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Twyman v. S&M Auto Brokers

United States District Court, N.D. Illinois, Eastern Division

March 28, 2018

Donaldson Twyman, Plaintiff,
S&M Auto Brokers, Saed Ihmoud, and Mohammed Ihmoud Defendants.


          Hon. Virginia M. Kendall, United States District Judge

         This is an odometer rollback case that landed in federal court due to a little known federal statute that federalized the crime of manipulating a car's odometer in order to protect purchasers from potential shady practices committed by used car sellers. This small Federal Odometer Act case began in April of 2016 and burgeoned into an 18-month battle between defense counsel, Joel Brodsky, and Plaintiff's counsel over the purchase of a $35, 000 used SUV from S&M Auto Brokers (“S&M”).. The Plaintiff, Donald Twyman alleged that S&M failed to inform him that the Infiniti SUV had been in a serious accident, had been rebuilt, and the odometer had been rolled back. After the car drove poorly, Twyman brought it to a local Infiniti dealer who reviewed the warranty claim history that showed a discrepancy in the odometer readings and that the car had been in an accident. Twyman filed suit alleging a violation of the FOA and that S&M committed fraud and violated the Illinois Consumer Fraud and Deceptive Business Practices Act when it failed to disclose that the SUV had been damaged in an accident.

         Plaintiff's attorney and Brodsky are no strangers to each other or this type of litigation. Plaintiff's attorney filed a complaint that not only accused S&M of violations pertaining to Twyman's purchase but also alleged that S&M has “a pattern and practice of selling unmerchantable wrecks with substandard repairs and concealing or misrepresenting material facts.” The Court inquired about the ability to resolve what the Court perceived to be a finite and discrete case with few issues and Plaintiff's attorney informed the Court that he would be seeking punitive damages and that the case was valued at an amount much greater than the value of the car. Brodsky responded in kind that Plaintiff's attorney is essentially in the business of extorting clients like S&M and that he just files these lawsuits over and over when there is no basis for doing so. And so the battle began.

         Now one would think that a federal judge would not hear parties square up so heatedly at their first appearance before the Court, but unfortunately, that is not always the case. Yet, the Court has an obligation to protect not only the legal process but also the clients who are represented by the litigants which is why district court judges have initial status hearings and question the lawyers about the cost of litigation and the value of an award. Recognizing the Court's inherent authority to control those litigation costs, the Court immediately clipped the wings of the lawyers by refocusing them to the reality of their dispute:

So you can all go and interview all of these people and bills tens of thousands of dollars to do discovery on the case, and you hire an expert and pay that expert another 10 or 20 thousand dollars. . . all over a dispute that has probably much less value than the 56 [thousand] that the plaintiff has demanded in settlement. So you all need to be lawyers and recognize that you have clients that have concerns. He's got a car that he doesn't think works well . . .and you've got a dealership that is going to spend an awful lot of money defending it. I think you both need to sit down at the table and discuss this.
Status hearing 6/30/17.

         The Court then limited the discovery period to a period of three months so as not to have the lawyers expend too much money taking into account Fed.R.Civ.P. 26 and the need to balance the proportion of the costs of litigation with the value of a potential award in Plaintiff's favor.

         Shortly thereafter, the parties appeared again. This time to argue over when and where depositions would take place. Brodsky informed the Court that he would be in Florence, Italy at his vacation home for one month and sought an extension of time to respond to various motions and discovery which the Court granted. During this status, Brodsky accused Plaintiff's counsel of “recidivist conduct” because “he has filed three other lawsuits” for the same type of claim. The Court managed to calm the parties down once again and once again instructed the lawyers talk to each other before filing motions and to allow for lawyers to take vacations. Within days, the parties were battling about requests to admit which Plaintiff's counsel filed and noticed to be heard when Brodsky returned from his vacation and the Court entered its first written warning to act reasonably and professionally. (Dkt. 35 “The parties should act professionally instead of antagonistically toward each other and recognize that as officers of the Court they are expected to treat each other reasonably and professionally.”)

