Judges: Per Curiam
Filed: Jan. 18, 2019
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 7, 2018 Decided January 18, 2019 Before ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge AMY C. BARRETT, Circuit Judge No. 18-1811 DONALDSON TWYMAN, Appeal from the United States Plaintiff-Appellee, District Court for the Northern District of Illinois, Eastern v. Division. S&M AUTO BROKERS, INC., Defen
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 7, 2018 Decided January 18, 2019 Before ILANA DIAMOND ROVNER, Circuit Judge DIANE S. SYKES, Circuit Judge AMY C. BARRETT, Circuit Judge No. 18-1811 DONALDSON TWYMAN, Appeal from the United States Plaintiff-Appellee, District Court for the Northern District of Illinois, Eastern v. Division. S&M AUTO BROKERS, INC., Defend..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 7, 2018
Decided January 18, 2019
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18‐1811
DONALDSON TWYMAN, Appeal from the United States
Plaintiff‐Appellee, District Court for the Northern
District of Illinois, Eastern
v. Division.
S&M AUTO BROKERS, INC.,
Defendant. No. 1:16‐cv‐4182
APPEAL OF: JOEL ALAN BRODSKY Virginia M. Kendall,
Judge.
ORDER
Joel Brodsky, counsel for the defendant in a used‐car dispute, was sanctioned by the
district court for a variety of statements he made and motions he filed attacking the
plaintiff’s counsel and expert witness. The district court imposed a $50,000 fine, which
Brodsky argues was not warranted by his actions. 1 We affirm the district court’s
1 Brodsky also argues that the $50,000 sanction was punitive and so could not have been imposed without
more procedural protections than he received, citing Int’l Union, United Mine Workers of Am. v. Bagwell, 512
U.S. 821 (1994), and Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017). Because Brodsky fails to
No. 18‐1811 Page 2
judgment because the fine was justified in light of Brodsky’s extreme and repeated
misbehavior.2
The suit underlying this appeal involved allegations that the defendant, a used‐car
dealership, sold the plaintiff a car whose odometer and crash records had been tampered
with. Over the course of the litigation, the defendant’s attorney, Joel Brodsky, made
multiple accusations that the plaintiff’s attorney, Peter Lubin, engaged in unprofessional,
unethical, and even criminal behavior. For example, in one filing Brodsky argued that
Lubin “proved by his actions that he has no interest in the truth, and just sees the litigation
process as an extortion game, in which his only goal is to extort as much money as
possible out of the Defendants, no matter what the truth is.” In another he said that “[t]he
Plaintiff[‘]s Motion for Partial Summary Judgment is, like the entire Plaintiff[‘]s case, a
total and complete fraud, submitted for the sole purpose [of] assisting the Plaintiff[‘]s[]
attorneys in their attempt to use the legal system to extort money from the Defendant.”
During Lubin’s deposition of a defense witness Brodsky put an even finer point on it,
claiming that Lubin was part of a “criminal enterprise” that “totally concocted, fabricated
[this entire case] in an attempt to make money where there is no case at all.” And Brodsky
sent a number of inflammatory emails to Lubin and his team echoing these accusations.
Brodsky also went after the plaintiff’s expert witness, Donald Szczesniak. Brodsky
accused Szczesniak of fabricating expert reports in this and other cases, and he submitted
an affidavit from one of Szczesniak’s former clients, Diane Weinberger, to support his
accusations. Two weeks later, Brodsky filed a motion asking the district court to hold
Szczesniak in criminal contempt and to refer him for prosecution to the United States
Attorney. In that motion Brodsky accused Szczesniak of damaging a fence at
Weinberger’s home in order to intimidate her into not testifying against him and of
sending Brodsky an anonymous fax to discourage Brodsky’s own investigation into
Szczesniak’s background. The district court summarily denied the motion, explaining
that “[t]he judicial branch does not direct the executive branch to bring criminal
prosecutions.” Undeterred, Brodsky filed a motion for sanctions against both the plaintiff
and Szczesniak. The plaintiff denied the allegations regarding the damaged fence and the
anonymous fax and submitted affidavits from Szczesniak, his wife, his mother, and his
son that showed Szczesniak had been elsewhere at the time of the incidents. Brodsky
responded by alleging that Szczesniak had lied in his affidavit and questioning whether
Szczesniak’s son even existed. Szczesniak sought and received permission from the court
identify any way in which additional procedures might have made a difference in his case, we decline to
address this argument.
