IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA
DYLAN GOLDMAN
Plaintiff,
v.
ALLISON EBERLY
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action File

No. 16CV1860-7

MOTION FOR SANCTIONS UPON THE DEFENDANTS

RETAINED COUNSEL
COMES NOW, Dylan Goldman, Plaintiff in the above-styled civil action,
and files this Motion for Sanctions upon the Defendants retained counsel, David J.
Merbaum and Andrew J. Becker of Merbaum & Becker, P.C.. For the reasons set
forth in Plaintiffs Brief in Support of Motion for Sanctions filed simultaneously
herewith, the Plaintiff respectfully requests the Court grant this Motion.

This 21 day of July, 2016.

_____________________________
Dylan Goldman, Plaintiff, Pro Se
3106 Summit Lake Drive
Stone Mountain, GA 30083
(404) 989-3868

IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA
DYLAN GOLDMAN
Plaintiff,
v.
ALLISON EBERLY
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action File

No. 16CV1860-7

PLAINTIFFS BRIEF IN SUPPORT OF HIS MOTION FOR SANCTIONS

UPON THE DEFENDANTS RETAINED COUNSEL
COMES NOW, Dylan Goldman, Plaintiff in the above-styled civil action,
and moves this Court to sanction Defendant Allison Eberlys retained counsel,
David J. Merbaum, Andrew J. Becker and Katherine Dod, for the following
violations:
(a) for boilerplate objections as prohibited by Federal Rules 34 (amended)1
and 26(b)(1) of the Federal Rules of Civil Procedure2;

https://www.orrick.com/Insights/2015/12/Summary-of-December-2015-Amendments-to-the-Federal-Rules-of-CivilProcedure
1

Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate
objection that it is not proportional. The parties and the court have a collective responsibility to consider the
proportionality of all discovery and consider it in resolving discovery disputes; Federal Rule of Civil Procedure 26(b)
(1) amended: April 2015.
2

(b) for discourteous and unprofessional conduct in their dealings with the
Pro Se Plaintiff, as prohibited by EC 7-38 of the Georgia Bar Associations, Rules
of Professional Conduct;
(c) for obstructing justice by denying access to evidentiary materials, as
prohibited by Rule 3.4 (h) of the Georgia Rules of Professional Conduct3;
(d) for incompetence in their representation of the Defendant, as prohibited
by Rule 1.14 of the Georgia Rules of Professional Conduct;
(e) for falsely advancing a prior criminal claim against the Plaintiff, as
prohibited by Rule 3.1 (b) of the Georgia Rules of Professional Conduct5; and
(f) for making threats of criminal prosecution, as prohibited by DR 7-105(a)
and EC 7-21 of the American Bar Associations Model Rules of Professional
Conduct6 .
On their firms website, Merbaum & Becker, P.C. list the following areas of
law practiced: Construction law, Commercial collections, Landlord/Tenant, Small
business law and Consumer law. However, according to Rule 1.1 of the Georgia

Rule 3.4 (a) of the Georgia Rules of Professional Conduct states, [A lawyer shall not]unlawfully obstruct another
party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential
evidentiary value. A lawyer shall not counsel or assist another person to do any such act.
3

4 4

https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=79

https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=69

http://www.americanbar.org/content/dam/aba/migrated/cpr/mrpc/mcpr.authcheckdam.pdf

Rules of Professional Conduct, if a lawyer is not competent to represent a client,

then they should not take the case. Rule 1.1 states:
A lawyer shall provide competent representation to a client.
Competent representation as used in this Rule means that a lawyer
shall not handle a matter which the lawyer knows or should know
to be beyond the lawyer's level of competence without associating
another lawyer who the original lawyer reasonably believes to be
competent to handle the matter in question. Competence requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
1. CITATIONS AND SUPPORT OF SPECIFIC VIOLATIONS FOR WHICH
THE PLAINTIFF SEEKS SANCTIONS AGAINST DEFENDANTS
RETAINED COUNSEL
A.
Boilerplate & Generalized Objections- Rules 26(b)(1) and (amended)
Rule 34(b)(2) of the Federal Rules of Civil Procedure) and Supporting Caselaw
Within the Defendants Responses to Plaintiffs First Interrogatories,
Defendants Responses to Plaintiffs Second Interrogatories and Defendants
Responses to Plaintiffs First Request for Production of Documents, Defendants
counsel repeatedly and improperly stonewalled every single request made of the
Defendant by the Plaintiff by using the following generalized, boilerplate
objections:
a) Defendant objects to this interrogatory as interposed solely for the basis
of harassing the Defendant through civil litigation after he admitted to stalking her
in a prior criminal action.

