The Judge and the Suspiciously Dead Grandfather

"[G]iven the issues surrounding Mr. Liebowitz’s credibility and his failure to provide any information or documentation regarding his grandfather’s death, Mr. Liebowitz’s reiteration could not sufficiently discharge his obligations to the Court."

|The Volokh Conspiracy |

All I can say is, "Yow." From Berger v. Imagina Consulting, Inc., decided Nov. 1, 2019 by Judge Cathy Seibel:

On April 5, 2019, Defendant filed a letter with the Court requesting a discovery conference. That same day, I granted Defendant's request and scheduled a discovery conference for April 12, 2019 at 11 a.m. I also ordered Plaintiff to respond to Defendant's letter by April 9, which Plaintiff did. On April 12, the Court held the discovery conference, but Plaintiff's counsel, Richard Liebowitz, did not appear and did not call or email the Court or Defendant's counsel to explain his absence. That same day, I ordered Plaintiff to show cause in writing, on or before April 17, 2019, why he failed to appear for the conference and why he should not be required to pay Defendant's attorney's fees for the time expended to appear at the conference. The Court also rescheduled the conference for April 18, 2019.

By letter dated April 15, 2019, Mr. Liebowitz advised that he had missed the conference because of a death in the family which was an "unexpected urgent matter" to which he had to attend. He also said he would be out of the office on April 18 and asked to appear by phone at the rescheduled discovery conference.

The conference was held by phone on April 18. Mr. Liebowitz represented that the death in the family occurred on the morning of April 12 and apologized for not letting Defendant's counsel and the Court know. During the conference, issues were discussed that reflected negatively on Plaintiff's counsel's credibility. For example, Plaintiff had answered interrogatories saying his damages calculation had relied on "contracts, invoices, [and] licensing agreements," but when Defendant requested those documents, Plaintiff said he could not produce them without a protective order. After Defendant agreed to a protective order and the Court signed it, Plaintiff still produced nothing, despite twice promising to do so.

Further, Defendant's counsel represented that Mr. Liebowitz had told Defendant's counsel that he could not comply because he was out of the country due to an emergency, when in reality he was at a trade show in Europe trying to drumup business.

At that point, concerned about Mr. Liebowitz's credibility and the possibility that he was trying to increase costs for Defendant's counsel, I determined that I could not merely accept Mr. Liebowitz's representation that he missed the April 12 conference because of a death in the family, and directed that, among other things, by May 1, Mr. Liebowitz provide evidence or documentation regarding who died, when, and how he was notified. I also permitted Defendant's counsel to submit his billing records relating to the discovery dispute by May 1, with Mr. Liebowitz having until May 15 to submit opposition to Defendant's application that Plaintiff cover thosefees. {I also expressed concern over how Plaintiff's claim of $5000 in damages could possibly have been made in good faith.}

By letter dated May 1, 2019, Mr. Liebowitz represented that his grandfather had unexpectedly died on April 12, 2019 and that Mr. Liebowitz was needed to assist with certain customs for which arrangements had to be made in advance of the Sabbath. That same day, I endorsed the letter as follows:

"This letter is not responsive to my instruction. Mr. Liebowitz was to document who passed away, when the person passed away and when Mr. Liebowitz was notified. The reason I requested documentation is that there is reason to believe Mr. Liebowitz is not being candid. So a letter from him does not advance the ball. When someone dies, there is documentation including a death certificate and (almost always) an obituary, and nowadays one's phone usually contains evidence of what one was told and when. Mr.

Liebowitz may have until 5/3/19 to supplement this letter."

On May 3, 2019, Plaintiff filed a notice of settlement. On May 7, 2019, I advised as follows:

"I'm glad the parties have resolved the case (and, I presume, the issue of Plaintiff's counsel's expenses for the April 12 conference), but there remains one open issue: Mr. Liebowitz's failure to document the death in the family that he says caused him to miss the conference. He was supposed to address that issue by May 3, but I will give him until May 9. Even if Defendant has been made whole, I still need to satisfy myself that there is no need for disciplinary or other inquiry."

