Huber v. Marine Midland Bank
| Decision Date | 15 March 1995 |
| Docket Number | D,1943 and 1944,Nos. 1876,1942,s. 1876 |
| Citation | 51 F.3d 5 |
| Parties | William D. HUBER, Plaintiff-Appellant, v. MARINE MIDLAND BANK, Utica Mutual Insurance Company, Maghran, McCarthy & Flynn, Linda A. Hottum, George L. Cownie, and Irving C. Maghran, Jr., Defendants-Appellees. ocket 94-7201(L), 94-7203(L), 94-7205(L) and 94-7211(L). |
| Court | U.S. Court of Appeals — Second Circuit |
Joseph B. Mistrett, Asst. Federal Public Defender, W.D.N.Y., Buffalo, NY, for plaintiff-appellant.
Wm. Dennis Huber, Lancaster, NY, pro se.
Before: FEINBERG, OAKES, and KEARSE, Circuit Judges.
Plaintiff William D. Huber, an attorney who prosecuted a number of actions pro se in the district court, appeals from an order of the United States District Court for the Western District of New York, Richard J. Arcara, Judge, entered on February 8, 1994 ("February 1994 Order"), as supplemented by an August 22, 1994 Decision and Order ("August 1994 Order") entered on remand from this Court, holding Huber in civil contempt for failure to comply with the district court's orders entered in September 1992, February 1993, and September 1993, requiring him to pay $1,500 in sanctions to the court (the "fines") and ordering him to be imprisoned until such time as he pays the fines. On appeal, through appointed counsel, Huber argues principally that the court's finding that he had the ability to pay the fines was not supported by clear and convincing evidence. We conclude that Huber's principal argument misallocates the burden of proof and that none of his arguments has merit.
In 1990-1992, Huber, an attorney admitted to practice in the State of New York, though not in the United States District Court for the Western District of New York, commenced four actions pro se in the Western District in an effort to avoid repaying student loans. In all four actions, summary judgment was granted against him. In the four cases, the court imposed sanctions against Huber totaling $1,500, finding that he had pursued his litigation in a bad-faith and vexatious attempt to harass defendant Marine Midland Bank ("Marine"), which had made the loans, into abandoning its quest for repayments. The court found that Huber had made misstatements of fact and had
acted in bad faith, vexatiously, wantonly and for oppressive reasons throughout this litigation. In order to avoid paying his student loans, Huber has implemented a scheme to harass Marine by running up the cost of litigation to the point where Marine will no longer find it profitable to pursue Huber for repayment of his loans.
Decision and Order dated September 4, 1992, at 9 (footnote omitted). The district court noted that Huber (a) had threatened Marine that "if you don't correct the information [in a certain credit report], I'm going to sue you every month until you correct [it]," id. at 10 (internal quotes omitted); (b) had asserted outrageous claims, including a claim for $56 million for "embarrassment" because Marine included copies of his student loan applications, which contained income tax information, in its papers on a summary judgment motion; and (c) had filed lawsuits and grievance actions against Marine's attorneys and employees in their personal capacities, with the "inten[t] to intimidate [them] into not representing Marine's interests," id. at 13.
In one of Huber's actions, the sanction imposed on him was a fine of $500. Huber appealed, and this Court affirmed both the granting of summary judgment and the imposition of sanctions. In his other three actions, the district court imposed sanctions totaling $1,000, and Huber did not appeal. On September 28, 1993, the court ordered that all of the fines be paid by November 1, 1993.
Huber did not comply with that order, and on November 17, 1993, the district court entered an order to show cause why he should not be held in contempt and imprisoned until he paid the fines. Noting that Huber might not realize the seriousness of his situation, and recognizing the poor quality of Huber's courtroom performance over the years, the court appointed an Assistant Federal Public Defender to assist him.
