In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2681

PEARLE VISION, INC., a Delaware corporation, AND

PEARLE, INC., a Delaware corporation,

Plaintiffs-Appellees,

v.

VICTOR ROMM, individually and d/b/a ROMM & CO., INC.,

ROMM VISION ENTERPRISES, INC., et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 4349—Joan Humphrey Lefkow, Judge.

____________

ARGUED JANUARY 23, 2008—DECIDED SEPTEMBER 3, 2008

____________

Before MANION, ROVNER, and EVANS, Circuit Judges.

MANION, Circuit Judge. Pearle Vision, Inc. (“Pearle

Vision”) filed suit against Victor Romm and three of his

companies alleging violations of their franchise agreements. The district court entered a preliminary injunction

directing Romm to make certain items, including patient
2 No. 07-2681

In addition to suing Romm individually, Pearle Vision filed 1

suit against Romm doing business as Romm & Co., Inc., Romm

Vision Enterprises, Inc., and Eyes 2000, Ltd. For ease of discussion, we refer to the defendants collectively as “Romm.”

files, available to Pearle Vision. The district court eventually found that Romm was not complying with the injunction, and entered a $1,000 per day contempt sanction

to remain in effect until the items at issue were provided

to Pearle Vision. After finding that Romm never complied with its order, the district court entered judgment

on the contempt in the amount of $321,000. Romm

appeals arguing that he was not given an opportunity

to purge the contempt, that the amount of the judgment

was excessive, and that the district court failed to exercise

the leniency normally afforded pro se litigants. We affirm.

I.

Romm is an optometrist who, until 2004, operated four

Pearle Vision stores pursuant to franchise agreements

he had entered into with Pearle Vision. On June 29, 2004,

Pearle Vision filed suit alleging that Romm had materially

defaulted under those agreements. Romm’s alleged

1

infractions included incorrectly charging customers or

charging them for services or products not received, poor

record keeping, and abandoning at least one store for

three or more days. Pearle Vision sought damages for

Romm’s violation of the franchise agreements, as well as

a permanent injunction prohibiting Romm from further

operating the stores and granting possession of them to

Pearle Vision.
No. 07-2681 3

Romm was represented by counsel during all proceedings 2

except as noted below.

On August 13, 2004, Pearle Vision filed a motion for

a preliminary injunction asking the court to enjoin

Romm from further possessing or operating the stores,

using either the “Pearle” or “Pearle Vision” marks, or

competing with Pearle Vision within three miles of the

stores in question. The parties appeared for a hearing on

September 27, 2004. They informed the court that they 2

had come to an agreement where Romm would cease

operation and give up possession of the stores, and cease

using Pearle Vision’s marks. Two days later, however,

Pearle Vision filed an emergency motion for a preliminary injunction in which it alleged that Romm was

observed after 9:00 p.m. on September 28, 2004, removing

boxes from one of the stores and loading them onto a

rental truck. Pearle Vision asserted that this violated

portions of the franchise agreement requiring Romm to

cooperate in an orderly change of management when

the agreements were terminated, as well as giving Pearle

Vision the right to purchase equipment present in

the stores. Pearle Vision also argued that Romm was

obligated under their agreement to give it copies of all

his patient records. Romm responded that he had moved

the items in question to a storage unit, and that he was

entitled to do so because Pearle Vision failed to exercise

its purchase right upon initiating termination procedures

in June 2004. On September 30, 2004, the court entered

an emergency preliminary injunction directing Romm to

make all of the store’s equipment available to Pearle
4 No. 07-2681

Vision, and further stating “that Pearle Vision shall have

the right to inspect and remove all patient charts and

records, including all records relating to optometric or

opthomologic services from the operations on the premises, and inspect any hard drive which may contain

any such information.”

On October 5, 2004, Pearle Vision filed the first of three

petitions for a rule to show cause alleging that Romm had

failed to comply with the September 30 injunction. Pearle

Vision alleged, among other things, that Romm had

failed to make available to Pearle Vision’s representative

all of his patient records. These allegations were later

verified by Franchise Manager Michael Maziarek who

testified at a hearing that the only patient records he

found at Romm’s storage unit were three Tupperware

trays containing records no more current than 1999.

