MARGO K. BRODIE, District Judge.
Plaintiff Elizabeth Betsy Combier commenced the above-captioned action on April 13, 2017 against Francesco Portelos, Lucio Celli, Bryan Glass, Esq., Jordan Harlow, Esq., Carmen Farina, Chancellor of the New York City Department of Education, and the New York City Department of Education (the "DOE"), seeking declaratory, injunctive, and monetary relief for alleged constitutional violations and other injuries.
Since the filing of the Second Amended Complaint, Defendant Celli has filed more than twenty harassing and duplicative motions and letters with the Court. (See, e.g., Letters dated April 4, 2018, Docket Entry Nos. 101-08, 110, 112; Letters dated May 4, 2018, Docket Entry Nos. 118-20, 122-23, 129, 132; Mots. to Strike, Docket Entry Nos. 109, 114; Mots. for Fraud upon the Court, Docket Entry Nos. 113, 115.) In several filings, Celli attacks Plaintiff, calling her a liar and accusing her of lying in submissions to the Court, (see e.g., Letters dated April 4, 2018, Docket Entry Nos. 102, 104, 107; Letters dated May 4, 2018, Docket Entry Nos. 118, 132), asserts that Plaintiff suffers from mental illness and is "crazy," (Letter dated April 4, 2018, Docket Entry No. 102), and repeatedly requests that the Court conduct a mental examination of Plaintiff, (Letters dated April 4, 2018, Docket Entry Nos. 102, 110; Letter dated May 4, 2018, Docket Entry No. 120).
Although Defendant Celli is a pro se litigant, he is no stranger to litigation in this district. See Celli v. New York City Dep't of Educ., No. 15-CV-3679 (E.D.N.Y. filed June 24, 2015). Indeed, Celli was warned in that action from engaging in harassing conduct. (Id.) On January 12, 2017, Judge Brian M. Cogan declined to impose sanctions against Celli but warned him not to engage in harassing conduct. Celli v. New York City Dep't of Educ., No. 15-CV-3679 (E.D.N.Y. Jan. 12, 2017). Judge Cogan admonished that "should [Celli] ever find himself in any court on some other case and conduct himself in the manner that he did here, the result of a motion [for sanctions] may be different." Id. at 2.
While Celli may disagree with Plaintiff's contentions in the Second Amended Complaint and other filings, it is not a basis for his multiple filings or his harassing tone. Celli has already filed a motion to dismiss the Second Amended Complaint, which motion will be decided by the Court. Celli is warned that should he continue filing such letters or motions, the Court will take appropriate action, which may include barring him from filing additional letters or motions without leave from the Court. United States v. Buczek, 531 F. App'x 105, 106 (2d Cir. 2013) (warning pro se criminal defendant-appellant that "his further filing in this Court of frivolous motions, appeals, petitions, or other matters relating to his November 2010 convictions, the criminal proceedings leading to those convictions, or his post-conviction litigation, will result in the imposition of sanctions, including leave-to-file sanctions"); Safir v. U.S. Lines Inc., 792 F.2d 19, 24 (2d Cir. 1986) ("That the district court possessed the authority to enjoin [the plaintiff] from further vexatious litigation is beyond peradventure." (collecting cases)); NMD Interactive, Inc. v. Chertok, No. 11-CV-6011, 2017 WL 993069, at *5 (S.D.N.Y. Mar. 13, 2017), aff'd sub nom. StreetEasy, Inc. v. Chertok, ___ F. App'x ___, 2018 WL 1478238 (2d Cir. Mar. 26, 2018) (warning defendant that "future frivolous filings by him that appear to be designed primarily to harass Plaintiff and its counsel will be carefully scrutinized and may result in sanctions, including a filing injunction").
COGAN, District Judge.
