    10-2820-cv
    Robertson v. Dowbenko


                            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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 3rd day of November, two thousand eleven.

    PRESENT:
                RALPH K. WINTER,
                GERARD E. LYNCH,
                SUSAN L. CARNEY,
                      Circuit Judges.
    _____________________________________

    Julian H. Robertson, Jr.,

                             Plaintiff-Counter-
                             Defendant-Appellee,

                     v.                                         No. 10-2820-cv

    Uri Dowbenko,

                             Defendant-Counter-
                             Claimant-Appellant,

    John Doe, also known as Al Martin; Conspiracy
    Digest L.L.C.; National Liberty Press L.L.C.,

                      Defendants.
    _____________________________________


    FOR DEFENDANT-APPELLANT:                       Uri Dowbenko, pro se, Pray, Montana.
FOR PLAINTIFF-APPELLEE:                          Richard T. Marooney; Lauren W. Mitchell; King &
                                                 Spalding LLP, New York, New York.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Preska, C.J.; Ellis, M.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Uri Dowbenko, proceeding pro se, appeals the district court’s

judgment awarding damages for defamation in favor of plaintiff-appellee Julian H. Robertson,

Jr., against Dowbenko and others, following the entry of a default judgment against Dowbenko

as a sanction under Federal Rule of Civil Procedure 37(b) for his failure to comply with

discovery orders. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       Rule 37(b) provides that when a party fails to comply with a discovery order, a court may

impose sanctions, including “striking pleadings in whole or in part” and “rendering a default

judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A). While we have expressed

a preference for resolving disputes on the merits rather than by default, see, e.g., Marfia v. T.C.

Ziraat Bankasi, New York Branch, 100 F.3d 243, 249 (2d Cir. 1996), we have also consistently

recognized that Rule 37 sanctions are applicable in “extreme circumstances,” where “a party

fails to comply with the court’s discovery orders willfully, in bad faith, or through fault.” John

B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988) (internal

quotation marks omitted); see also Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d

Cir. 1990).



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       We review a district court’s imposition of sanctions under Rule 37 for abuse of

discretion, and the factual findings in support of the district court’s decision for clear error. S.

New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 143 (2d Cir. 2010). In “evaluating a

district court’s exercise of discretion” to impose Rule 37 sanctions, we have relied upon factors

including: “(1) the willfulness of the non-compliant party or the reason for noncompliance; (2)

the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether

the non-compliant party had been warned of the consequences of . . . noncompliance.” Agiwal

v. Mid Island Mortg. Corp., 555 F.3d 298, 302 (2d Cir. 2009) (internal quotation marks omitted).

Rule 37 sanctions, including the most severe, “may be imposed . . . against a plaintiff who is

proceeding pro se, so long as a warning has been given that noncompliance can result” in a

sanction. Valentine v. Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (affirming

dismissal sanction after a pro se plaintiff failed to appear for his deposition); see also Bobal, 916

F.2d at 764 (explaining that, before the district court dismissed a case as a Rule 37 sanction, the

district court should have informed pro se litigant that violation of a court order would result in

such a dismissal).

       Having reviewed the record in light of these principles, we affirm the district

court’s judgment. The record amply demonstrates that: (1) Dowbenko repeatedly failed to

respond to interrogatories and produce documents requested by Robertson, in violation of the

district court’s orders of December 2005, March 2006, and July 2006; (2) the district court

appropriately rejected lesser sanctions as inadequate given Dowbenko’s continued

noncompliance after multiple explicit warnings about the consequences of further

noncompliance; (3) the period of noncompliance delayed progress in the case for more than two


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years; (4) Dowbenko was given ample notice that further noncompliance would result in

sanctions, including the entry of default judgment; and (5) Dowbenko’s noncompliance was

willful and deliberate, as evidenced by his repeated failures to comply even after he had

explicitly acknowledged his discovery obligations at an March 2006 teleconference. We identify

no abuse of discretion in the district court’s entry of default judgment against Dowbenko.

       We review a district court’s findings and calculations in awarding damages for clear

error, see Brown v. C. Volante Corp., 194 F.3d 351, 365 (2d Cir. 1999), and the relevant

questions of law de novo. See Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1029 (2d Cir.

1995). Dowbenko’s contention that no damages could be awarded without proof of an injury to

Robertson’s reputation is incorrect. “New York law has long recognized that ‘[w]hen statements

fall within’ established categories of per se defamation, ‘the law presumes that damages will

result, and they need not be alleged or proven.’” Zherka v. Amicone, 634 F.3d 642, 645 (2d Cir.

2011) (quoting Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992) (internal footnote omitted)).

As relevant here, one category of per se defamation comprises “statements . . . that tend to injure

another in his or her trade, business or profession.” Liberman, 80 N.Y.2d at 435. As the district

court correctly determined, Robertson was presumptively entitled to damages because he alleged

defamation per se. Dowbenko fails to raise any specific factual or legal basis for overturning the

district court’s award of $1,000 as general damages. Furthermore, the district court did not err in

adopting the magistrate judge’s factual findings and legal determinations supporting the award of

$37,129.64 in special damages. Those determinations were supported by substantial evidence of

the costs that Robertson incurred to minimize and prevent injury to his reputation from the

defamatory statements. Finally, we reject Dowbenko’s arguments challenging the admissibility

of William Goodell’s testimony at the damages inquest hearing. A review of hearing transcript

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demonstrates that, contrary to Dowbenko’s contentions, Goodell testified based upon his own

personal knowledge and observations.

        Dowbenko also challenges the district court’s personal and subject matter jurisdiction.

Neither challenge has merit. Dowbenko’s own noncompliance with the discovery orders

obstructed a full merits adjudication of his personal jurisdiction defense. “It is well established

that a party can waive its right to challenge the district court’s personal jurisdiction over it.”

Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87, 92 (2d Cir. 2009). Dowbenko

forfeited his personal jurisdiction defense by his noncompliance with discovery orders, resulting

in a default judgment. Cf. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 134-36

(2d Cir. 2011) (rejecting argument that district court must adjudicate personal jurisdiction

defense before entering default judgment).

        Dowbenko’s challenge to the district court’s subject matter jurisdiction is also

unavailing. He argues that, because the damages ultimately awarded were less than the $75,000

amount-in-controversy requirement for diversity jurisdiction, see 28 U.S.C. § 1332(a), the case

must be dismissed for lack of subject matter jurisdiction. This is not the law. “Satisfaction of

the § 1332(a) diversity requirements . . . is determined as of the date that suit is filed . . . . Events

occurring subsequent to the institution of suit which reduce the amount recoverable below the

statutory limit do not oust jurisdiction.” Wolde-Meskel v. Vocational Instruction Project Cmty.

Servs., Inc., 166 F.3d 59, 62 (2d Cir.1999) (internal citations omitted). In his original complaint,

Robertson plausibly claimed damages in excess of $75,000, and eventually claimed damages of

almost $1 million during the damages inquest before the magistrate judge. That the district court

ultimately awarded damages below the amount-in-controversy requirement does not deprive the

court of subject matter jurisdiction.

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       We have considered Dowbenko’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.



                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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