When Maziarek asked Romm about the remaining

records, Romm stated that anything not in the unit was at

the stores. Maziarek visited the stores the following day,

but again did not find any records more current than 1999.

He did find file drawers labeled “2003” and “2004,” but

they were empty. At the hearing on Pearle Vision’s petition, the court told Romm that it appeared he had violated the court’s order and that he was going to be sanctioned, but that the sanction would be reduced if he

complied by making the delivery to Pearle Vision in a

timely fashion. The district court issued an order on

October 6, 2004, directing Romm to show cause why he

should not be held in contempt of court, and further

directing him to deliver to Pearle Vision, by 2:00 p.m. that

day at a Pearle Vision store in South Elgin, the equip-
No. 07-2681 5

ment and records as set forth in its September 30 injunction.

Despite this clear direction, Romm failed to show up on

October 6, prompting Pearle Vision to file its second

petition the following day. The court issued another

order, this time directing Romm to make delivery of the

relevant items to Pearle Vision by 1:00 p.m. of that day, and

again directing Romm to show cause why he should not

be held in contempt of court. Romm was not present at

the hearing on the second petition, but the district court

judge informed his counsel, who was present, that there

was “undoubtedly” going to be a sanction imposed on

Romm for his conduct and that she was “shocked and

appalled” by Romm’s behavior.

On October 12, 2004, Pearle Vision filed its third petition

for a rule to show cause. Pearle Vision alleged that Romm

arrived as directed on October 7, but still failed to comply

fully with the court’s injunction. First, Pearle Vision

claimed that Romm had failed to return the total amount

of equipment that would have been present in fully

equipped stores, and provided an itemized list of what it

believed to be missing. More importantly, Pearle Vision

alleged that Romm had failed to produce all of the

patient records. It admitted that Romm delivered boxes

of patient records which were later determined to cover

the years following 1999. Romm also delivered three

personal computers, but they contained no patient data.

This was not unusual because Pearle Vision stated that

the normal set-up in its stores was to have personal

computer input terminals which relayed patient data to
6 No. 07-2681

a central server that stored the information. However,

Romm did not produce a server. Thus, there was no way

to verify that all the physical records had been turned

over. Pearle Vision claimed to be further aggrieved because computer utilization of the patient files facilitates

easier searches of their contents and status.

A hearing on the third petition was held on October 14,

2004. While the hearing was not completed that day, the

court believed it had sufficient information before it to

establish Romm’s non-compliance with its injunction

order. Therefore, on that same day, the court entered an

order sanctioning Romm at the rate of $1,000 per day until

such time as he complied with the court’s September 30

injunction order by producing the equipment and patient

records in question. The court further stated that the

sanction was subject to its ultimate findings after completing the hearing.

The court resumed the hearing on October 22, 2004, and

heard testimony from Romm, Maziarek, and a computer

analyst named Gary Wadhani, who had analyzed the

computers received from Romm to determine their contents. Wadhani confirmed the allegations Pearle Vision

made earlier that there was no patient data contained

on the machines. Wadhani also testified that upon

starting the computers, they attempted to connect to a

server, and that they were therefore likely only work

stations meant to connect to the machine that actually

contained data. Romm testified that he did not want to

be in contempt of court, and that he had returned everything he had to Pearle Vision. Moments later, however,
No. 07-2681 7

At the hearing, the parties still disputed whether Romm had 3

turned over all the equipment required by the injunction.

However, because Romm admitted that patient files were

maintained on computers, and these computer files were

nowhere to be found, the court based its decision to leave the

sanction in place on the patient records.

he testified that he had maintained patient information,

such as addresses, appointment dates, and prescription

information, on computers in his stores.

The court found that Wadhani’s testimony, as well as

Romm’s admission that he kept patient data on computers, cast doubt on Romm’s assertion that he had

complied with the court’s order to deliver all patient

records to Pearle Vision. After noting its hope that the 3

sanction amount would not turn into an actual judgment,

the court expressed its belief that Romm was not in

compliance with the injunction order. It stated that Romm

had been given an opportunity to explain what happened to the data patient files and had failed to do so and

that the $1,000 per day sanction would remain in place

until Romm could establish compliance with the court’s

order.