Before the Court is defendants' motion for sanctions against pro se plaintiff "for his vexatious and abusive conduct directed at defendants, counsel, non-parties, and the Court." In particular, on the evening of December 21, 2016, plaintiff sent several emails approximately 72 times to Corporation Counsel Zachary W. Carter, Department of Education General Counsel Howard Friedman, eight employees of the Department of Education, defendants' counsel Michael Nacchio, and several non-parties, including the U.S. Attorney for the Southern District of New York. Defendants characterize the mass of emails as attempts by plaintiff to spam the email folders of the recipients.
Although the Court was disturbed by the content of the email, the number of emails sent, and plaintiff's disregard of Mr. Nacchio's admonishment that he should not email the named defendants directly, sanctions are inappropriate at this juncture. In declining to sanction plaintiff, I do not credit plaintiff's argument in opposition that he was never told not to conduct himself in the way he had, nor do I credit his argument that his conduct did not violate any explicit order of this Court to abstain from such obscene and harassing behavior. Instead, I base this decision on three factors: (1) plaintiff's proffer that his DOE email privileges have been revoked; (2) his promise to the Court that he will not conduct himself in the manner that he has, including the use of vulgar and obscene language, not only in future communications with defendants' counsel, but also in any future submissions to this Court; and (3) the need to give litigants, particularly pro se plaintiffs, notice of the sanctionable conduct, despite how obviously inappropriate the conduct is, for example, harassing parties with profanity and threats of further harassment.
Notwithstanding my decision not to sanction plaintiff, I am warning plaintiff about his conduct. The Court has been very forgiving of the profanity-laced submissions, even going so far as to disregard the similarly obscene ad hominem attacks that plaintiff directed at the Court, which may well have constituted a contempt of court that could have resulted in a fine or imprisonment. Although this case is over, plaintiff is admonished that should he ever find himself in any court on some other case and conduct himself in the manner that he did here, the result of a motion like defendants' may be different.
Appeal from the United States District Court for the Southern District of New York (Sullivan, J.).
FOR PLAINTIFF-APPELLEE: ISAAC B. ZAUR (Emily Reisbaum, on the brief), Clarick Gueron Reisbaum LLP, New York, New York.
FOR DEFENDANT-APPELLANT: PAUL F. CORCORAN (James R. Levine, Jacob P. Freeman, on the brief), Davis & Gilbert LLP, New York, New York.
PRESENT: GUIDO CALABRESI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.
This appeal, the third appeal in this case, arises out of Chertok's repeated refusal to honor the terms of a 2012 settlement agreement with plaintiff-appellee StreetEasy, Inc. ("StreetEasy"). In the underlying dispute, StreetEasy brought suit against Chertok, its co-founder, alleging claims for, inter alia, breach of fiduciary duty and for cybersquatting under 15 U.S.C. § 1125(d).
On June 5, 2014, in the first appeal, we vacated the district court's sanctions award against Chertok and remanded for reconsideration of the appropriate amount, upholding one of the three factual bases relied on by the district court. StreetEasy, Inc. v. Chertok, 752 F.3d 298, 308-09, 311 (2d Cir. 2014). On remand, the district court imposed a reduced sanctions award, which Chertok appealed.
In April 2016, while Chertok's second appeal was pending, he filed (1) a motion in this Court to vacate our prior June 5, 2014 order for fraud on the court pursuant to Rule 60(d)(3), and (2) a pre-motion letter with the district court—in accordance with the court's Individual Rule 2A—describing a similar contemplated motion to vacate the district court's March 18, 2013 and May 20, 2015 orders for fraud on the court pursuant to Rule 60(d)(3). StreetEasy opposed Chertok's motion in this Court and filed a letter response in opposition to Chertok's letter in the district court.
On June 7, 2016, we affirmed the district court's reduced sanctions award and denied Chertok's motion, concluding that Chertok failed to present "clear and convincing evidence to meet the high bar for finding fraud on the Court." StreetEasy, Inc. v. Chertok, 651 Fed.Appx. 37, 40 (2d Cir. 2016). StreetEasy and Chertok filed supplemental letters with the district court regarding our decision.
