Romspen Investment LP v. Dibert et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 23-CV-80992-AMC
ROMSPEN INVESTMENT LP,
Plaintiff,
v.
STEPHEN J. DIBERT, et. al.,
Defendants.
__________________________________________/
REPORT AND RECOMMENDATION ON MOTION FOR SANCTIONS AND
CERTIFICATION TO DISTRICT COURT
Rompsen moves for sanctions, including civil contempt, because it says Mr.
Dibert has violated the Court’s Confidentiality Order. ECF Nos. 355, 360. Mr. Dibert
moves to strike Romspen’s Notice of Non-Opposition. ECF No. 364. Judge Cannon
referred these motions to me for a Report and Recommendation. ECF No. 367.
For the following reasons, Mr. Dibert’s Motion to Strike should be denied.
Romspen’s request for sanctions under Federal Rule of Civil Procedure 37 should be
denied. This matter is certified to Judge Cannon for possible civil contempt sanctions.
I. 	FACTS
On March 4, 2025, this Court entered a Confidentiality Order. ECF No. 212.
Paragraphs 6 and 7 of that Order limit disclosure of documents that a party has
designated as “confidential” under the Order. With exceptions that do not apply here,
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documents designated “confidential” may not be disclosed “for any purpose other than
in this litigation, including in any appeal thereof.” ¶6. Unless the opposing party
consents, a party may file a confidential document along with a motion or pleading
only after complying “with the Court’s rules and procedures for filing materials under
seal or otherwise submitting confidential information or documents to the Court.”
¶10. Paragraph 23 warns, “NON-COMPLIANCE WITH THIS ORDER MAY BE
PUNISHABLE AS A CONTEMPT OF COURT.” ¶23.
On May 23, 2025, Mr. Dibert filed his Motion for Summary Judgment and a
separate Statement of Material Facts. ECF Nos. 281, 282. The pleadings were served
via CM/ECF on three lawyers representing Rompsen. Id. Pages 14-16 of the Motion
discussed a loan approval memorandum that Plaintiff had designated as confidential.
Exhibit 10 to the Statement of Material Facts was an excerpt from a deposition;
Exhibit F to that transcript was a loan approval document. ECF No. 282-10.
Six days later, on May 29, at 10:38 a.m., Romspen moved to seal the Motion
and Exhibit 10; it also asked for sanctions of (1) default judgment, (2) a civil contempt
monetary penalty of $15,000 to be paid within 15 days, and (3) attorney’s fees. ECF
No. 286. Approximately 90 minutes after being notified of the situation, at 11:55 a.m.,
the Court ordered the motion and Exhibit 10 to be sealed. ECF No. 287. On June 23,
the Court denied the requested sanctions. ECF No. 310.
On August 13, Mr. Dibert filed a motion for leave to file an untimely second
summary judgment motion. ECF No. 343. Appended to that pleading was a proposed
summary judgment motion that discussed and quoted materials that Romspen had
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marked confidential. Id. at 3-20 (“Second MSJ”). The same day, Rompsen notified the
Court of the situation and sought leave to file a motion to seal and for sanctions.
ECF No. 346. The next day, the Court granted Romspen leave to file that motion.
ECF No. 349. The day after that, after Mr. Dibert declined to remove the confidential
material from the public record, Romspen filed an expedited motion to seal and for
sanctions. ECF No. 355. The Court ordered that Mr. Dibert’s motion be sealed, on
August 22. ECF No. 361.
While Romspen’s expedited motion was pending, on August 17, 2025, the
website https://romspenreport.com/romspen-mortgage-fraud-scheme/ (“the Website”)
published excerpts from the confidential loan approval file. ECF No. 360-1. The
Website said that it had obtained these materials in May 2025 during the six days
when Mr. Dibert’s summary judgment motion was unsealed. ECF No. 360-1 at 5.
II. 	PENDING MOTIONS
On August 20, Romspen asked for leave to supplement its pending sanctions
motion to include the Website disclosures. ECF No. 357. The proposed supplemental
pleading was appended to the motion for leave. ECF No. 357-2. On August 21, the
Court granted Romspen’s motion and ordered Romspen to file the supplemental
pleading on or before August 22. ECF No. 359. On August 21, Romspen filed its
supplement, which renewed its request for sanctions, including striking Mr. Dibert’s
pleadings, entering a default, holding Mr. Dibert in civil contempt, and awarding
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Romspen its attorney’s fees. ECF No. 360.1 Romspen also asked that Mr. Dibert be
ordered to remove the confidential material from the website and to identify every
person to whom that material was disclosed. Id. at 4-5.