b) Defendant objects to this interrogatory as not reasonably calculated to

lead to the discovery of admissible evidence.7
Furthermore, Merbaum & Becker subsequently violated Rule 3.1 (b) of the
Georgia Rules of Professional Conduct by knowingly advancing a false criminal
claim against the Plaintiff within boilerplate objection a, which specifically
claims the Plaintiff, admitted to stalking [the Defendant] in a prior criminal
action.
There are currently pending criminal charges for which the Plaintiff has not
yet gone to trial or even entered a plea, (State v. Dylan S. Goldman, #S2199598)
that were the orchestrated by the Defendants false accusations against and
egregious lies about the Plaintiff. Merbaum & Beckers verbiage insinuates not
only that criminal charges were previously brought against the Plaintiff, but that
the Plaintiff admitted to the charge, which is completely false.
Federal Rule 26(b)(1) states, Parties may obtain discovery regarding any
non-privileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties relative access to
relevant information, the parties resources, the importance of the discovery in

The documentation requested by the Plaintiff of the Defendant is either admissible evidence or is reasonably
calculated to lead to the discovery of admissible evidence.
7

resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable. 8
Similarly, Amended Federal Rule 34(b)(2)9 prohibits boilerplate objections,
asserting that objections must state with specificity the grounds for objecting" and
"whether any responsive materials are being withheld." Additionally, when
objecting, the objecting party must also state whether the objection serves as a
basis for withholding documents.10
The following caselaw also supports the Plaintiffs motion for sanctions
against the Defendants counsel:
Adelman v. Boy Scouts of Am., 276 F.R.D. 681,688 (S.D. Fla. 2011)11:
[J]udges in this district typically condemn boilerplate objections as legally
inadequate or meaningless. (citations omitted) (internal quotation marks omitted).
Nissan N. Am., Inc. v. Johnson Elec. N. Am., Inc., No. 09-CV-11783,
2011WL 66935212, at *2 (E.D. Mich. Feb. 17, 2011), refusing to consider
[b]oilerplate or generalized objections.
8

https://www.law.cornell.edu/rules/frcp/rule_26#rule_26_b_1

https://www.law.cornell.edu/rules/frcp/rule_34

10

http://www.americanbar.org/publications/blt/2016/02/07_marinelli.html

11

http://law.justia.com/cases/federal/district-courts/florida/flsdce/1:2010cv22236/360854/162/

https://postprocess.wordpress.com/2011/03/21/case-summary-nissan-n-am-court-examines-collection-protocoland-request-for-protective-order/
12

Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 37980 (C.D. Cal. 2009)13:
[Even if not waived, such unexplained and unsupported boilerplate objections are
improper.(citations omitted)].
Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 35859(D. Md.
2008)14: [B]oilerplate objections . . . persist despite a litany of decisions from
courts . . . that such objections are improper unless based on particularized
facts.(citations omitted).
A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D.Cal. 2006)15:
As an initial matter, general or boilerplate objections such as overly burdensome
and harassing are improperespecially when a party fails to submit any
evidentiary declarations supporting such objections.

B. Rule 3.4 (a) - Fairness to Opposing Party and Counsel (Georgia Rules of
Professional Conduct)
Rule 3.4 (a) states, [A lawyer shall not]unlawfully obstruct another
party's access to evidence or unlawfully alter, destroy or conceal a document or

13

https://lawreviewdrake.files.wordpress.com/2015/06/irvol61-3_jarvey.pdf

14

http://www.mdd.uscourts.gov/Opinions/Opinions/Mancia%20v.%20Mayflower_Opinion_10.15.08.pdf

15

https://dockets.justia.com/docket/california/cacdce/2:2005cv02776/172940

other material having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act16
Making boilerplate objections is not only impermissible, it is a deliberately
orchestrated delay tactic. Merbaum & Becker stonewalled the Plaintiffs
interrogatories and request for production, subsequently obstructing his access to
documents and information of evidentiary value to the Plaintiffs argument.
According to the Georgia Bar Association, the maximum penalty for a
violation of this Rule is disbarment.