On June 16, 2016, the district court issued an order treating Chertok's pre-motion letter as a Rule 60(d)(3) motion and denied it, citing our June 7, 2016 decision denying Chertok's "essentially identical" motion in this Court. Sp. App. 1. Chertok moved for reconsideration pursuant to Rule 60, and StreetEasy moved to enjoin Chertok from future filings. On March 13, 2017, the district court issued an opinion and order denying both motions. NMD Interactive, Inc. v. Chertok, Case No. 11-cv-6011(RJS), 2017 WL 993069, at *1 (S.D.N.Y. Mar. 13, 2017). Chertok appealed.
We review for abuse of discretion a district court's denial of a Rule 60 motion. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir. 1994). "A court abuses its discretion when its decision rests on a legal error or a clearly erroneous factual finding, or when its decision does not fall within the range of permissible decisions." RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003).
Here, the parties offered detailed arguments in pre-motion letters that evidenced the clear lack of merit in Chertok's contemplated motion, particularly following our June 7, 2016 decision. The district court therefore acted within its discretion when it "deem[ed] [Chertok's] motion made and deni[ed] it." Sp. App. 1. Moreover, Chertok thereafter moved for reconsideration and submitted a full set of motion papers. At no point in the district court, in his papers on appeal, or, when invited to do so, at oral argument in this Court, has Chertok identified any additional arguments he would have pressed, or evidence he would have introduced, had he been permitted to file full motion briefs initially.
Second, Chertok argues that the district court's denials of his Rule 60(d)(3) motion and subsequent motion for reconsideration were an abuse of discretion. We discern no error, much less an abuse of discretion. Even accepting Chertok's contention that the mandate rule derived from the law-of-the-case doctrine does not apply, see Brief for Def.-Appellant at 48-49, we once again conclude that Chertok failed to present clear and convincing evidence to satisfy the high bar for establishing fraud on the court, see King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002).
Finally, while we understand StreetEasy's frustration, like the district court we deny StreetEasy's motion to impose sanctions and a filing injunction. We may impose sanctions pursuant to Federal Rule of Appellate Procedure 38 for a frivolous appeal "totally lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly unsupported by the evidence." In re Drexel Burnham Lambert Grp. Inc., 995 F.2d 1138, 1147 (2d Cir. 1993) (quoting United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381-82 (2d Cir. 1982) (per curiam)). While Chertok's motion in the district court was meritless, we are not persuaded that his appeal of the procedure used by the district court was frivolous. We decline to impose sanctions beyond the usual costs awarded to a prevailing party on appeal. Our denial of NMD's request for sanctions should not constrain the district court in awarding the appropriate sanctions for the filing of the Rule 60(d)(3) motion in the district court, or from sanctioning Chertok in the future. Moreover, Chertok's request that we vacate the district court's comment that he "has a demonstrated history of filing vexatious, harassing, and duplicative motions for which he appears to lack an objective good-faith expectation of prevailing," NMD Interactive, Inc., 2017 WL 993069, at *5, is denied. Chertok's request for reassignment on remand is denied as moot.
We have considered Chertok's remaining arguments and find them to be without merit. Accordingly, we
___ Fed.Appx. ____, 2018 WL 1478238
Emily Reisbaum, Isaac Berkman Zaur, Clarick Gueron Reisbaum LLP, New York, NY, for Plaintiff.
William Charles Silverman, Greenberg Traurig, LLP, New York, NY, for Defendant.
Douglas M. Chertok, pro se.
The Court assumes the parties' familiarity with the facts and procedural history of this case and therefore limits its discussion as necessary for the disposition of these motions. Plaintiff NMD Interactive, Inc., which does business under the name of "Streeteasy.com," initiated this action in August 2011, alleging various claims against Defendant, Douglas M. Chertok, one of its founders, including breach of fiduciary duty and cybersquatting under 15 U.S.C. § 1125(d). (See Doc. Nos. 1, 23.) In 2012, the parties entered into a settlement agreement on the record before the Honorable Andrew J. Peck, United States Magistrate Judge, and stipulated to dismissal of this action with prejudice. (See Doc. No. 27 ("Settlement").) Thereafter, Defendant moved, pursuant to Federal Rule of Civil Procedure 60(b), to vacate the Settlement on the ground that it was obtained as a result of fraud by Plaintiff. (See Doc. Nos. 42, 43.) In response, Plaintiff moved to compel compliance with the Settlement and for sanctions against Defendant pursuant to Rule 11 of the Federal Rules of Civil Procedure based on misrepresentations he had made concerning the Settlement. (See Doc. Nos. 46, 47, 50, 51.)
