II. Dobry and Richter Deserve To Be Sanctioned For The Unfounded And Defamatory Statements in Their Motion
The desperation of Dobry to avoid turning over the now obviously damning information on his computers is most evident in the outrageous, offensive, and ridiculous allegations that fill his motion. Without a scintilla of evidence, Dobry and Richter irresponsibly accuse Marchese (and his attorney) of a variety of criminal acts, violations of protective orders, and other scurrilous activity. While the motion refers to an affidavit by Dobry to be filed and served on January 3, 2001, Dobry and Richter have failed to provide any such affidavit as pledged by that date nor prior to the filing of this response. What is perhaps in the affidavit is of little consequence, however, because nothing in such a document could possibly offer any legitimate evidentiary support to the ridiculous allegations in the motion.
Dobry and Richter state without any qualification, and without a scintilla of evidence, that Marchese is engaged in securities fraud regarding AZNT because Dobry apparently lost money. While that may explain Dobry’s pathological obsession with harassing and defaming Marchese, it does not make it a fact. To allege such things in a pleading without doing any due diligence to determine the truth or falsity of such an allegation of criminal activity is a clear violation of Rule 11 by Dobry and his counsel. Dobry and Richter should take no comfort in referring to some book by some unknown third-party who, by Dobry’s own admission “reaches no definitive conclusions about the collapse of AZNT prices.” If they have evidence, they dhould present it before they spew such garbage in a court document.
Even more egregious and worth of sanctions are Dobry and Richter’s statements, again without a scintilla of evidence, that Marchese “and his agents” have created a website designed to harass Dobry and have criminally trespassed or “hacked” Dobry’s computers. The earth-shattering evidence to support these serious allegations: “There is no one with any reason or motivation do to [sic: “to do”] these things other than Mr. Marchese and his agents.” (Dobry brief, p. 4). Such as [sic] statement is nothing short of laughable in light of the fact that Dobry has a $1 consent judgment against him in federal court in New Hampshire in which he admitted repeatedly defaming an individual by the name of Michael Zwebner, and Dobry’s own manifesto on his website (attached to Marchese’s amended complaint) identifies scores of individuals as being part of some global conspiracy who no doubt have issues of their own with Dobry. Regardless, to assert that this court should reconsider its order based on such ludicrous conjecture defies credulity. That Dobry and Richter have in this document accused Marchese of criminal trespass without a shred of evidence defies civility.
Finally, Dobry and Richter, as per usual without a scintilla of evidence, accuse Marchese and his undersigned attorney, David Argentar, of violating the protective order entered in this case. They obliquely assert that an Internet posting regarding Dobry by an unknown and unnamed individual “contains information only obtainable from the deposition text.” The undersigned, as an officer of the court, will certify, that the transcript, videotape, CD’s or other text of Dobry’s deposition have never left his office or been copied, they have not been seen by Marchese or anyone else, nor has he orally shared the contents with anyone in any detail, including with Mr. Marchese. If Dobry and Richter would like to accuse the undersigned or Marchese of violating protective orders, they would be best served by meeting the ethical obligations imposed by the federal rules and provide evidentary support more substantial than “it just must be so”.
Fed.R.Civ.P. 11(b) states that by presenting a pleading to a court, an attoreney certifies:
To the best of the person’s knowledge, information, and belief, formed after an inquirey reasonable under the circumstances,…
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(3) the allegations and other factual contentions have evidentiary support…
Rule 11 in substance requires the signing lawyer or party to certify that on the basis of a reasonable factual prefiling inquiry he is informed and believes that the paper has a factual and legal basis and that it is not interposed for delay. <i.Coburn Optical Industries, Inc. v. Cilco, Inc., 610 F.Supp.656 (M.D.N.C. 1985) Richter certified that these outrageous allegations of criminal and contemptuous conduct by Marchese and/or his attorney have evidentiary support based solely and exclusively on the affidavit that Dobry promised he would provide, which no doubt is filled with wild speculation and conjecture. The Seventh Circuit has affirmed the awarding of sanctions against attorneys who make allegations of criminal or contemptuous conduct in a pleading based solely on a client’s affidavit, without any further inquiry or evidentiary support, and should do so in this case. See, e.g., Anderson v. City of Montgomery, 111 F.3d 494 (7th Cir. 1997). The cloak of a pleading is not made of kevlar, shielding an attorney from the consequences of unsubstantiated and irresponsible allegations.
Not only do Dobry and Richter make frivolous allegations regarding Marchese, they have constructed a fantastic daisy chain of relationships with allegedly create a conflict of interest involving Rome Associates, Marchese’s retained computer expert. They make this argument notwithstanding the fact that this court has expressly ruled that any prior affiliation or relationship between Marchese and Rome is no basis for objection to their retention as experts. In fact, Rome Associates has certified that they have never performed any services for any of the individuals and entities that Dobry requested. As such, Dobry now must reach out to the Teamsters as part of his last-ditch effort to avoid facing the consequences of his actions. The court should reject this silliness.
Finally, the scant legal arguments in the brief, which dobry has already had an opportunity to present, are unpersuasive and threadbare. Dobry cannot say how a decision from the Southern District of Indiana, Simon Property Group v. mySimon, Inc., is binding on the Northern District of Illinois, and more importantly, he utterly overstates and misrepresents the court’s decision. The fact that the court decided to appoint the expert in that case hardly means that they must be court appointed in every case as Dobry suggests. Furthermore, Dobry’s wrapping himself in the First Amendment is preposterous, as the information being obtained from his computers has been severely limited by the parameters of the entered protective order, and computer discovery has over the past few years become a common and widely accepted mechanism as more and more discoverable and relevant information is maintained solely in electronic form.
CONCLUSION
It is patently obvious that this legally insufficient motion was filed solely to delay these proceedings and avoid the discovery of relevant and important information. It should of course be denied. It is also apparent that Dobry and his counsel’s contumacious, obstructionist, and irresponsible course of conduct both inside and outside the courtroom will continue unabated unless this Court takes action. Accordingly, Plaintiff Richard Marchese respectfully prays that this Court enter an Order:
A. Denying Dobry’s Motion for Reconsideration;
B. Directing Dobry to comply with all terms and provisions of the Protective Order entered on December 28, 2001, specifically including but not limited to directing Dobry to make his computers available for inspection and copying in one location no later than January 11, 2002;
C. Entering a default judgment against Dobry and setting this matter for prove-up as to damages on a date certain;
D. Assessing sanctions against Dobry and his counsel, Tobin Richter, pursuant to Fed.R.Civ.P. 11, specifically including but not limited to an award of Marchese’s attorneys fees and costs in responding to the is motion and preparing all prior motions to compel or for sanctions;
E. Providing for such other and further relief as the Court deems just and proper.
Respectfully submitted,
RICHARD MARCHESE
By: One of His Attorneys
David S. Argentar
Mandell Menkes & Surdyk, LLC |
