Here's the latest from Pacer...please forgive the inevitable typos; had to copy it from a pdf file.
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MARCHESE’S RESPONSE TO DOBRY’S MOTION FOR RECONSIDERATION AND MARCHESE’S CROSS-MOTION FOR SANCTIONS
Plaintiff, Richard Marchese (“Marchese”), by and through his attorneys, for his response to the motion for reconsideration filed by defendant Gary Dobry (“Dobry”) and for his cross-motion for sanctions against Dobry and his counsel, Tobin Richter, pursuant to Fed.R.Civ.P. 11 states as follows:
INTRODUCTION
Quite simply, Defendant Gary Dobry and his counsel are out of control and have with their instant motion transcended all bounds of proper and civil conduct in this litigation. As if on a quest to plumb the depths of dilatory, contumacious, contemptuous and outrageous conduct, Dobry and his counsel have once again attempted to delay these proceedings, have once again falsely and maliciously strewn unsupported, false, and defamatory allegations against Marchese, and have once again shown nothing but disrespect and contempt for this Court. That Dobry’s motion for reconsideration is deficient as a matter of law and should be stricken is beyond doubt. Nothing in this motion could not have been raised on the multiple occasions when the issue of inspection and copying of Dobry’s computers was previously before this Court, and Dobry has failed to satisfy any of the required elements which would even warrant consideration of this strongly disfavored type of motion.
However, it is not the procedural and substantive deficiencies of the motion which should be of grave concern and serious offense to this Court, but rather the dilatory manner and timing in which this motion was brought; the outrageous, preposterous, and foundationless content of the motion, in which Dobry continues his campaign of harassment and defamation under the cloak of a pleading; and the content of this motion in light of Dobry's ongoing, repeated and deliberate efforts to impede these proceedings and futher defame Marchese. In light of the content of the motion, and when all of Dobry's conduct in this case is considered, this Court should not hesitate to impose the harshest possible sanctions against Dobry and his counsel, pursuant to the Federal Rule of Civil Procedure 11.
PROCEDURAL HISTORY
This action involves allegations by Marchese that Dobry has for the past three years engaged in a[n] ongoing, habitual and offensive campaign to defame and harass Marchese and his family through his posting of hundreds, if not thousands, of false and defamatory messages on the Internet regarding Marchese. Marchese’s initial complaint was filed on September 12, 2000, and on November 27, 2001, Marchese filed an Amended Complaint that includes allegations regarding false and defamatory statements made by Dobry subsequent to the filing of the initial complaint, as well as a claim for invasion of privacy/intrusion upon seclusion based upon Dobry’s publication of private information on the Internet regarding Marchese and his family. The amended complaint also includes allegations that Dobry has not only posted false and defamatory messages himself, but has directed others to do the same. In his answer to the Complaint and Response to Request for Admissions, Dobry has admitted posting many of the messages at issue.
Notwithstanding the nature of the allegations in this lawsuit, notwithstanding the entry of two separate protective orders, and notwithstanding two previous motions for sanctions, Dobry has continued his campaign by posting malicious and harassing statements both on the message boards and on his website during the course of this litigation. These activities are set forth in detail in the Amended Complaint and Marchese’s prior motions for sanctions. In contrast, as Marchese has sworn in an affidavit filed in this case, Marchese has not once posted any messages on the Internet regarding Dobry, either prior to or subsequent to the filing of this lawsuit, nor has he ever dirrected anyone to do so on his behalf. Allegations to the contrary in Dobry’s latest missive are wholly fabricated, without any evidentiary support, and are nothing more than conjecture and wishful thinking on Dobry’s part.
In an effort to determine the extent of Dobry’s campaign of defamation, Marchese on November 8, 2000—over 13 months ago—served Dobry, pursuant to Fed.R.Civ.P. 34, with a request for production and instpection of computers. As set forth in Marchese’s prior Motion to Compel (again, one of at least two Marchese has had to file in this case), Dobry repeatedly refused to produce the computers. Accordingly, on November 9,2001—almost two months ago—Marchese filed a Motion to Compel production of the computers. The motion set forth the scope of information sought and contained argument and citations which supported the production of the computers. At no time did Dobry file a written response to that motion, nor did he ever request leave to do so. On November 14, 2001—over six weeks ago—this Court granted Marchese’s Motion to Compel and directed Dobry to produce the computers for inspection and copying within 21 days. The Court left it to the parties to work out the details of the appropriate protocols to be used for the inspection and copying of the computers.