C. Ethical Consideration (EC) 7-38, (Georgia Rules of Professional Conduct)

EC 7-38 states, A lawyer should be courteous to opposing counsel and
should accede to reasonable requests regarding court proceedings, settings,
continuances, waiver of procedural formalities, and similar matters which do not
prejudice the rights of his client. He should follow local customs of courtesy or
practice, unless he gives timely notice to opposing counsel of his intention not to
do so.17
However, due to their continual discourteous and unprofessional conduct
within their communications with the Plaintiff, and within their Motions and
16

https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=77

17

(See pg. 30) https://www.gabar.org/barrules/ethicsandprofessionalism/upload/Ethics-Discipline-Before-2001.pdf

Briefs, the Plaintiff sent a certified letter to Merbaum & Becker on June 5th, 2016,
asking them to please refrain from being rude and discourteous. (A copy of the
Plaintiffs letter to Merbaum & Becker, P.C. is attached as Exhibit A.)
According to the Georgia Bar Association, the maximum penalty for a
violation of this Rule is disbarment.

D. Rule 1.1 - Competence (Georgia Rules of Professional Conduct)

Rule 1.118 states, A lawyer shall provide competent representation to a
client. Competent representation as used in this Rule means that a lawyer shall not
handle a matter which the lawyer knows or should know to be beyond the lawyer's
level of competence without associating another lawyer who the original lawyer
reasonably believes to be competent to handle the matter in question. Competence
requires the legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.
Slander is considered Tort Law, which is further classified as Defamation
Law, and can sometimes be classified as Personal Injury. All of these are areas of
Civil Practice, and should be handled by attorneys with expertise in those areas of
law. Neither Mr. Merbaums nor Mr. Beckers professional or educational
backgrounds qualifies them to represent the Defendant in this case.
18

https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=79

According to Mr. Merbaums attorney profile19, The Firm handles cases

involving construction law, commercial collections, landlord tenant, incorporation,
real estate matters including real estate litigation, business advice and dispute
resolution and consumer advice and representation. (A printout of Merbaum &
Beckers areas of practice as listed on their website is hereto attached as Exhibit
B).
Similarly, Mr. Beckers attorney profile20 states the following about his areas
of legal expertise: His practice areas include construction law, business litigation,
landlord/tenant, creditor/debtor and civil appeals.
According to the Georgia Bar Association, the maximum penalty for a
violation of this Rule is disbarment.

E. Rule 3.1 - Meritorious Claims and Contentions (Georgia Rules of

Professional Conduct)
Rule 3.1(b) of the Georgia Rules of Professional Conduct states, In the
representation of a client, a lawyer shall notknowingly advance a claim or
defense that is unwarranted under existing law, except that the lawyer may advance

19

http://www.merbaumlawgroup.com/david-merbaum.html

20

http://www.merbaumlawgroup.com/andrew-becker.html

such claim or defense if it can be supported by good faith argument for an

extension, modification or reversal of existing law.
Merbaum & Becker repeatedly assert this contentiously false claim against
the Plaintiff in both of their responses to the Plaintiffs first and second
interrogatories.
F. Rule DR 7-105 and Ethical Consideration (EC) 7-21 of the ABAs Model
Rules of Professional Conduct
DR 7-105(a) of the American Bar Associations Model Rules of Professional
Conduct states, A lawyer shall not present, participate in presenting, or threaten to
present criminal charges solely to obtain an advantage in a civil matter.21
Similarly, EC 7-21 states:
The civil adjudicative process is primarily designed for the settlement of
disputes between parties, while the criminal process is designed for the
protection of society as a whole. Threatening to use, or using, the
criminal process to coerce adjustment of private civil claims or
controversies is a subversion of that process; further, the person against
whom the criminal process is so misused may be deterred from asserting
his legal rights and thus the usefulness of the civil process in settling
private disputes is impaired. As in all cases of abuse of judicial process,
the improper use of criminal process tends to diminish public confidence
in our legal system.22

21

http://www.americanbar.org/content/dam/aba/publications/YourABA/201108makingthreats.authcheckdam.pdf

22

http://www.americanbar.org/content/dam/aba/publications/YourABA/201108makingthreats.authcheckdam.pdf

