation through settlement before Mr. Liebowitz even filed
this lawsuit.

Now, Mr. Liebowitz has abandoned litigation and,

presumably, resolved this case privately with the defendant.
The defendant has likely expended significant financial -- and
emotional -- resources defending this lawsuit.

The defendant

consulted with at least two attorneys and its owner appeared at
a court conference which had been cancelled pursuant to Mr.
Liebowitz request.
Mr. Liebowitz’s failure to serve the Notice of Pretrial
Conference, his material omissions in his January 13 letter, and
his needless infliction of costs on the defendant are each
independently sufficient to justify sanctions imposed pursuant
to Rule 11 and the Court’s inherent power.

Taken together, Mr.

Liebowitz’s actions throughout the course of this litigation
compel the Court to impose sanctions.

Accordingly, it is hereby

ORDERED that, pursuant to this Court’s inherent authority,
and having weighed the factors listed in the Advisory Committee
Notes to the 1993 Amendment to Rule 11, sanctions shall be
imposed on Richard Liebowitz in the amount of $10,000.

Mr.

Liebowitz and Liebowitz Law Firm, PLLC are jointly and severally
liable for the $10,000 sanction.

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IT IS FURTHER ORDERED that by, Friday, March 9, the $10,000
sanction shall be paid to the Clerk of Court, U.S. District
Court, Southern District of New York.

Dated:

New York, New York
February 28, 2018
______________________________
DENISE COTE
United States District Judge

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