On May 9, Mr. Liebowitz filed a Declaration in which he "re-certif[ied]" that the statements in his April 15 and May 1 letters were true, and he stated that he believed that his Declaration discharged his obligation to the Court.

On May 13, I responded that Mr. Liebowitz's May 9 Declaration did not resolve the matter because, given the issues surrounding Mr. Liebowitz's credibility and his failure to provide any information or documentation regarding his grandfather's death, Mr. Liebowitz's reiteration could not sufficiently discharge his obligations to the Court. I therefore issued an order to show cause, requiring Mr. Liebowitz to provide documentation or other evidence (apart from his own word) that demonstrated that a death in the family had occurred that prevented him from attending the April 12 conference and timely notifying the Court and Defendant's counsel of his inability to attend.

Rather than comply with the Court's order to provide the above documentation, on May 16, Mr. Liebowitz again submitted a Declaration reiterating his belief that his statements contained in the April 15, May 1, and May 9 letters were sufficient to discharge his obligations in response to the Court's order to show cause.

On July 26, I ordered Mr. Liebowitz, under pain of contempt, to provide a copy of his grandfather's death certificate so as to support his claim that he could not attend the April 12 conference, nor provide timely notice to the Court or opposing counsel, as a result of his grandfather's death. In response, Mr. Liebowitz submitted another Declaration on August 12, stating that he believed that his previous letters sufficed to fulfill his obligations to the Court (in spite of the fact that I explicitly requested documentation other than "his say-so," and that he should not be required to submit his grandfather's death certificate because it is "a personal matter."

As I noted in my August 19 response to Mr. Liebowitz's letter, however, although the death of a family member is certainly a personal matter, questions regarding Mr. Liebowitz's candor before the Court are professional in nature.   I reassured Mr. Liebowitz that, if he was concerned about the death certificate being available on the public docket, he was welcome to provide the document directly to my chambers to ensure his privacy.  I also made clear that, should he fail to provide the requested documentation by August 26, he would be held in contempt of court and subject to sanctions, including monetary sanctions and/or referral to this Court's Grievance Committee.

On August 26, the day Mr. Liebowitz was required to provide his grandfather's death certificate pursuant to my August 19 order, Mr. Liebowitz instead submitted another Declaration. In this Declaration, Mr. Liebowitz argued that he was not in contempt because this Court's request for his grandfather's death certificate was unlawful, as it "likely constitutes a usurpation of judicial authority or a breach of judicial decorum"; his previous Declarations complied with my previous orders; "there [was] no basis to impose monetary sanctions"; and the Court's assurance that his grandfather's death certificate would not be made public was insufficient to protect his right to privacy.

On September 27, I endorsed Mr. Liebowitz's latest Declaration, stating that:

"There is nothing unlawful about my August 19, 2019 order. There was also nothing unclear about it. Likewise, Mr. Liebowitz's failure to comply is apparent beyond any reasonable doubt. Finally, he has not diligently attempted to comply. To the contrary, while maintaining that the death occurred (and thus implicitly conceding the existence of a death certificate), he has repeatedly refused to provide it, even after the Court made clear that his "good faith declarations" were insufficient and after the Court agreed that the document need not be publicly filed. He has not shown or even alleged an inability to comply."

I therefore declared Mr. Liebowitz to be in contempt of court, and ordered that, should he fail to comply with my order and provide the requested documentation by October 2, he would be subject to monetary sanctions of $100 each business day until he complied.  I also informed Mr. Liebowitz that, "[s]hould this sanction prove insufficient" to ensure his compliance, "additional or different sanctions [would] be considered."

On October 2, Mr. Liebowitz wrote a letter to my chambers requesting an in-person conference to discuss my September 27 order, and also requesting a stay of that order "[f]or just cause" until the conference could be held. I denied his request, noting that Mr. Liebowitz's letter had not stated what purpose would be served by an in-person conference, nor had it supplied any justification for a stay of my September 27 order. Mr. Liebowitz submitted another letter the next day, October 3, reiterating his request for an in-person conference to discuss his grandfather's death certificate and for a stay "[f]or just cause." I again denied the application, because Mr. Liebowitz had not articulated any purpose that the conference would serve, nor did he supply any cause to stay my September 27 order.

