S.E.C. v. BILZERIAN
729 F.Supp.2d 9 (2010)
United States District Court, District of Columbia.
November 1, 2010.
A. Hammer's First Motion to Vacate
Hammer makes three arguments in favor of his Motion to vacate the 2010 Order holding him in contempt. First, he argues that the fact that he had withdrawn from the Steffen and Puma lawsuits prior to the Court's entry of its 2010 Order is newly available evidence justifying relief under Rule 59(e). Second, he argues that the Court's failure to consider that same evidence is a Rule 60(b)(1) mistake that requires vacation of the Court's 2010 Order. Finally Hammer contends that, under Rule 60(b)(5), it is no longer equitable for the 2010 Order to apply to him prospectively in light of the hardship it has caused him and the fact that he has distanced himself from Bilzerian and taken remedial
measures to "bring Bilzerian to Justice." First Mot. to Vacate 1, August 9, 2010, ECF No. 1099. Each of these arguments is unpersuasive.
i. Hammer's 59(e) Newly Available Evidence Argument Fails.
Hammer says that the fact that he had withdrawn from Steffen and Puma lawsuits prior to the Court's entry of the 2010 Order is newly available evidence that justifies relief under Rule 59(e). First Mot. to Vacate 4-5, August 9, 2010, ECF No. 1099. As discussed above, Rule 59(e) allows a court to correct its own mistake in the period immediately after entry of an order. Newly available evidence can provide justification for such a correction. Firestone, 76 F.3d at 1208. Rule 59(e) does not, however, afford Hammer an opportunity to raise new arguments that he could have raised before the Court entered its 2010 Order, nor is it a chance for him to correct poor strategic choices. The evidence Hammer alludes to is not newly available; it is simply newly received. Hammer had actual notice of the 2001 Order; he was held in contempt for violating it before; and he was ordered to show cause by September 11, 2009, as to why he should not be held in contempt for violating it again. Despite all of this, Hammer waited nearly a year from the date that he was ordered to show cause to withdraw from these lawsuits. Hammer has no excuse for participating in these lawsuits at all, much less for dragging his heels for nearly a year before withdrawing from them. Accordingly, he has only himself to blame—not this Court—for the fact that notice of his eventual withdrawals arrived two days after the Court entered its 2010 Order. This is not newly available evidence that justifies granting a Rule 59(e) motion.
Moreover, even if Hammer had withdrawn from these lawsuits within a reasonable time, this Court still would have held him in contempt for violating the 2001 Order. This Court's 2010 Order had multiple objectives. Among them were to hold Hammer in contempt for violating the Court's 2001 Order, to order Hammer to purge his contempt by ceasing any representation of Steffen or Puma, and to order Hammer to file a sworn statement with this Court that he had complied with those conditions on or before July 23, 2010. To his credit, Hammer's July 15, 2010, Declaration of Compliance does indeed show that he had complied with the last two objectives of the 2010 Order even before this Court issued it, but those withdrawals do not—and they could not—bring him into compliance with the Court's 2001 Order. It makes absolutely no difference when Hammer withdrew from the cases; by pursuing them at all without seeking this Court's permission, he violated the 2001 Order and was rightly held in contempt for it.
Hammer makes an additional argument that requires the Court's attention. He points out that in its May 11, 2009, Memorandum Opinion, this Court stated the following:
Movant Ernest Haire has also alleged that Jack Rabbit Limo Service, Inc., is in contempt of this Court's order. Indeed, it appears that Jack Rabbit Limo Service was in contempt of this Court's order. However, the Honorable Judge Martha J. Cook, in the Thirteenth Circuit, Hillsborough County, Florida, dismissed the Jack Rabbit suit.... Accordingly, because civil contempt is designed to compel compliance with a Court order or compensate a complainant for losses sustained, the civil contempt proceeding is now moot as to Jack Rabbit.