On September 12, 2005, the district court entered summary judgment on the merits of the case in favor of Pearle

Vision in the amount of $325,521.99. The court also directed Romm to show cause why $321,000 in sanctions

should not be added to the judgment. This was the amount

to which the $1,000 per day sanction had accumulated

between October 14, 2004, and September 1, 2005, the date
8 No. 07-2681

Pearle Vision’s motion for summary judgment was

granted. This amount was not set in stone, however, as

Romm was afforded the opportunity to file his individual

and corporate tax returns for the years 2002 through 2004

“[i]n order to ascertain the correct amount of the judgment to be entered on this sanction.” Additionally, the

district court stated that if Romm provided Pearle Vision

with all of the patient records at issue within fourteen

days, the order imposing the $1,000 per day sanction

would be vacated.

Romm filed an affidavit on September 27, 2005, stating

that he wished to avail himself of the second option put

to him by the court regarding the patient records. He then

proceeded to make the same arguments he had made in

October 2004—that he had complied with the court’s

order by turning over all of the physical records, and

that he was not in possession of any electronic files stored

on computers or otherwise. At a hearing on October 6,

2005, the court said it would not revisit its earlier factual

finding that Romm was not in compliance because he

had failed to produce electronic patient files. The court

then spelled out for Romm that since he was admitting

an inability to produce the missing computer files, his

only remaining option was to file his tax returns, and

he was given another week within which to make that

filing. Romm decided on another option and filed

for bankruptcy on October 10, 2005. As a result, on

October 13, 2005, the district court dismissed the action

without prejudice and with leave to reinstate.

Following proceedings in the bankruptcy court, Pearle

Vision filed a motion to reinstate proceedings and for an
No. 07-2681 9

“A discharge under . . . this title does not discharge an 4

individual debtor from any debt . . . for willful and malicious

injury by the debtor to another entity or to the property of

another entity.”

The record shows that Romm was represented by two 5

different attorneys during the district court proceedings, and

Pearle Vision represented in its motion to reinstate that Romm

also retained two different attorneys during the bankruptcy

proceedings.

entry of judgment on the contempt orders on April 11,

2007. Pearle Vision informed the court that while the

damages portion of the judgment had been discharged

by the bankruptcy court, that court believed the district

court was in a better position to determine whether

Romm’s contumacious conduct was willful and malicious,

and therefore nondischargeable pursuant to 11 U.S.C.

§ 523(a)(6). The parties appeared before the court for 4

a hearing on Pearle Vision’s motion on April 19, 2007.

For the first time in the course of the protracted proceedings, Romm appeared before the court pro se. The dis- 5

trict court asked Pearle Vision if there was an amount

below $321,000 that it would accept in satisfaction of the

contempt amount, and Pearle Vision indicated that there

likely was if the court found that Romm’s conduct

had been willful and malicious, and therefore

nondischargeable. The district court stated its reluctance

to saddle Romm with the type of liability that would

“ruin his life,” and encouraged the parties to attempt to

settle the matter. The court also set the next hearing for

May 31, 2007. On May 1, 2007, the district court entered an
10 No. 07-2681

order directing Romm to produce to Pearle Vision’s

attorney his personal and any corporate tax returns for the

years 2004 through 2006, as well as other documents that

would inform Pearle Vision of his financial standing.

Romm was directed to make these filings on or before May

21, 2007.

The district court was informed that Romm attempted to

file certain documents with the clerk’s office on May 21,

2007, in response to the court’s May 1 order. The documents included a copy of the court’s order, a handwritten

note stating that Romm had no bank accounts, interest

in real property, or interest in any business, a completed

in forma pauperis application, and an unsigned copy of

Romm’s 2005 tax returns. The clerk’s office did not accept

these documents because they contained no case caption.

Romm filed no documents with Pearle Vision’s counsel as

he had been directed to do. Romm also failed to appear at

the May 31, 2007, hearing. The court offered a final opportunity to Romm in an order entered the same day. Romm

was directed to withdraw the documents from the

clerk’s office, serve them on defense counsel, complete

compliance with the court’s May 1 order, and to appear

for a hearing on June 12, 2007. Romm did none of these

things, and took no further action below.