Subsequent to the entry of the Court’s order granting Marchese’s motion to compel, counsel for Marchese sent Tobin Richter, counsel for Dobry, a proposed agreement regarding the protocols to be used for the Inspection which also contained extensive provisions for the protection of the information obtained from those computers. After Dobry’s counsel responded with objections and counterproposals, Marchese’s counsel presented him with a revised document which largely incorporated all of the protections Dobry was seeking. That of course was still not satisfactory to Dobry’s counsel, and on December 20, 2001, the parties appeared before this Court at which time the Court largely adjudicated the competing proposals. At that hearing, Dobry once again had the opportunity and did in fact make many of the same arguments that he now regurgitates in the pending motion regarding alleged conflicts of interest, the necessity or propriety of Marchese’s expert being appointed by the Court, and the “constitutionality” of this common and routine discovery practice. The Court rejected these arguments.
In order to preclude Dobry’s counsel from furthe delaying matters with surprise and picayune objections to the proposed order, counsel for both parties stayed in the courtroom after the December 20 hearing and went through the draft order prepared by Marchese’s counsel to make sure that the parties were in full agreement (as to form) of the contents of the order so that it could be entered forthwith. Notwithstanding the fact that Dobry’s counsel had at that time stated that he agreed to the contents of the modified order as to form, he once again raised additional objections to the order and delayed its entry for yet another week. After the contents of the order had finally been agreed to as to form, Dobry, try to his form, requested that the inspection be delayed for over three more weeks; three more weeks after the 13 month old request was served, three more weeks after the six week old order was entered directing Dobry to produce his computers. When pressed by Marchese’s counsel for a legitimate reason for the delay, Dobry’s counsel stated that he could not provide one (though it is now apparent that his desire to prepare and file this motion was the reason). Ultimately, the parties agreed on December 28, 2001 and an order reflecting same was entered. Counsel for Dobry confirmed to counsel for Marchese on at least two occasions subsequent to the entry of the order that he would make the computers available by that date.
Shockingly (though perhaps not), three days before the date on which he agreed the computers would be produced pursuant to the protective order which sets forth strenuous protections for and limitations on the information to be retrieved from Dobry’s computers, Dobry and his counsel noticed this Motion for Reconsideration. As set forth below it is not only insufficient as a matter of law, but the manner in which it was filed and its outrageous contents warrant the imposition of the harshest sanctions on both Dobry and his counsel, Tobin Richter.
ARGUMENT
I. Dobry Utterly Fails To Satisfy The Elements Necessary For a Motion to Reconsider
Dobry cites no law in his motion which would justify the reconsideration of the Court’s Order. This is perhaps because the law is clear that his motion should not even be considered by this Court. Motions for reconsideration serve a limited purpose and will be granted only where the Court has patently misunderstoof a party, or has made a decision outside the adversariall issues presented to the Court by the parties, or has made an error not of reasoning but apprehension. United States v. Olsen, 2001 WL 817854 (N.D.Ill. 2001). Motions for reconsideration also may be proper where there has been a controlling or significant change in the law or facts. Id. These types of problems “rarely arise and the motion to reconsider should be equallly rare.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (emphasis added).
Dobry was given at least two opportunities to argue or brief the issues relating to the inspection of the computers and did in fact present the same arguments that he makes in his motion. It would be rather condescending for Dobry to imply that the Court did not understand either the issues or the arguments made by Dobry. Furthermore, there has been no change in either law or “facts” since the order was entered. Certainly, as set forth below, the statements in Dobry’s motion regarding Marchese and others would qualify as “facts” only in an Oliver Stone movie, and nothing Dobry sets forth as ‘facts” is of recent origin or was only recently “discovered” by Dobry. There is simply nothing in Dobry’s motion which warrants reconsideration of the court’s order as matter of law. Dobry and Richter have subsistuted desperation in place of justification in filing this motion. |