An evidentiary hearing was held on January 14, 1994. Huber testified that he had no assets. He testified that he had filed for bankruptcy in September 1993 and that he had no income, although his income had been approximately $20,000 in 1989, $35,000 in Following the hearing, the court entered its February 1994 Order holding Huber in contempt. The court noted that
1990, $44,000 in 1991, $44,000 in 1992, and $21,000 in 1993. He testified that he lived with his mother, was fed by his friends, and incurred no bills. Huber presented no financial documentation and testified that even if he were able to pay the fines, he would refuse to do so as "a matter of principle." (Hearing Transcript, January 14, 1994, at 29, 63-64.)
[a]t the January 14, 1994 hearing, Mr. Huber testified that, "as a matter of principle," he will not pay the Court-imposed fines. He maintained that he has not acted with intent to defraud the Court nor abused the judicial process. Further, Mr. Huber claimed that paying the fine would give the appearance that he agreed with the Court's findings. Finally, he testified that he has no income, that he lives with his mother, his friends provide him with meals, and that he filed bankruptcy on September 17, 1993.
The Court notes that although Mr. Huber referred to the bankruptcy proceedings in his testimony, he has not provided the Court any documentation regarding this action. Nor has Mr. Huber filed any evidence regarding his inability to pay the fines or concerning his finances. Moreover, in the Court's Orders of September 4, 1992 and February 24, 1993, Mr. Huber was given the opportunity to present any objections and to state any reasons why his financial circumstances were such that the sanctions would be unduly burdensome. To date, the Court has not received any such information from Mr. Huber, despite his being given at least three opportunities to do so.
February 1994 Order at 5-6. The court concluded (a) that the September 28, 1993 order requiring Huber to pay the fines by November 1, 1993, or be imprisoned if he did not comply, was clear and unambiguous; (b) that "Huber's failure to pay the fine[s] is clear," id. at 7; and (c) that id. at 7-8. As to Huber's testimony that he had no income and no assets, the court stated that, "[b]ased on the Court's three-year history with Mr. Huber, in which he has repeatedly misled the Court as to material facts and misrepresented his status, the Court gives little, if any, credence to this testimony." Id. at 10.
The February 1994 Order gave Huber until 4:30 p.m. on April 1, 1994, to pay the fines and stated that if he failed to comply by that time, he would be imprisoned until he paid. Huber appealed, and this Court, in an order dated April 5, 1994, stayed the February 1994 Order pending disposition of the appeal.
On appeal, Huber challenged the contempt order and sought to reargue the merits of the underlying imposition of sanctions. We rejected the attempted reargument because "a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy." United States v. Rylander, 460 U.S. 752, 756, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983) (internal quotes omitted).
As to the propriety of the contempt citation itself, we focused principally on the district court's statement that Huber had not provided any documentation for his testimony that he had filed for bankruptcy and on the court's emphasis on Huber's statement that he would refuse to pay the fines as a matter of principle, and we concluded that the court had not made a sufficiently clear finding as to Huber's ability to pay. Although the district court had stated that "Huber has it within his power to terminate the civil contempt by prompt payment of the $1,500 fine," February 1994 Order at 8 (emphasis added), that statement had been made in the course of the court's discussion of the doctrinal distinction between civil and criminal contempt, and we did not view this as a finding on the factual question of Huber's Accordingly, in an order entered on June 8, 1994, we continued our April 5, 1994 order staying execution of the district court's February 1994 Order, and we remanded to the district court for further findings. Noting that the district court's initial factfinding effort had been hampered by the lack of any effort by Huber to provide documentation of his alleged financial condition, we instructed the court to take judicial notice of the records in Huber's bankruptcy case and suggested that it might seek additional information as to Huber's financial condition from Marine or from other parties before the court who participated in the bankruptcy proceedings as Huber's creditors. In remanding to require the court "to make an express finding as to Huber's ability to pay the fines imposed," we stated that "[n]othing in the foregoing is intended either (a) to alter the principle that Huber had the burden of establishing his defense of inability to pay, or (b) to require the district court to believe his testimony."
ability to pay. The court had not conclusively rejected his claim of inability, stating instead that the court gave it "little, if any" credence. We concluded that before a party may be imprisoned as a sanction for civil contempt for failure to pay fines, a more explicit finding should be made...
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