On June 14, 2007, the district court entered its final

memorandum opinion, providing a thorough recounting

of the proceedings, and stating that it found no basis

upon which it could discharge its earlier orders to show

cause. The court restated its finding that Romm had

failed to turn over all of the patient files as it had directed
No. 07-2681 11

him to do despite admitting that patient files were kept

in electronic form on computers in his stores. The court

concluded that Romm had willfully failed to turn over

the files and had willfully disregarded the court’s order,

and entered judgment against him and in favor of Pearle

Vision in the full sanction amount of $321,000. Romm

appeals.

II.

On appeal, Romm argues that he was not provided a full

opportunity to purge the contempt by the means set

forth in the court’s September 12, 2005, order, that the

district court’s sanction award was excessive and unrelated

to Pearle Vision’s damages, and that he was not provided

the leniency due a pro se litigator. For Romm to be held in

civil contempt, “he must have violated an order that sets

forth in specific detail an unequivocal command from the

court.” United States v. Dowell, 257 F.3d 694, 699 (7th Cir.

2001). The court’s power to enforce its order by civil

contempt “rests in its inherent limited authority to enforce compliance with court orders and ensure judicial

proceedings are conducted in an orderly manner.” Id. Such

sanctions “are properly imposed for two reasons: to

compel compliance with the court order and to compensate the complainant for losses caused by contemptuous actions.” Tranzact Techs., Inc. v. 1Source Worldsite, 406

F.3d 851, 855 (7th Cir. 2005). We will not reverse the

district court’s imposition of civil contempt sanctions

unless the court abused its discretion. Dowell, 257 F.3d

at 699.
12 No. 07-2681

Romm’s first argument regards the district court’s

September 12, 2005, order in which it directed Romm to

either produce the patient records at issue or file his tax

returns for determination of a correct judgment amount.

Romm argues that the district court disregarded his

efforts to comply with this order and purge his contempt.

In support, he relies on his September 27, 2005, affidavit,

in which he stated that he

did not take [the] computers or [the electronic] records.

All of the computers from the three stores were either

left in the stores or removed to a storage shed. Pearle

Vision was given full access to the three (3) stores and

the storage shed where those computers were located.

The electronic patient records were stored to whatever

extent, within those computers for Pearle Vision’s

review.

Romm argues that this statement is “critical” because it

contradicts the testimony received by the court in October

2004. We do not see the significance of this argument.

Romm, in essence, attempted to reargue findings made by

the court almost a year before he filed his affidavit, namely

that he was not being forthright about his possession of

patient computer files, and that he had violated the court’s

order by not making these files available to Pearle Vision.

The contents of Romm’s affidavit were not as novel as he

now argues because it was his position at least since the

October 22, 2004, hearing that he was no longer in possession of any computer containing patient files. The court

found against Romm then, and he provided no reason

for the court to revisit that finding. Notably, Romm did
No. 07-2681 13

not move for reconsideration of the court’s earlier finding,

and it is doubtful such a motion would have been granted.

See Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251

(7th Cir. 1987) (noting that the “limited function” of

motions for reconsideration is “to correct manifest errors

of law or fact or to present newly discovered evidence”)

(quotation omitted).

Furthermore, the court’s finding was not based solely on

Romm’s admission that the computer files existed, and

therefore could not be undercut merely by Romm’s affidavit. In October 2004, the court expressly relied on

Maziarek’s testimony that patient information was normally stored on computers in the Pearle Vision stores he

managed, and Wadhani’s testimony that the computers

recovered from Romm were searching for a server with

which to connect. We do not believe the district court

abused its discretion in making this finding in October

2004, nor in declining to revisit it when presented with

Romm’s affidavit. See In re Grand Jury Proceedings of December, 1989 (Freligh), 903 F.2d 1167, 1170 (7th Cir. 1990)

(noting that the district court’s findings in contempt

proceedings are only disturbed when they are an abuse

of discretion or clearly erroneous).

That being the case, we believe that if anything prevented Romm from purging his contempt under the

September 12, 2005, order, it was his own insistence on

continuing to argue that he had no files to produce, and

disregarding the other option made available to him by

the court. The district court’s order presented him with

two options—produce the files or submit his tax returns.
14 No. 07-2681

Romm chose the former, but then stated he had no files

to produce. He failed to make any attempt to submit his

financial information prior to filing bankruptcy, and the

attempt he made after the case was reinstated was woefully inadequate.

