United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
United States of America filed this case to collect a civil
penalty assessed against Defendant Monica Toth
(“Defendant”) for her alleged failure to timely
report her financial interest in, and/or her signatory or
other authority over, a bank account in her name at UBS AG
(“UBS”) in Zurich, Switzerland (the
“Account”) for the 2007 calendar year, in
violation of 31 U.S.C. § 5314 and 31 C.F.R. §
1010.350. [ECF No. 1]. Currently before the Court is
Defendant's motion to vacate sanctions previously imposed
by the court. [ECF No. 130]. For the reasons set forth below,
Defendant's motion is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
September 16, 2015, the Government filed this action against
Defendant. [ECF No. 1]. After repeated attempts to serve
Defendant were met with Defendant's seemingly deliberate
efforts to evade service, Defendant was finally served at her
Massachusetts residence on January II, 2016. [ECF No. 5-2
¶¶ 1-5, 7-8]. Defendant then failed to file a
timely response to the Complaint or to oppose the
Government's motion for entry of default judgment. [ECF
No. 8]. At a hearing on a motion for entry of default on
April 29, 2016, Defendant represented herself pro se
and was advised, given the millions of dollars at stake in
this matter, to retain counsel. [ECF No. 30 (Apr. 29, 2016
Hr'g Tr.) at 11:14-22, 20:3-4, 23:8-13]. Defendant
indicated that she would retain counsel and sought assistance
in identifying representation. [Id. at 12:9-10]. The
Court granted Defendant a thirty-day extension to move to
vacate the default judgment and warned Defendant to not let
additional deadlines pass without responding appropriately.
[Id. at 22:6-24:3, 23:15-19].
Defendant's stated intention to hire counsel, Defendant
did not do so. During hearings on September 20, 2017, and
again on March 12, 2018, the Court repeated its
recommendation that Defendant hire counsel. [ECF No. 105-4
(Sept. 20, 2017 Hr'g Tr.) at 12:15-19; ECF No. 131-18
(Mar. 12, 2018 Hr'g Tr.) at 14:13-15]. Defendant
nonetheless continued to represent herself pro se
until November 15, 2018, when Defendant's current counsel
entered their appearances in this matter. [ECF Nos. 116;
the two years during which Defendant represented herself
pro se, Defendant repeatedly missed deadlines,
refused to comply with discovery rules, and failed to observe
this Court's explicit orders regarding her discovery
obligations. See, e.g., [ECF Nos. 61; 62; 63; 75;
80; 81; 81-1; 82; 83; 84; 86; 92; 93; 93-2; 96; 97; 99; 102;
106; 109]. In response to Defendant's persistent
violations, the Government filed a motion seeking sanctions
against Defendant, which it later amended following further
discovery lapses by Defendant. [ECF Nos. 83, 86, 93]. The
Defendant did not oppose the Government's motion for
sanctions or show sufficient cause as to why its motion
should be denied. [ECF Nos. 97; 99; 102; 106; 109]. The Court
granted the Government's motion on October 15, 2018. [ECF
sanctions the Court imposed on Defendant included accepting
the following four facts as established for the purposes of
1. Defendant had legal control over, and the legal authority
to direct the disposition of the funds in, the Account (and
any sub-accounts), by investing the funds, withdrawing the
funds, and/or transferring the funds to third-parties,
between the date the Account was opened and at least December
2. Should the United States establish that Defendant is
liable for the penalty alleged in the complaint, for the
purposes of calculating the amount of such penalty, the
Account (and any sub-accounts) contained $4, 347, 407 as of
the penalty-calculation date.
3. Defendant had a legal obligation to timely file [a
Financial Bank Account Report (“FBAR”)] regarding
the Account in each calendar year that the Account was open,
including with regard to calendar year 2007.
4. Defendant willfully failed to file an FBAR regarding the
Account with respect to calendar year 2007.
[ECF No. 110 at 12]. The Court also awarded the Government
reasonable costs and attorney's fees incurred in making
its motion for sanctions, consistent with Federal Rule of
Civil Procedure 37(b)(2)(C). Defendant now asks the Court to
vacate its sanctions order. [ECF No. 130].
a “Motion to Vacate, ” Defendant cites no legal
authority to support her request. See [ECF No. 130].
In its opposition, the Government treats the motion as a
motion for reconsideration. [ECF No. 141 at 2]. The Court
agrees with the Government's characterization of the
motion, which seeks relief from an interlocutory discovery
order, rather than a final judgment. The First Circuit has
held that orders imposing sanctions for discovery violations
are interlocutory, rather than final. See Appeal of Licht
& Semonoff, 796 F.2d 564, 570 (1st Cir. 1986)
(citing authority in support of the interlocutory nature of
orders for sanctions). Federal Rule of Civil Procedure 54(b)
provides the Court with authority to grant discretionary
relief from interlocutory orders:
Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b).
language of Rule 54(b) is discretionary: the Court
“may . . . revise” an order.
See Fed. R. Civ. P. 54(b) (emphasis added); see
also Homeowner Options for Mass. Elders, Inc. v. Brookline
Bancorp, Inc., 789 F.Supp.2d 242, 243 (D. Mass. 2011)
(“Whether to reconsider an order is ‘within the
sound discretion' of the Court.” (quoting
Campos v. P.R. Sun Oil Co., Inc., 536 F.2d 970, 972
n.6 (1st Cir. 1976))). Although the Rule provides courts with
the authority to revise interlocutory orders before entry of
final judgment in a matter, the Rule does not provide
specific standards or factors for courts to consider.
See Fed.R.Civ.P. 54(b). Courts within the First
Circuit have found that, “[p]ursuant to Fed.R.Civ.P.
54(b), the Court has the power to afford relief from
interlocutory judgments ‘as justice
requires.'” Brookline Bancorp, 789
F.Supp.2d at 243 (quoting Greene v. Union Mut. Life Ins.
Co., 764 F.2d 19, 22 (1st Cir. 1985)).
has been understood to require courts to grant motions for
reconsideration “in a limited number of circumstances:
if the moving party presents newly discovered evidence, if
there has been an intervening change in the law, or if the
movant can demonstrate that the original decision was based
on a manifest error of law or was clearly unjust.”
De Giovanni v. Jani-King Int'l, Inc., 968
F.Supp.2d 447, 450 (D. Mass. 2013) (quoting United States
v. Allen, 573 F.3d 42, 53 (1st Cir. 2009)).
“Generally, courts should be ‘loathe' to
grant motions for reconsideration in the absence of these
‘extraordinary circumstances.'” Audette
v. Carrillo, No. 15-cv-13280, 2017 U.S. Dist. LEXIS
37962, at *14 (D. Mass. Mar. 16, 2017) (quoting Davis v.
Lehane, 89 F.Supp.2d 142, 147 (D. Mass. 2000)). Because
Defendant has not offered newly discovered evidence specific
to Defendant's discovery failures, presented a change ...