In a Memorandum and Order dated March 18, 2013, the Court denied Defendant's Rule 60(b) motion and granted Plaintiffs motion to enforce the settlement. (Doc. No. 68 ("March 2013 Opinion").) The Court also granted Plaintiffs motion for sanctions based on Defendant's objectively unreasonable conduct in "propound[ing] factual contentions [concerning the Settlement] lacking any evidentiary support whatsoever." (Id. at 13.) Although Defendant appealed the imposition of sanctions and order to compel compliance with the Settlement, he did not appeal the Court's denial of his Rule 60(b) motion. StreetEasy, Inc. v. Chertok, 752 F.3d 298, 304 n.6 (2d Cir. 2014).
In an opinion dated June 5, 2014, the Second Circuit affirmed in part and reversed in part the Court's sanctions order and remanded "for reconsideration of the appropriate amount of monetary sanctions." Id. at 307-11.
On April 27, 2016, while his appeal from the $19,192.33 Sanction was pending, Defendant asked the Second Circuit to vacate its prior judgment partially affirming the Court's sanctions order pursuant to Federal Rule of Civil Procedure 60(d)(3) on the ground that it was obtained as a result of fraud committed by Plaintiffs counsel on both this Court and the Second Circuit. (NMD Interactive, Inc. v. Chertok, No. 15-cv-2003 ("Circuit Doc."), Doc. No. 66-1 (2d Cir. Apr. 27, 2016) ("Circuit Motion") at 1.) Two days later, on April 29, 2016, Defendant filed a premotion letter with this Court regarding a contemplated motion to vacate the $19,192.33 Sanction and the March 2013 Opinion's denial of his Rule 60(b) motion, also on the grounds that Plaintiffs counsel had defrauded the Court in prior submissions. (Doc. No. 101 ("SDNY Motion").) On May 4, 2016, Plaintiff filed a response. (Doc. No. 102.)
On July 1, 2016, Defendant filed the instant motion for reconsideration of the June 16 Order, to which Plaintiff responded on July 18, 2016. (Doc. Nos. 108, 111, 112.) Plaintiff also moved to enjoin Defendant from making any new filings in connection with this litigation, whether "in this [Court] or [in] any [other] federal court in the United States." (Doc. No. 113.) On July 28, 2016, Defendant filed a reply in further support of his motion for reconsideration, and on August 4, 2016, Defendant filed a supplemental submission in opposition to Plaintiffs motion for a filing injunction, to which Plaintiff replied on August 15, 2016. (Doc. Nos. 116, 117.)
A motion for reconsideration pursuant to Local Civil Rule 6.3 "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 256-57 (2d Cir. 1995). A motion for reconsideration "may not be used to advance new facts, issues[,] or arguments not previously presented to the Court, nor may it be used as a vehicle for re-litigating issues already decided by the Court." Am. ORT, Inc. v. ORT Israel, No. 07-cv-2332 (RJS), 2009 WL 233950, at *3 (S.D.N.Y. Jan. 22, 2009) (internal quotation marks omitted); accord Kahala Corp. v. Holtzman, No. 10-cv-4259 (DLC), 2011 WL 1118679, at *1 (S.D.N.Y. Mar. 24, 2011) (citing Nat'l Union Fire Ins. Co. of Pittsburgh v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)).