On this point, we turn briefly to Romm’s argument that

the district court failed to afford him the leniency normally

given to pro se litigants. That courts are required to give

liberal construction to pro se pleadings is well established.

Kaba v. Stepp, 458 F.3d 678, 687 (7th Cir. 2006). However,

it is also well established that pro se litigants are not

excused from compliance with procedural rules. See McNeil

v. United States, 508 U.S. 106, 113 (1993) (noting that the

Supreme Court has “never suggested that procedural

rules in ordinary civil litigation should be interpreted so

as to excuse mistakes by those who proceed without

counsel”).

Romm’s repeated procedural violations, and not a lack of

lenience by the district court, were the reason that a

judgment for the full sanction amount was ultimately

entered against him. As the record demonstrates, much of

Romm’s contumacious behavior occurred while he was

represented by counsel. See nn. 2 and 5, supra. Once the

case was reinstated following bankruptcy proceedings,

Romm seems to have finally realized that rearguing the

computer files issue was not an option. However, his

attempt to produce his financial documents in response

to the court’s May 1, 2007, order was inadequate even by

pro se litigant standards. Romm’s production was incomplete, and he attempted to file the papers at the clerk’s
No. 07-2681 15

Even if Romm had been directed to file the papers at the 6

clerk’s office, his inability or unwillingness to satisfy the basic

filing requirement of including a case caption is notable,

especially in light of how many pro se litigants fulfill this

basic requirement daily in courts across the country. Moreover,

Romm did not face some of the hurdles many pro se litigants

do, such as imprisonment. He is an optometrist who was free

to engage in the litigation to the best of his abilities.

office instead of serving them on Pearle Vision’s counsel

as directed. The court did not leave Romm to his own 6

devices at this point, however. Instead, it issued an order

informing him that the documents would not be

accepted as filed, the reason for their rejection, and what

he should do next, namely, make a full production of the

responsive documents to Pearle Vision’s counsel. Leading

a pro se litigant through the steps he should follow by

piecemeal instructions can hardly be described as a lack

of leniency.

Furthermore, if Romm had any doubt about what he

should do, it could likely have been cleared up when he

appeared before the court. Unfortunately, Romm did not

appear at any hearings following the one held on April 19,

2007, even thought the May 31, 2007, hearing was scheduled in Romm’s presence at the April 19 hearing. The

record establishes that the district court treated Romm

fairly and repeatedly stated its desire that he not receive

a judgment against him for the full sanction of $1,000 per

day. A small level of cooperation from Romm, and certainly a level attainable by a pro se litigant, would have

resulted in a different outcome for him. However, Romm’s
16 No. 07-2681

failure to cooperate led to the entry of judgment in the

amount of $321,000. That judgment did not result from

the district court’s lack of deference for his pro se status.

Finally, regarding the judgment amount, Romm argues

that it is excessive and not related to Pearle Vision’s

damages. Our review of the record indicates that Romm

did not raise this argument before the district court. Romm

argued repeatedly that he should not have to pay the

sanction because he was not in possession of any computer patient files. He never argued that the $1,000 per

day fine was unequal to Pearle Vision’s actual loss, unrelated to the magnitude of his contempt, or out of proportion to his financial resources, which are our concerns

when reviewing a contempt amount. See United States v.

United Mine Workers of Am., 330 U.S. 258, 303-04 (1946).

Accordingly, this argument is waived. See Metzger v. Ill.

State Police, 519 F.3d 677, 681-82 (7th Cir. 2008).

III.

There was no basis for the district court to revisit its

earlier factual finding regarding Romm’s possession of the

computer patient files and his failure to turn them over.

Romm was therefore not denied an opportunity to purge

his contempt as set forth in the district court’s September

12, 2005, order. Additionally, the district court exhibited

sufficient deference to Romm’s pro se status when the

case was reinstated following the bankruptcy proceedings. Finally, because Romm did not argue below that the

contempt amount was excessive, he waived the argument
No. 07-2681 17

and may not raise it here for the first time. Accordingly, the

judgment of the district court is AFFIRMED.

9-3-08