         Unfortunately, that first shot across the bow from the Court had little effect on Brodsky nor did his vacation in Italy. Within days of his return, he filed a motion for protective order seeking to bar Plaintiff from issuing document subpoenas, and striking Plaintiff's Third Set of Interrogatories and, Requests for Production and Requests to Admit because “Plaintiff does not consider a lawsuit as a way to redress a legitimate grievance by uncovering the truth and applying the law, but instead considers it to be a profit making, fee generating, enterprise for attorneys.” (Dkt. 41 at 8.) Brodsky requested that the Court award him reasonable fees for having to bring the motion. In response, Plaintiff set forth the requests he had made to Brodsky, all within the Federal Rules of Civil Procedure, all relevant to proving his case, and how Brodsky had responded to his email requests by calling Plaintiff's counsel “an extortionist” who is “really obsessed” and refusing to comply with Plaintiff's discovery requests. (Dkt. 45).

         Although the nature of the dispute between the parties was limited to a narrow factual and legal issue, the conduct of Joel Brodsky, soon overshadowed the legal case and became the focus of numerous court hearings. In the eighteen months since Twyman filed his lawsuit, the docket includes well over 200 docket entries, nearly three quarters of them attributable to disputes regarding Brodsky's behavior defending the suit. The parties filed a number of requests for sanctions throughout the litigation and the Court admonished Brodsky multiple times to curb his uncivil and vitriolic conduct. Finally, the Court conducted a hearing regarding allegations that Brodsky made against Plaintiff's expert witness and the Court warned that sanctions may result if the Court determines that the allegations were frivolous or bought in bad faith.[1] Based on his conduct throughout the course of this lawsuit, and as explained in detail below, the Court invokes its inherent authority to sanction Brodsky.


         Throughout the course of the litigation, the Court has observed first-hand Brodsky's unprofessional, contemptuous, and antagonistic behavior directed at opposing counsel. These have included false accusations and inappropriate diatribes in pleadings, where he repeatedly accused opposing counsel of lying, extortion, attempting to create a false record, and repeatedly requested sanctions without any good-faith basis. (See, e.g., Dkt. Nos. 67, 106, 138, 151, 155.) Brodsky also sent numerous vitriolic emails to opposing counsel during the course of the litigation, including asking opposing counsel “How do you even call yourself a lawyer? You are an embarrassment to the profession, ” and accusing him of being an extortionist and manufacturing the case. (See, e.g., Dkt. 166-1). This pattern of behavior continued at a deposition of one of Defendants' experts. There, Brodsky was confrontational and antagonistic and made numerous speaking objections, improperly instructed the witness not to answer, in addition to cursing several times on the record (Dkt. 160 at 58:19, 73:21), making several inappropriate ad hominem attacks against opposing counsel, including calling him a liar (id. at 71:21-22), and accusing counsel of engaging in a criminal enterprise (id. at 122:6-19).

         Ironically, in many of his diatribes, Brodsky has accused opposing counsel of over-litigating what he often referred to as a “small-claims” case, yet Brodsky filed a number of baseless or unnecessary motions himself prolonging the litigation and the costs of litigation. These include a motion opposing plaintiff's ministerial motion to correct a typo in his expert's report (Dkt. 62); a motion in limine seeking the Court initial review of whether Defendant's expert reports were sufficient (Dkt. 96); a frivolous motion to strike Plaintiff's Rule 56 statement; and a baseless motion to seal a recording of the deposition referenced above in order for it not to be accessed on the public record. (Dkt. 162).

         Of special concern for the Court, however, are allegations Brodsky leveled at Donald Szczesniak, Plaintiff's expert witness. In his reply in support of his motion in limine regarding expert witnesses (Dkt. 102), Brodsky leveled charges against Szczesniak for allegedly fabricating an expert report in an unrelated matter involving Diane Weinberger. Two and a half weeks later, Brodsky filed another motion regarding Szczesniak, this time asserting that Szczesniak had damaged Weinberger's fence. (Dkt. 108.) That motion also raised a number of alleged unrelated civil judgments against Szczesniak, relating to his auto repair business. (Id. at 3.) The motion also accused Szczesniak of sending Brodsky an anonymous facsimile transmission of a newspaper article in an “attempt to intimidate the Defendants [sic] attorney from further searching into his background.” (Id.) This motion sought an order of “indirect criminal contempt” against Szczesniak and sought to have the Court make an immediate referral to the United States Attorney for a criminal investigation to be launched against Szczesniak. (Id. at 4.) The Court summarily rejected Brodsky's motion and reminded him that there were proper ways to challenge an expert, none of which were followed, and that if he believed that criminal activity occurred, he himself could call the USA and make a complaint. (Dkt. 110.) Nonplussed by the Court's refusal to act as his bully, Brodsky filed a motion seeking sanctions against Szczesniak and against Plaintiff for retaining him. (Dkt. 121.) ...

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