Here, Defendant first argues that it was improper to deny the SDNY Motion without scheduling a pre-motion conference and granting him leave to file and fully brief the motion. It is true, as Defendant asserts, that a district court may not "prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure." Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir. 1987); (see also Doc. No. 109 ("Mem.") at 16; Doc. No. 115 ("Reply") at 9-10.) And it is also true that district courts must "allow filing of even those motions that, on their face, may appear to lack merit," since it "is necessary to enable appellate review." (Mem. 20 (quoting Curto v. Roth, 296 Fed.Appx. 129, 130 (2d Cir. 2008)).) Even so, the Second Circuit has recognized that courts have the discretion to "construe [] pre-motion letters as the motions themselves and den[y] the motions" where the parties' letters have sufficient "length and detail," the moving party has had sufficient "opportunity to make the arguments necessary to preserve [his] motion for appellate review," and there is a "clear lack of merit" to the moving party's arguments. See In re Best Payphones, Inc., 450 Fed.Appx. 8, 15 (2d Cir. 2011) (collecting cases); see also Highland CDO Opportunity Master Fund, L.P. v. Citibank, NA., No. 12-cv-2827 (NRB), 2014 WL 6686600, at *3 (S.D.N.Y. Nov. 21, 2014) ("[W]hen pre-motion letters adequately present the parties' views of a straightforward request, it is equally appropriate for a district judge to treat the letters themselves as motion papers and to rule on the merits without holding an unnecessary pre-motion conference.") (collecting cases); cf. City of New York v. Fedex Ground Package Sys., Inc., No. 13-cv-9173 (ER), 2016 WL 1718261, at *4 (S.D.N.Y. Apr. 27, 2016) (finding that magistrate judge erred in granting motion based on moving party's pre-motion letter without having received a response from the non-moving party, thus depriving the non-moving party of the "opportunity to be heard on the substantive issues").
In urging reconsideration, Defendant argues that "the motion to the Second Circuit was neither identical nor similar to" the motion contemplated in his April 2016 pre-motion letter and was in fact "tailored to the misrepresentations" Plaintiffs attorneys allegedly made on appeal to the Second Circuit. (Mem. 22 (emphasis added).) It is ironic, given Defendant's allegations of material misstatements by Plaintiffs counsel, that his brief would contain such a preposterous assertion. Indeed, as set forth in Defendant's April 29, 2016 Letter to this Court, Defendant's contemplated SDNY Motion was premised on the allegations that Plaintiffs attorneys knowingly misrepresented the fact that a shareholder meeting had taken place on August 29, 2006; had fabricated minutes of a board meeting that took place that same date; had lied about the existence of an "Exhibit A" to these meeting minutes; and had not, contrary to their representations to the Court, sent "Written Consents in Lieu of Meeting" to Defendant during pre-settlement negotiations in November and December of 2011. (Doc. No. 101.) The Second Circuit had the opportunity to consider these same allegations in ruling on the Circuit Motion. (See Circuit Doc. No. 66-1 at 3-4) (alleging misrepresentations concerning August 29, 2006 shareholder meeting); see id. at 7, 14 (averring that "the alleged August 29, 2006 `Board Minutes'" were not authentic); Circuit Doc. No. 66-2 at 2, 5 (same); id. at 3, 10-12, 18 (alleging that the "Exhibit A" consent form did not exist); id. at 2, 8-9, 13-14 (alleging that Plaintiffs attorneys "misrepresented that they sent" the Written Consents in Lieu of Meeting during presettlement negotiations in November and December of 2011). In fact, Defendant submitted a copy of the April 29, 2016 Letter submitted to this Court to the Second Circuit in support of the Circuit Motion. (Circuit Doc. No. 74-1.) Faced with these virtually identical allegations among others—the Second Circuit concluded that Defendant "ha[d] not presented clear and convincing evidence to meet the high bar for finding fraud on the Court." Chertok, 651 Fed.Appx. at 40. The Court agrees—both then and now —with that conclusion and is compelled to follow it.