Within the Defendants response to interrogatory no. 2 counsel writes,

Subject to and without waiver of the foregoing objectives, Defendant states she
has not yet raised any claim but intends to file a counterclaim shortly for certain
intentional torts, including assault and battery.
Considering any allegations of assault and battery, as intentional torts or
criminal acts, would be yet another malicious lie construed to harm the Plaintiff,
and considering the fact that the Defendant had the Plaintiff unnecessarily arrested
as a direct result of the lies she told within her warrant application against the
Plaintiff, it is reasonable for the Plaintiff to be doubtful that the Defendants socalled counterclaim would truly stop at assault and battery as intentional torts,
regardless of what her counsel says.
Furthermore, any case brought by the Defendant against the Plaintiff for any
charge would be frivolous, and would result in the Plaintiffs filing of a
counterclaim for frivolous litigation, false arrest and malicious prosecution, with a
recommendation to this Court that, for her negligent abuse of the legal system, they
pursue charges for perjury against her.
CONCLUSION
It is apparent that David Merbaum and Andrew J. Becker of Merbaum &
Becker, P.C. is in direct violation of several of the Georgia Rules of Professional

Conduct as set forth by the Georgia Bar Association, as well as several Federal
rules of civil procedure, and should be sanctioned for their reckless, unprofessional
conduct during these proceedings, and for their blatant disregard for the rules of
civil procedure and the rules and ethical considerations of the Georgia Bar
Association.
WHEREFORE the Plaintiff prays:
a) that this Court enter an Order sanctions against the Defendant and her
retained counsel, Merbaum & Becker, P.C.
b) that this Court recommend disciplinary action be imposed on Merbaum &
Becker, P.C. by the Georgia Bar Association and the American Bar
Association for violations of their professional codes of conduct,
respectively.
c) that this Court order the Defendant to pay to the Plaintiff the amount of
the reasonable expenses incurred in the filing of this motion, including
printing and copying fees, the gasoline used commuting to and from the
Dekalb County Courthouse from his residence in Stone Mountain, and any
other monetary compensation and/or relief this Court sees just and proper.
d) for such other relief as may be just and proper as decided by this Court.

This 21 day of July, 2016.

_____________________________
Dylan Goldman, Plaintiff, Pro Se
3106 Summit Lake Drive
Stone Mountain, GA 30083
(404) 989-3868

Dylan S. Goldman
404-989-3868

dylan@dsgoldmanmedia.com

3106 Summit Lake Drive, Stone Mountain, GA 30083

June 5, 2016
RE: Goldman v. Eberly
CAFN 16CV1860
Merbaum & Becker, P.C.
5755 North Point Pkwy., Suite 284
Alpharetta, GA 30022
Dear Misters Merbaum & Becker,
I received your reply to my oppositional brief.
Frankly, my battle is not with your firm; It is with your client, whose commitment
to her dishonesty is so preposterously strong that it resulted in this suit. That being
said, moving forward, I ask that you please refrain from making any further
attempts to bully me with delay tactics and condescending language, and try to
resist the temptation to use my pro se status against me - it is not only
unprofessional and immature, it is frowned upon by the State Bar.
As far as your aforementioned reply goes, I honestly dont have the time to go back
and forth with you - I have made my case. I have provided the court with ample
supporting evidence. I have provided countless citations from Georgia Annotated
Code Law. The rest is up to Judge Coursey to decide.

Respectfully Yours,

Dylan S. Goldman

IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA
DYLAN GOLDMAN
Plaintiff,
v.
ALLISON EBERLY
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action File

No. 16CV1860-7

RULE 5.1B CERTIFICATE OF TYPE, FORMAT AND FONT SIZE

Pursuant to Local Rule 5.1B of the Northern District of Georgia, the
undersigned certifies that this computer-processed document was prepared using
14-point sized font of Times New Roman, with double-spaces between lines, and
with margins measuring one-and-one-half inches at the top and one inch at the left.

This 21 day of July, 2016.

_____________________________
Dylan Goldman, Plaintiff, Pro Se
3106 Summit Lake Drive
Stone Mountain, GA 30083
(404) 989-3868

IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA
DYLAN GOLDMAN

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ALLISON EBERLY
Defendant.

Civil Action File

No. 16CV1860-7

CERTIFICATE OF SERVICE
This certifies that on June 10, 2016, I sent authenticated copies of the following
documents:
1. Plaintiffs Motion for Sanctions Upon the Defendants Retained Counsel
2. Plaintiffs First Motion in Limine

to counsel for the Defendant via Certified U.S.Mail, return receipt requested, with
adequate postage affixed thereon, and properly addressed to:
Merbaum & Becker, P.C.
5755 North Point Pkwy., Suite 284
Alpharetta, GA 30022
(678) 393-8232

This 21 day of July, 2016.

_____________________________
Dylan Goldman, Plaintiff, Pro Se
3106 Summit Lake Drive
Stone Mountain, GA 30083
(404) 989-3868

Exhibit
A

Exhibit
B