20‐1516 Lemberg v. Simon’s Agency, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of November, two thousand twenty.
PRESENT: REENA RAGGI, RICHARD J. SULLIVAN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
GARY PALMER,
Plaintiff,
SERGEI LEMBERG, ESQ.,
Appellant,
v. No. 20‐1516
SIMON’S AGENCY, INC., Defendant. _____________________________________
For Appellant: SERGEI LEMBERG, Esq., pro se, Lemberg Law, LLC, Wilton, CT.
Appeal from the United States District Court for the Northern District of
New York (Frederick J. Scullin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.
Appellant Sergei Lemberg, attorney for plaintiff Gary Palmer in this action
under the Fair Debt Collection Practices Act, appeals from the imposition of a $500
sanction levied for Lemberg’s failure to comply with the district court’s local rules.
We assume Lemberg’s familiarity with the underlying facts, procedural history,
and issues on appeal, to which we refer only as necessary to explain our decision
to affirm.
An order of sanctions must always be made with restraint. See In re Peters,
642 F.3d 381, 384 (2d Cir. 2011). Nevertheless, “[t]his Court reviews all aspects of
a District Court’s decision to impose sanctions for abuse of discretion,” United
2 States v. Seltzer, 227 F.3d 36, 39 (2d Cir. 2000) (internal quotation marks omitted);
see also Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991), which arises only where
the district court imposes sanctions based on “an erroneous view of the law or on
a clearly erroneous assessment of the evidence,” or where the award “cannot be
located within the range of permissible decisions,” Wolters Kluwer Fin. Servs., Inc.
v. Scivantage, 564 F.3d 110, 113 (2d Cir. 2009) (internal quotation marks omitted).
That is not this case.
As the district court correctly stated, courts have the “inherent power to
sanction” attorneys given “the practical necessity that courts be able to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.”
App’x at 27 n.5 (quoting Revson, 221 F.3d at 78 (internal quotation marks omitted)).
While this inherent power may be exercised when an attorney has engaged in bad
faith conduct on behalf of a client, it may also be exercised “without a finding of
bad faith” where a lawyer negligently or recklessly fails to perform his
responsibility as an officer of the court. Seltzer, 227 F.3d at 41. This exception to
the bad faith requirement includes “violations of court orders or other conduct
which interferes with the court’s power to manage its calendar.” Id. at 42. Thus,
3 insofar as Lemberg contends that the district court was required to find bad faith
merely because it cited Revson, his argument fails because we have made clear that
the source of sanctions authority described in Revson can also cover certain non‐
bad‐faith conduct.
Here, the record supports a conclusion that Lemberg negligently failed to
perform his responsibilities as an officer of the court when, after failing to comply
with a local rule for filing a timely response to a motion to dismiss, he again
violated the Local Rules despite being duly warned that further rules violations
could result in sanctions.
Lemberg maintains that he engaged in no sanctionable conduct because he
reasonably read the Local Rules not to require an affidavit with his motion for
leave to amend. But Local Rule 7.1(a) – which governs motions generally – states
that, “[e]xcept as otherwise provided in this paragraph, all motions and opposition
to motions require a memorandum of law, supporting affidavit, and proof of
service on all the parties.” Local Rule 7.1(a)(2) further specifies that “[a]n
affidavit is required for all motions except” for three enumerated motions, none of
4 which includes motions to amend pleadings pursuant to Federal Rule of Civil
Procedure 15(a).
In the face of this clear language, Lemberg argues that Local Rule 7.1(a)(4) –
which governs motions to amend pleadings and does not mention affidavits – is
more specific and supersedes Local Rule 7.1(a)(2) to provide the exhaustive
requirements for a motion for leave to amend. But the plain language of the rules
belies Lemberg’s interpretation. Local Rule 7.1(a), which, as noted above, sets out
the papers required for all motions, states that “[a]dditional requirements for
specific types of motions . . . are set forth in this Rule.” Any attorney should thus
understand that Local Rule 7.1(a)(4) is incremental, not superseding. Indeed,
nothing about Local Rule 7.1(a)(4) itself indicates that its requirements replace,
rather than supplement, the papers that must otherwise accompany motions.
Consistent with that approach, courts in the Northern District routinely require
litigants seeking to amend pleadings to comply with both Local Rule 7.1(a)(2) and
7.1(a)(4). See, e.g., Randolph v. Graham, No. 9‐19‐cv‐1161 (DNH) (TWD), 2020 WL
2393804, at *3 (N.D.N.Y. May 11, 2020) (explaining that motions to amend “must
comply with the Local Rules” and “include a notice of motion, supporting
5 affidavit, and a copy of the proposed amended complaint”); White v. Verizon, No.