Defendant nevertheless argues that the Court erred in considering itself to be bound by the Second Circuit's June 2016 Summary Order, contending that the Circuit's order did "not purport to address any fraud upon the District Court, which, as a matter of law, must be raised in the District Court." (Mem. 20.) But the fact remains that the SDNY Motion and the Circuit Motion were premised on overlapping allegations, and Defendant was attempting to vacate the same $19,192.33 Sanction in both this Court and the Second Circuit. In any event, even if the Second Circuit's decision were non-binding, the Court —after having presided over this litigation for nearly six years and reviewed the record in connection with this motion remains firm in its conviction that Defendant cannot meet the extremely high bar of proving fraud on the Court in order to prevail on his Rule 60(d)(3) motion in this Court. See King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002) (noting that "[f]raud upon the court must be established by clear and convincing evidence"); Morgan v. Gaind, No. 96-cv-6336 (LAP), 2013 WL 443977, at *1 (S.D.N.Y. Jan. 30, 2013) ("Rule 60 motions are generally disfavored and will usually require a showing of exceptional circumstances.") (citing Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008)).
In sum, the record makes clear that the Court's denial of Defendant's contemplated SDNY Motion was warranted in light of the Second Circuit's June 2016 Summary Order and the facts discussed above. Since Defendant has offered no facts or authority that the Court overlooked in issuing its June 16 Order, Defendant has failed to meet the exacting standard for a motion made pursuant to Local Rule 6.3. See Nat'l Union Fire Ins. Co. of Pittsburg v. Las Vegas Prof 1 Football Ltd. P'ship, 409 Fed.Appx. 401, 403 (2d Cir. 2010) ("It is black letter law that a motion for reconsideration may not ... be used as a vehicle for relitigating issues already decided by the [c]ourt." (internal quotation marks omitted)). Accordingly, Defendant's motion for reconsideration is denied.
Perhaps understandably, given Defendant's apparent inability to walk away from a case he voluntarily settled in 2012, Plaintiff also seeks an order enjoining Defendant from: "(1) filing any motion, pleading, or other paper in this or any federal court in the United States arising out of the acts of any person or entity involved in this lawsuit[;] (2) filing any new action or proceeding in any federal court without first obtaining leave of that court; and (3) filing any document in any case to which he is not a party without first seeking leave of the court." (Doc. No. 113.)
The Second Circuit has held that district courts "are not powerless to protect the public, including litigants who appear before the [c]ourts, from the depredations of those ... who abuse the process of the [c]ourts to harass and annoy others with meritless, frivolous, vexatious or repetitive appeals and other proceedings." In re Hartford Textile Corp., 659 F.2d 299, 305 (2d Cir. 1981); see also In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984) ("Federal courts have both the inherent power and the constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions."). Accordingly, "[i]f a litigant has a history of filing `vexatious, harassing, or duplicative lawsuits,' courts may impose sanctions, including restrictions on future access to the judicial system." Hong Mai v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (quoting Iwachiw v. N.Y. State Dep't of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005)); see also Malcolm v. Bd. of Educ., 506 Fed.Appx. 65, 69 (2d Cir. 2012) ("[A] court may prevent a litigant from filing pleadings, motions[,] or appeals upon a showing of extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation or a failure to comply with sanctions imposed for such conduct."). Of course, the propriety of a filing injunction depends on "whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties." Salle v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986). Moreover, "[b]efore a filing injunction is imposed ... a litigant must be provided notice and an opportunity to be heard." Duran v. Kiley, 586 Fed.Appx. 598, 600 (2d Cir. 2013) (citing Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998)). Thus, in determining whether to impose a filing injunction, a court must consider the following factors:
Id. (quoting Safir, 792 F.2d at 24).
Here, there can be no doubt that Defendant has a demonstrated history of filing vexatious, harassing, and duplicative motions for which he appears to lack an objective good-faith expectation of prevailing. There can likewise be no doubt that Defendant's repeated attempts to overturn the $19,192.33 Sanction and the Settlement have caused needless expense to Plaintiff and posed an undue burden on the Court. However, in light of this Order and the Second Circuit's rejection of Defendant's appeals and arguments under Rule 60(d)(3), the Court is hopeful that this 2011 action is nearing its conclusion and that there will be no further motions of this kind. Accordingly, the Court declines at this time to enjoin Defendant from making future filings. Nevertheless, Defendant is on notice that future frivolous filings by him that appear to be designed primarily to harass Plaintiff and its counsel will be carefully scrutinized and may result in sanctions, including a filing injunction.