On September 5, Romspen filed a Notice that Mr. Dibert had not filed an
opposition to its supplemented sanctions motion. ECF No. 363. On September 26, Mr.
Dibert moved to strike Romspen’s Notice. ECF No. 364. He argued that Romspen’s
motion was untimely. Id. at 2. He did not respond on the merits. I ordered him to file
a response or to show cause why the Motion for Sanctions should not be granted. ECF
No. 370.
Mr. 	Dibert 	responded 	by 	filing 	a 	pleading 	captioned 	“Motion 	to 	Strike
Plaintiff’s Motion for Sanctions and Supplement to the Motion.” ECF No. 373.2 He
first argued that the Motion for Sanctions should be denied because Romspen did not
obtain leave to file it, as required by this Court’s June 4, 2025, Order. ECF No. 373
(citing ECF No. 293). He next argued that there was insufficient proof that he
controlled the Website. ECF No. 373.
Romspen filed a reply citing prior statements by Mr. Dibert indicating that he
controls the Website. ECF No. 374.
1 Romspen also asked that Mr. Dibert’s Motion for Leave be sealed. That relief has
already been granted. ECF No. 361.
2 Although captioned as a motion, this pleading is actually a response to Romspen’s
sanctions motion.
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III. 	DISCUSSION
Motion to Strike
Mr. Dibert’s Motion to Strike [ECF No. 364] should be denied. First, Mr. Dibert
is incorrect that Romspen’s filed its sanctions motion without getting leave of Court.
On August 21, the Court granted leave to supplement the then-pending motion for
sanctions. ECF No. 359. The supplemental pleading necessarily incorporated the
initial pleading. Even if the initial motion was filed without proper leave of Court,
that flaw was cured by the Court’s August 21 Order. Second, his request to strike the
notice of non-opposition is moot because he has been given the chance to respond to
the underlying motion.
Discovery Sanctions
Romspen’s initial motion asked for sanctions based on Mr. Dibert’s including
confidential materials in his publicly-filed Second MSJ. ECF No. 355. It asked that
Mr. Dibert be sanctioned under Fed. R. Civ. P. 37(b)(2)(A). Id. at 7-9. The requested
sanctions were:
(1) an order sealing Docket Entry 343;
(2) a monetary contempt sanction of $15,000 payable within seven days; and,
(3) an award of Romspen’s attorney’s fees for filing the sanctions motion.
Id. at 10.3
Romspen’s 	supplemented 	motion 	says 	that 	Mr. 	Dibert 	violated 	the
3 	The 	motion 	also 	asked 	for 	“such 	further 	relief 	as 	the 	Court 	deems
appropriate.” ECF No. 355 at 10.
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Confidentiality 	Order 	by 	publishing 	confidential 	information 	on 	the 	Website.
Romspen now asks for the following additional remedies:
(1) striking of Mr. Dibert’s Answer and Affirmative Defenses;
(2) a default; and,
(3) an order requiring Mr. Dibert to remove the confidential information from
the websites, destroy it, and certify his compliance, and identify every
person to whom it was disclosed.
ECF No. 360 at 4-5.
Docket Entries 281, 282-10, and 343 are now under seal, so that requested
remedy is moot. ECF Nos. 287, 361.4
Romspen is not entitled to sanctions under Fed. R. Civ. P. 37(b)(2)(A). That
rule allows the Court to enter “just orders” when a party fails to comply with “an
order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a).”
The Confidentiality Order is not covered by Rule 37(b)(2)(A). It is not an “order to
permit or provide discovery.” Rather, it is a protective order that limits the disclosure
of discovery, under Rule 26(c)(1)(A).
4 As discussed above, these documents were sealed because of the asserted exigency
of the situation. I note, however, that the Court has never formally determined that
the loan documents meet the requirements for being sealed. See, e.g., Argona v. Selene
Fin., LP, No. 23-14297-CIV, 2024 WL 4202107, at *1 (S.D. Fla. June 12, 2024)
(discussing public right of access to judicial materials and standard for sealing). A
document 	is 	not 	subject 	to 	sealing 	merely 	because 	a 	party 	designates 	it 	as
confidential.
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Civil Contempt
Courts have “inherent power to enforce compliance with their lawful orders
through civil contempt.” Citronelle–Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297,
1301 (11th Cir. 1991) (citing Shillitani v. United States, 384 U.S. 364, 370 (1966)). As
relevant here, a United States Magistrate Judge cannot hold a person in contempt.
Instead, if the Magistrate Judge finds that a contemptuous act has been committed,
“the magistrate judge shall forthwith certify the facts to a district judge” and may
issue an order to show cause why the district judge should not hold the person in
contempt “by reason of the facts so certified.” 28 U.S.C. §636(e)(6).