2 We appointed Thomas L. Shriner, Jr. as amicus curiae to defend the district court’s decision. Mr. Shriner
has ably discharged that responsibility, for which we thank him.
No. 18‐1811 Page 3
to respond directly to Brodsky’s accusations, and Brodsky continued to accuse him of
falsifying reports and engaging in a “routine practice of intimidation and retaliation.”
Brodsky’s misconduct ultimately eclipsed the lawsuit. The parties settled their
dispute, but the court retained jurisdiction to determine whether Brodsky should be
sanctioned. During the court’s three‐hour evidentiary hearing, Szczesniak and Lubin
both testified and were subject to cross‐examination regarding Brodsky’s accusations
against them. Brodsky, however, declined to testify or offer any new evidence in his
defense (apart from a copy of Weinberger’s report to the police about the damage to her
fence). In lieu of testifying, Brodsky asked for and received permission to make a
statement apologizing for his conduct.
The district court decided to sanction Brodsky under its inherent authority. The court
noted Brodsky’s “unprofessional, contemptuous, and antagonistic behavior directed at
opposing counsel” throughout the litigation but focused primarily on his allegations and
attacks levied against Szczesniak. It described these actions as “wildly inappropriate”
and concluded that they were undertaken “in bad faith, in an attempt to improperly
impugn Szczesniak’s reputation before the Court, to have the Court potentially disqualify
him as an expert, or at least [to] intimidate Szczesniak to the extent he would not testify.”
The court also found Brodsky’s attempts at mitigation to be “wholly inadequate for his
egregious conduct.” Based on these findings, the court directed Brodsky to (1) pay a
$50,000 fine to the clerk of the district court, (2) attend an ethics course approved by the
Illinois Attorney Registration and Disciplinary Commission, and (3) attend an anger
management class. The court also referred Brodsky to the district court’s executive
committee to consider barring or suspending him from practicing law in that district.
There are various sources of authority that empower a court to sanction parties or
attorneys who appear before it. The court in this case relied on its inherent power “to
fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers
v. NASCO, Inc., 501 U.S. 32, 44–45 (1991). This power is “governed not by rule or statute
but by the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626,
630–31 (1962). Its exercise is appropriate against offenders who willfully abuse the
judicial process or otherwise conduct litigation in bad faith. Salmeron v. Enter. Recovery
Sys., Inc., 579 F.3d 787, 793 (7th Cir. 2009). Sanctions may be imposed “not only to
reprimand the offender, but also to deter future parties from trampling upon the integrity
of the court.” Dotson v. Bravo, 321 F.3d 663, 668 (7th Cir. 2003). When sanctioning is
warranted, a “district court has discretion to select an appropriate sanction, [but] the
court must impose a sanction that fits the inappropriate conduct.” Burda v. M. Ecker Co.,
2 F.3d 769, 776 (7th Cir. 1993) (citation omitted). Our review of that discretion is
No. 18‐1811 Page 4
deferential. Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Ams. LLC, 516 F.3d 623,
625 (7th Cir. 2008).
The district court did not abuse its discretion here. While it would have been
preferable for the court to state expressly the basis for the size of its fine, Brodsky’s
egregious behavior, obvious on the face of the record and emphasized at length by the
court, more than justified the court’s choice of sanction. Brodsky’s rhetoric was
inappropriate and outlandish, and his attempt to implicate the court in his fraud—and to
use legal process as a tool to intimidate a witness—was beyond the pale. On this record,
we have no trouble affirming the district court’s decision.
AFFIRMED.