For the reasons set forth above, IT IS HEREBY ORDERED that Defendant's motion for reconsideration is DENIED. IT IS FURTHER ORDERED that Plaintiffs motion to enjoin future filings by Defendant is DENIED without prejudice to renewal in the event that Defendant makes further frivolous or vexatious filings. The Clerk of the Court is respectfully directed to terminate the motions pending at docket entries 108 and 113.
Slip Copy, 2017 WL 993069
Appeal from two judgments of the United States District Court for the Western District of New York (William M. Skretny, Chief Judge).
Shane C. Buczek, pro se, Derby, NY, for Defendant-Appellant.
Monica J. Richards, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney, United States Attorney's Office for the Western District of New York, Buffalo, NY. for Appellee.
PRESENT: JOSE A. CABRANES, PETER W. HALL, and DENNY CHIN, Circuit Judges.
In these tandem appeals, defendant-appellant Shane C. Buczek, proceeding pro se, appeals from two judgments of the District Court convicting him, following guilty pleas, of (1) one count of possession of a false identification document in violation of 18 U.S.C. § 1028(a)(4), and (2) one count of contempt of court in violation of 18 U.S.C. § 401(3). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues presented on appeal.
First, Buczek argues that he did not knowingly waive his right to counsel because the District Court failed to provide him, during his March 2010 plea allocution on the above charges, with the colloquy required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But in Buczek's related criminal appeal, in which he challenged his bank fraud conviction, we held that his waiver of the right to counsel was knowing and intelligent. See United States v. Buczek, 457 Fed.Appx. 22, 25 (2d Cir.2012) (non-precedential summary order). The reasoning of that decision is equally applicable to Buczek's present appeals inasmuch as the pretrial proceedings in these three criminal cases were intertwined and Buczek's plea allocution on the false identification and contempt of court charges took place only three weeks after the conclusion
Second, Buczek has waived his argument that his indictment on the false identification charge should be dismissed due to a purported violation of the Speedy Trial Act because he did not raise that argument in his opening brief. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C. V., 412 F.3d 418, 428 (2d Cir.2005); LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995) (explaining that a pro se appellant abandons an issue not raised in his appellate brief). Moreover, even if we were to consider the Speedy Trial Act claim, we would conclude that it was waived by Buczek's valid guilty plea. See United States v. Coffin, 76 F.3d 494, 496 (2d Cir.1996) (holding that "[a] knowing and voluntary guilty plea waives all nonjurisdictional defects in the prior proceedings").
Finally, Buczek's argument that the contempt of court statute, 18 U.S.C. § 401(3), is not an "indictable offense" is without merit. See United States v. Guariglia, 962 F.2d 160, 162 (2d Cir.1992); United States v. Morales, 566 F.2d 402, 404 (2d Cir.1977) ("Many cases have tacitly or explicitly recognized the power of grand juries to hand down indictments charging criminal contempt.").
For these reasons, we reject all of Buczek's claims in these tandem appeals. Accordingly, all of his motions that are currently pending are denied as moot.
As a final matter, we note that, during the pendency of these appeals, multiple panels of this Court have dismissed as frivolous approximately thirteen of Buczek's related appeals taken from meritless post-judgment motions he filed in the District Court. In addition, Buczek has filed innumerable frivolous motions in his present appeals, which have greatly delayed the resolution of these matters. Even taking into account Buczek's pro se status, such litigation practices are entirely unacceptable.
We have considered all of Buczek's remaining arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the judgments of the District Court and DENY as moot all of Buczek's pending motions in the captioned cases (U.S.C.A. Dkt. Nos. 10-4753-cr and 10-4768-cr).
Moreover, Buczek is hereby
531 Fed.Appx. 105