I further ordered Mr. Liebowitz to refrain from filing any further requests for a conference unless he could explain specifically what purpose would be served by the conference and to refrain from filing any further requests for a stay of my September 27 order unless he could specifically state a justification for a stay.  I notified Mr. Liebowitz that his first payment under the contempt sanction was due to the Clerk of the Court on Monday, October 7.

On October 7, Mr. Liebowitz sent a letter requesting a two-week extension to deliver his grandfather's death certificate and requesting that the monetary sanctions be stayed until after the extension had elapsed.  This request had come at 8:34 p.m. on October 7, well after the Clerk's Office had closed. That same night, I denied Mr. Liebowitz's request for an extension.  As of November 1, 2019, Mr. Liebowitz has not made any of his required payments. By the Court's count, Mr. Liebowitz was obligated to pay $300 on October 7, 2019; $400 on October 15, 2019; $400 on October 21, 2019; and $500 on October 28. { I will not count Yom Kippur, which fell October 9, 2019, as a business day[, and] Monday, October 14, was a national holiday.}

Richard Liebowitz, Plaintiff's counsel in this case, is now in contempt of my August 19, 2019 and September 27, 2019 orders. The $100 fine he accrues each business day has plainly been ineffective to coerce compliance with the August 19, 2019 Order.

Accordingly, the daily contempt sanction is hereby increased to $500 a day, effective November 6, 2019. Starting on that date, Mr. Liebowitz will be sanctioned $500 per business day (payable on Monday of each week, or Tuesday if the office of the Clerk of Court is not open on Monday) until he has complied in full with my August 19, 2019 and September 27, 2019 Orders.

Further, Mr. Liebowitz is hereby ORDERED to appear before this Court in person on November 13, 2019 at 10 a.m., and there and then SHOW CAUSE why he should not be incarcerated until such time as he complies with the above-described orders (and, if applicable, the instant order).

Failure to appear as directed will subject Mr. Liebowitz to arrest by the United States Marshals Service without further notice.

For more posts about judges and Mr. Liebowitz, see here, here, and here.

NEXT: Kellyanne Conway Says the FDA Has No Jurisdiction Over Vape Shops. The FDA Disagrees.

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  1. 10am Wednesday is marked on my calendar.

    So how does he get himself out from under this? Does the Judge force him to admit in open court that he lied, multiple times? What type of sanctions could the court then impose at that point?

    1. He does his time and finds a new career?

      1. Is being a copyright troll really a “career”?

      2. He can stay locked up until he purges the contempt, that is pays up and delivers teh death certificate (if it exists).

        1. That is the problem, there is no death certificate (I am willing to bet.) So how can you cure the contempt with something that does not exist? Absent public groveling.

          1. I’m pretty sure that the public grovelling (and admitting to being a lying-liar that lies a lot from Lietopia, Ohio) is the point of this pettiness.

    2. He has to admit he lied to the Court. He’ll still face some sort of punishment, but it will be less than what he is now ringing up by not just filing a declaration fessing up.

  2. As I see it, you have two choices here, kill grandpa or kill yourself.

    1. kill grandpa

      And get the death certificate backdated.

      1. Or invent a time machine. Honestly that may be his best option.

        1. invent a time machine

          The mere existence of his problem demonstrates that he’s too late to do so.

    2. Grampa got run over by a reindeer.

      1. ♪♫♪ … And then the reindeer ate the death certificate. ♫ ♪ ♪

  3. Judge can remove him from federal district roll (if she is federal). File a complaint with Bar or OPC, and can bar him from her court.

    1. She is. She’s a liberal moron who decided that the “bear” in “keep and bear arms” did not mean outside the home.

      1. “liberal moron?”

        Are you unfamiliar with, and/or unafraid of, Prof. Volokh’s self-described civility standards?

        Or, more likely, are you familiar with the manner in which those ostensible standards are applied, and figure you’re safe?