506‐CV‐0617 (GT) (GHL), 2009 WL 3335897, at *3 (N.D.N.Y. Oct. 15, 2009) (“[T]he
motion is procedurally improper in that it fails to include a copy of the proposed
[amended pleading], and an affidavit. See N.D.N.Y. L.R. 7. 1(a)(2),(4).”).
Lemberg argues that he should not be sanctioned for failing to submit an
affidavit when none was necessary because courts accept the facts alleged in a
complaint as true when evaluating motions for leave to amend. But that
argument fails as a matter of logic and practice because facts distinct from those
supporting a claim may be relevant to whether amendment should be allowed.
See, e.g., Solomon v. Human Servs. Coal. of Tompkins Cty. Inc., No. 5:11‐CV‐226 (GTS)
(ATB), 2012 WL 3996875, at *11 (N.D.N.Y. Sept. 11, 2012) (denying amendment
where supporting affidavit offered no explanation for failure to comply with time
requirements of local rules).
Nor are we persuaded that Lemberg was denied adequate process in
connection with the sanctions order. See Seltzer, 227 F.3d at 42 (requiring notice
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20‐1516 Lemberg v. Simon’s Agency, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of November, two thousand twenty.
PRESENT: REENA RAGGI, RICHARD J. SULLIVAN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
GARY PALMER,
Plaintiff,
SERGEI LEMBERG, ESQ.,
Appellant,
v. No. 20‐1516
SIMON’S AGENCY, INC., Defendant. _____________________________________
For Appellant: SERGEI LEMBERG, Esq., pro se, Lemberg Law, LLC, Wilton, CT.
Appeal from the United States District Court for the Northern District of
New York (Frederick J. Scullin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.
Appellant Sergei Lemberg, attorney for plaintiff Gary Palmer in this action
under the Fair Debt Collection Practices Act, appeals from the imposition of a $500
sanction levied for Lemberg’s failure to comply with the district court’s local rules.
We assume Lemberg’s familiarity with the underlying facts, procedural history,
and issues on appeal, to which we refer only as necessary to explain our decision
to affirm.
An order of sanctions must always be made with restraint. See In re Peters,
642 F.3d 381, 384 (2d Cir. 2011). Nevertheless, “[t]his Court reviews all aspects of
a District Court’s decision to impose sanctions for abuse of discretion,” United
2 States v. Seltzer, 227 F.3d 36, 39 (2d Cir. 2000) (internal quotation marks omitted);
see also Chambers v. NASCO, Inc., 501 U.S. 32, 55 (1991), which arises only where
the district court imposes sanctions based on “an erroneous view of the law or on
a clearly erroneous assessment of the evidence,” or where the award “cannot be
located within the range of permissible decisions,” Wolters Kluwer Fin. Servs., Inc.
v. Scivantage, 564 F.3d 110, 113 (2d Cir. 2009) (internal quotation marks omitted).
That is not this case.
As the district court correctly stated, courts have the “inherent power to
sanction” attorneys given “the practical necessity that courts be able to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.”
App’x at 27 n.5 (quoting Revson, 221 F.3d at 78 (internal quotation marks omitted)).
While this inherent power may be exercised when an attorney has engaged in bad
faith conduct on behalf of a client, it may also be exercised “without a finding of
bad faith” where a lawyer negligently or recklessly fails to perform his
responsibility as an officer of the court. Seltzer, 227 F.3d at 41. This exception to
the bad faith requirement includes “violations of court orders or other conduct
which interferes with the court’s power to manage its calendar.” Id. at 42. Thus,
3 insofar as Lemberg contends that the district court was required to find bad faith
merely because it cited Revson, his argument fails because we have made clear that
the source of sanctions authority described in Revson can also cover certain non‐
bad‐faith conduct.
Here, the record supports a conclusion that Lemberg negligently failed to
perform his responsibilities as an officer of the court when, after failing to comply
with a local rule for filing a timely response to a motion to dismiss, he again
violated the Local Rules despite being duly warned that further rules violations
could result in sanctions.
Lemberg maintains that he engaged in no sanctionable conduct because he
reasonably read the Local Rules not to require an affidavit with his motion for
leave to amend. But Local Rule 7.1(a) – which governs motions generally – states
that, “[e]xcept as otherwise provided in this paragraph, all motions and opposition
to motions require a memorandum of law, supporting affidavit, and proof of
service on all the parties.” Local Rule 7.1(a)(2) further specifies that “[a]n
affidavit is required for all motions except” for three enumerated motions, none of
4 which includes motions to amend pleadings pursuant to Federal Rule of Civil
Procedure 15(a).