A finding of civil contempt must be supported by clear and convincing evidence
that: (1) a valid and lawful Court order was violated; (2) the order was clear and
unambiguous; and, (3) the alleged violator had the ability to comply with the order.
F.T.C. v. Leshin, 618 F.3d 1221, 1232 (11th Cir. 2010)). “Once a movant establishes
by clear and convincing evidence that a court order has been violated, the burden of
production shifts to the purported contemnor to produce evidence explaining his
noncompliance.” 	W. 	Sur. 	Co. 	v. 	Merkury 	Corp., 	No. 	12-22938-CIV, 	2014 	WL
12498014, at *6 (S.D. Fla. Dec. 10, 2014) (citing Citronelle–Mobile, 943 F.2d at 1301),
report and recommendation adopted, No. 12-22938-CIV, 2015 WL 11921404 (S.D. Fla.
Jan. 21, 2015). “Parties to a court’s order demonstrate an inability to comply only by
showing that they have made in good faith all reasonable efforts to comply.” Merkury
Corp., 2014 WL 12498014, at *6 (quoting Citronelle–Mobile, 943 F.2d at 1301).
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“District courts enjoy ‘wide discretion to fashion an equitable remedy for [civil]
contempt that is appropriate to the circumstances.’” United States v. City of Miami,
195 F.3d 1292, 1298 (11th Cir.1999) (citing E.E.O.C. v. Guardian Pools, Inc., 828 F.2d
1507, 1515 (11th Cir.1987)). Nevertheless, “[c]ivil contempt sanctions may not be
used to impose what amounts to a punitive or criminal contempt sanction.” See id.
“[S]anctions in civil contempt proceedings may be employed for either or both of two
purposes: to coerce the defendant into compliance with the court's order, and to
compensate the complainant for losses sustained.” Local 28 of Sheet Metal Workers'
Int'l Ass'n v. EEOC, 478 U.S. 421, 443 (1986) (internal quotation marks omitted). The
contemnor must have the ability to purge the coercive sanction, otherwise it becomes
a criminal punishment. And, the coercive sanction cannot be greater than necessary
to induce compliance. Citronelle–Mobile, 943 F.2d at 1304. A remedial civil contempt
sanction can include the attorney’s fees incurred in seeking compliance with the
Court’s order. Id.
Romspen alleges two acts violated the Confidentiality Order: (1) filing the
Second MSJ and (2) publishing the loan documents on the Website. Mr. Dibert has
not argued that the Confidentiality Order was invalid, unlawful, or ambiguous. He
also does not argue that he lacks the ability to comply with the Confidentiality Order.
There is unrebutted evidence that Mr. Dibert filed the loan documents in the
public record as part of his Second MSJ. Mr. Dibert has not offered an explanation
for this noncompliance with the Confidentiality Order. Therefore, pursuant to 28
U.S.C. §636(e)(6), the facts in Section I above are certified to Judge Cannon for
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further proceedings.
There is also prima facie evidence that Mr. Dibert violated the Confidentiality
Order by publishing the loan documents on the Website. See ECF No. 212 ¶6.
Romspen cites to record evidence that Mr. Dibert has some control over the Website.
ECF No. 374 at 2; but see ECF No. 373 at 2 (arguing Rompsen has not proven that
Mr. Dibert controls the Website). Pursuant to 28 U.S.C. §636(e)(6), I certify the facts
cited by Romspen to Judge Cannon for further contempt proceedings.
REPORT AND RECOMMENDATION
Accordingly, this Court RECOMMENDS that:
1. 	Mr. Dibert’s Motion to Strike [ECF No. 364] be DENIED
2. 	The request for sanctions under Fed. R. Civ. P. 37(a)(2)(B) be DENIED
3. 	Mr. Dibert be ordered to appear before the Hon. Aileen M. Cannon, at a
time and place to be determined, and show cause why he should not be held
in civil contempt based on the facts listed in Section I of this Report and
Recommendation and the facts cited by Romspen on page 2 of ECF No. 374.
NOTICE OF RIGHT TO OBJECT
A party shall serve and file written objections, if any, to this Report and
Recommendation with the Honorable Aileen M. Cannon, United States District Court
Judge for the Southern District of Florida, within FOURTEEN (14) DAYS of being
served with a copy of this Report and Recommendation. Failure to timely file
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objections shall constitute a waiver of a party's "right to challenge on appeal the
district court’s order based on unobjected-to factual and legal conclusions." 11th Cir.
R. 3-1 (2016).
DONE and SUBMITTED in Chambers at West Palm Beach, Palm Beach
County, in the Southern District of Florida, this 13th day of November 2025.
__________________________________
BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE
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