      2. RWH:

        One thing that mature adults do is separate their general opinions of people from their decisions in a specific case.

        As an example, there are plenty of liberals who, as you might imagine, don’t like Justice Gorsuch very much, especially given the way that seat was filled.

        Nonetheless, those same liberals- at least the mature ones- can acknowledge that he has cast important votes they agree with, such as cases involving American Indians and treaties.

        You obviously have the right to disagree with various judges’ Second Amendment jurisprudence. Indeed, despite having vastly different politics than yours, I would agree that there’s a principled argument that “bear arms” requires some sort of right to carry.

        But that doesn’t mean that lawyers should have a right to lie to the judge about deaths in their families. That has nothing to do with any judge being right or wrong about the Second Amendment. You should be able to admit that even a judge you may not like has the right to expect that lawyers are honest with her.

  4. November 13th 10am Eastern Standard…

    Get your popcorn ready.

  5. At what point do you either come clean or forge an obituary?

    1. If he shows up with a obit, but not a death certificate, the judge is going to smack him upside the head.

  6. Professor — the first two links in the final sentence are the same.

      1. Looks like yes, and it’s fixed. Thanks. Been fun following this guy’s career.

    1. Whoops, fixed, thanks!

  7. DOG
    WITH
    BONE

  8. I am rarely this excited.

  9. This is better than most of what’s on TV.

    1. This is why the good Professor gets traffic here: he presents us with the juicy stories from his neck of the woods.

      1. That, and lathering up the clingers by nipping at the liberal-libertarian mainstream’s ankles.

    2. I don’t even remember an episode of “Night Court” with this story line. 🙂

  10. His next step is to claim diplomatic immunity…
    what does he have to lose?

    1. That, or the sovereign citizen gambit. Or, both — he might as well go all-in at this point.

    2. From where is he a diplomat? The People’s Republic of Stupid?

  11. Just pulled the docket. The text orders are worthy of a “yow” as well:

    ORDER denying 56 Letter Motion for Conference: On 10/2/19, Mr. Liebowitz asked for a conference and a stay of my 9/27/19 Order. I denied the application, stating, “Mr. Liebowitz’s letter does not state what purpose a conference would serve, nor does it provide any cause that would justify a stay of my September 27 Order.” Today Mr. Liebowitz filed another letter requesting the same relief. It likewise fails to state what purpose a conference would serve or provide any cause that would justify a stay of my September 27 Order, and therefore the application is denied. As evidenced by his responses to my earlier orders regarding the death certificate, Mr. Liebowitz seems to think that it makes sense, upon learning that an submission is insufficient, to keep filing similarly insufficient sumbissions. It does not. Mr. Liebowitz is ordered to refrain from filing any further requests for a conference unless the request explains specifically the purpose to be served by the conference. Mr. Liebowitz is further ordered to refrain from filing any further requests for a stay unless the request explains specifically why a stay would be justified. Mr. Liebowitz’s first payment of the contempt sanction is due in the Office of the Clerk of Court on Monday, October 7, 2019. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 10/04/2019)

    ORDER denying 58 Letter Motion for Extension of Time: Application denied. Mr. Liebowitz has known since May that he was required to provide documentation of the death, and was specifically ordered in July to provide the death certificate. He has had plenty of time to obtain it and I cannot fathom why he did not prioritize that task. Nor do I see any reason to stay the sanctions order. Mr. Liebowitz was supposed to pay his contempt fine today, and the application for an extension came at 8:34 pm, well after the Clerk’s Office closed. If that means that Mr. Liebowitz did not pay the $300 he has accrued beginning October 2, 2019, that means he is in contempt not only of my 8/19/19 Order, but also of my 9/27/19 order. I really do not want to have to pile contempt sanctions on top of contempt sanctions, so Mr. Liebowitz needs to stop trying to put off his obligations and instead he should just meet them. He needs to pay the $300 tomorrow, and he needs to submit the death certificate if he wants to stop additional payments from accruing. (HEREBY ORDERED by Judge Cathy Seibel)(Text Only Order) (Seibel, Cathy) (Entered: 10/07/2019)

  12. If I were his lawyer, I’d be arguing (assuming his grandfather is indeed, dead),

    Well, the guy died 10 years ago. But, at the time, it was an urgent matter. And my client said that the death *was* an urgent matter, and not that it IS an urgent matter. And, 10 years ago, the death was quite unexpected. So, what he told you was, technically, correct.