In the face of this clear language, Lemberg argues that Local Rule 7.1(a)(4) –
which governs motions to amend pleadings and does not mention affidavits – is
more specific and supersedes Local Rule 7.1(a)(2) to provide the exhaustive
requirements for a motion for leave to amend. But the plain language of the rules
belies Lemberg’s interpretation. Local Rule 7.1(a), which, as noted above, sets out
the papers required for all motions, states that “[a]dditional requirements for
specific types of motions . . . are set forth in this Rule.” Any attorney should thus
understand that Local Rule 7.1(a)(4) is incremental, not superseding. Indeed,
nothing about Local Rule 7.1(a)(4) itself indicates that its requirements replace,
rather than supplement, the papers that must otherwise accompany motions.
Consistent with that approach, courts in the Northern District routinely require
litigants seeking to amend pleadings to comply with both Local Rule 7.1(a)(2) and
7.1(a)(4). See, e.g., Randolph v. Graham, No. 9‐19‐cv‐1161 (DNH) (TWD), 2020 WL
2393804, at *3 (N.D.N.Y. May 11, 2020) (explaining that motions to amend “must
comply with the Local Rules” and “include a notice of motion, supporting
5 affidavit, and a copy of the proposed amended complaint”); White v. Verizon, No.
506‐CV‐0617 (GT) (GHL), 2009 WL 3335897, at *3 (N.D.N.Y. Oct. 15, 2009) (“[T]he
motion is procedurally improper in that it fails to include a copy of the proposed
[amended pleading], and an affidavit. See N.D.N.Y. L.R. 7. 1(a)(2),(4).”).
Lemberg argues that he should not be sanctioned for failing to submit an
affidavit when none was necessary because courts accept the facts alleged in a
complaint as true when evaluating motions for leave to amend. But that
argument fails as a matter of logic and practice because facts distinct from those
supporting a claim may be relevant to whether amendment should be allowed.
See, e.g., Solomon v. Human Servs. Coal. of Tompkins Cty. Inc., No. 5:11‐CV‐226 (GTS)
(ATB), 2012 WL 3996875, at *11 (N.D.N.Y. Sept. 11, 2012) (denying amendment
where supporting affidavit offered no explanation for failure to comply with time
requirements of local rules).
Nor are we persuaded that Lemberg was denied adequate process in
connection with the sanctions order. See Seltzer, 227 F.3d at 42 (requiring notice
and opportunity to be heard). When granted leave to move for amendment,
Lemberg received specific notice that sanctions might issue if he committed
6 further violations of the Federal Rules of Civil Procedure or the Local Rules. In
addition, Lemberg had an opportunity to be heard through his motion for
reconsideration, which the district court granted. See Mitchell v. Lyons Pro. Servs.,
Inc., 708 F.3d 463, 468 (2d Cir. 2013). While Lemberg suggests that he lacked
notice that the court was basing sanctions on his negligence rather than bad faith,
a district court is required to provide notice of the authority for sanctions, not the
applicable legal standard. See Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194
F.3d 323, 334 (2d Cir. 1999).
Finally, on the record before us, we identify no abuse of discretion in the
district court’s imposition of a relatively modest sanction of $500. See In re
Sanchez, 941 F.3d 625, 628 (2d Cir. 2019) (explaining that Article III courts’
“inherent sanctioning powers” “include the power to impose relatively minor
non‐compensatory sanctions on attorneys appearing before the court in
appropriate circumstances”). Mindful that the question before us is not whether
we, “as an original matter, would have applied the same sanction,” Sieck v. Russo,
869 F.2d 131, 134 (2d Cir. 1989), but rather, whether it can “be located within the
7 range of permissible decisions,” Wolters Kluwer, 564 F.3d at 113, we conclude that
the district court’s sanction meets this standard here.
We have considered Lemberg’s remaining arguments and find them to be
without merit.1 Accordingly, we AFFIRM the district court’s judgment.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
1 Since Lemberg filed his initial notice of appeal, the parties in the underlying action stipulated to dismissal of the case in the district court. See Lemberg v. Simon’s Agency, Inc., No. 20‐1516, Doc. No. 75. Accordingly, we deny as moot Lemberg’s request that this Court reassign the underlying action to a different district judge. See United States v. Wellington, 255 F. Appʹx 605, 607 (2d Cir. 2007).