    (If grandpa is still alive, then I’m with some of the earlier posters…inventing a time machine is the only way out that I can see.)

    More seriously, I think his best way to lessen the harm to his career is to tell the judge that he had lied, that it was due to alcohol/drug addiction, and that he is going to check himself into a rehab facility. (And, show her his acceptance form to the rehab clinic at this time.) From what I’ve read about attorney discipline in the Cal journals; judges–and state disciplinary committees–go a bit easier on you if there is an addiction involved. “Sorry judge, I’m a pathological liar, and therefore have a medical condition.” is probably not going to engender a lot of judicial sympathy, on the other hand.

    1. “His headstone from 1972 is way overgrown and I had to go clean it up.”

    2. The problem is that he IS the lawyer not the client.

    3. She’s going to demand documentation of the alcoholism or drug addiction too.

      The ONLY way to play this, at this point, is to just fess up about the lie and throw himself on the mercy of the Court. And he’s still going to face a severe sanction- indeed, at the end of this process, he may very well lose his bar license.

  13. If it were anyone else but a copyright troll you could find some sympathy for the guy.

    Alas, it’s clear he is beyond human redemption.

    1. No sympathy here. The legal system runs on the ordinary courtesies that we grant each other. Technically, we are supposed to be 100
      percent full steam ahead zealously protecting our clients’ rights, but we are also human beings, and when someone has a death in the family, we need to extend common courtesies.

      But that only works if lawyers tell the truth about stuff like this. If lawyers routinely lied about this sort of thing, we’d all have to turn into complete douchebags to make sure that some client isn’t hurt by opposing counsel’s lie.

      So you just don’t do this. You tell the truth. Honestly, I have on occasion even called an opposing counsel and had no excuse- just said “I had a really busy week and I couldn’t get to your discovery request until it was too late to get it out, can I have a couple of days?”. And that’s better than making up a death in your family.

      And then, once you get into this situation with the judge, at that point, YOU HAVE TO FESS UP. That’s really, clearly, all this judge ever wanted this guy to do. Just admit you were caught in a lie. He wouldn’t do it, and now he’s in big trouble with an Article III judge.

  14. I never attended law school but I’m pretty sure, at some point, law professors mention that you shouldn’t lie to a judge.

  15. Look at how many chances this turkey was given before the judge finally held him accountable. This is why attorneys like Liebowitz exist. They are given break after break and an endless series of “second chances.” The times they are held accountable are far outweighed by the number of times they are allowed to get away with rules violations, ignoring deadlines, false assertions, etc…all while imposing additional costs on the other parties and increasing their settlement leverage.

  16. If his grandfather is really dead, it still might be difficult for him to obtain a death certificate. In some states, only immediate family members can obtain copies of recent death certificates without a court order. Here, of course, the judge would be happy to sign an order directing the Dept. of Vital Records to provide a copy of the death certificate.

    1. If that is the case, then he should explain that to the judge. Give her an obituary, and tell her you tried to get a death certificate but were denied it by the Dept. of Whatever Bureaucrats Issue Death Certificates. Had he done that, then it would be very hard for her to hold him in contempt.

    2. BTW, this lawyer is based in NY. Although maybe his grandfather is in another state. In any case, the NYC website states that the following relatives may obtain a death certificate:

      Spouse
      Domestic partner
      Parent
      Child
      Sibling
      Grandparent
      Grandchild
      Informant listed on the certificate
      Person in control of disposition
      Niece/Nephew
      Aunt/Uncle
      Great grandchild and great-great grandchild
      Grandniece/Grandnephew

      https://www1.nyc.gov/site/doh/services/death-certificates.page

  17. Perhaps he wasn’t at all a well grandfather, and they thought best to bury him just to be on the safe side?

    He was getting better?

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