OPINION AND ORDER In May 2017, William Doonan was sentenced, following his guilty plea, to a term of incarceration of twenty-four months for willfully helping prepare fraudulent tax documents, in violation of 26 U.S.C. §7206(2), and corruptly trying to obstruct the government from administering the federal tax laws, in violation of 26 U.S.C. §7212(a). In this action, the United States of America (the “Government”) seeks injunctive relief against Doonan and the company he operates, William Doonan and Associates, Inc. (“WDA”), that, among other things, would permanently enjoin them from preparing any tax returns that are not their own and from violating the federal tax laws. For the reasons that follow, the Court grants the Government’s motion for summary judgment and enters a permanent injunction. I. Background A. Facts in Dispute Before discussing the facts of this case, the Court first addresses what facts are in dispute. Local Civil Rule 56.1(a) requires a party moving for summary judgment to include “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Loc. Civ. R. 56.1(a). Rule 56.1(b), in turn, requires the party opposing such motion to respond with “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Loc. Civ. R. 56.1(b). While the Government, as the movant, has complied with Rule 56.1(a), Doonan has not submitted his own correspondingly numbered statement in response to the Government’s Rule 56.1 statement, nor has he submitted his own Rule 56.1 statement. Instead, Doonan submitted a sur-reply brief that purported to raise genuine disputes of material fact. See Dkt. 97. Doonan included a letter with that filing asking the Court to grant him special solicitude, as a pro se litigant, to respond. See Dkt. 98. The Court denied Doonan’s request, and as such it will not consider his sur-reply in deciding this motion. Dkt. 100. Still, even though Doonan as a disbarred attorney is not entitled to receive special solitude, see United States v. Pierce, 649 F. App’x 117, 118 n.1 (2d Cir. 2016), and even though “[p]ro se litigants are…not excused from meeting the requirements of Local Rule 56.1,” Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (citation omitted), the Government does not appear to object to the Court’s exercise of its discretion to consider Doonan’s arguments in his opposition brief that reference evidence responding to the Government’s Rule 56.1 statement. See Dkt. 95 (“Reply”) at 3. Accordingly, “the Court, in its discretion, will consider the opposition brief as opposition to [the Government's] Rule 56.1 Statement.” Brooks v. Westchester Cty. Jail, No. 19 Civ. 10901 (PMH), 2021 WL 3292229, at *1 n.4 (S.D.N.Y. Aug. 2, 2021). The Court therefore begins with addressing what pieces of evidence Doonan tries to dispute in opposing the Government’s motion for summary judgment. See Dkt. 94 (“Opposition”) at 2. The first item that Doonan challenges is a declaration sworn and signed by Lori Dixon, a Revenue Agent for the Internal Revenue Service (“IRS”), which the Government filed in support of its motion. See Dkt. 92 (“Dixon Decl.”). Although not entirely clear, Doonan seems to contend either that the Court should not consider the Dixon Declaration or that there are factual disputes about the content of that declaration because (1) “[j]ust about every example of what IRS Revenue Agent Lori Dixon says is fraudulent,” (2) Doonan did not have an opportunity to cross-examine Revenue Agent Dixon, and (3) the declaration is “total unaltered hearsay.” Opposition at 2, 12. In considering a motion for summary judgment, a court may rely on an affidavit or declaration if it is “made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4); accord Seife v. Food & Drug Admin., No. 17 Civ. 3960 (JMF), 2019 WL 1382724, at *1 (S.D.N.Y. Mar. 27, 2019) (“[A] district court may rely on an affidavit or declaration when deciding a motion for summary judgment only if it is ‘made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.’” (quoting Fed. R. Civ. P. 56(c)(4))). A court disregards any statements in an affidavit or declaration that do not comply with Rule 56(c)(4). See Seife, 2019 WL 1382724, at *1. Applying these principles, the Court finds that it can properly consider the Dixon Declaration and that Doonan has not properly disputed any facts set forth therein, except for statements attributed to a third-party witness, as discussed shortly. First, Doonan cannot create factual disputes in the declaration by nakedly attacking Revenue Agent Dixon’s motivations or claiming that she is lying without pointing to any evidence supporting the claim. To refute a fact, “the non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (cleaned up). Second, and despite his suggestion otherwise, Doonan did have the opportunity to question Revenue Agent Dixon under oath. Doonan chose to not depose Revenue Agent Dixon during discovery for this case, despite the Government offering to schedule a deposition. See Dkt. 71 at 26 (Doonan telling Magistrate Judge Katharine H. Parker, to whom the case was referred for general pretrial supervision, that he was “not deposing Lori Dixon” and Judge Parker then confirming with Doonan that he did not wish to depose Revenue Agent Dixon). Third, Doonan has identified no specific parts of the Dixon Declaration that put forth evidence that would count as inadmissible hearsay. And nearly all the declaration does not qualify as hearsay. The declaration does include, however, statements made by one of Doonan’s former clients, Michael Leonard, to Revenue Agent Dixon during an August 10, 2016 interview. See Dixon Decl.
17-18. Revenue Agent Dixon reported that, during this interview, Leonard discussed fraudulent tax returns that Doonan prepared on his behalf. Id. When the Government tried to depose Leonard, he invoked his Fifth Amendment right against self-incrimination. See Jacob Decl., Exh. C at 3. Although Leonard’s statements to Revenue Agent Dixon appear to be against Leonard’s propriety or pecuniary interests, cf. Fed. R. Evid. 804(b)(3), the Court declines to consider them at this stage. Even though a witness who “properly invokes his Fifth Amendment right against self-incrimination” can be considered “unavailable for the purposes of Rule 804[],” United States v. Miller, 954 F.3d 551, 561 (2d Cir. 2020), the Government has not shown that Leonard has been “exempted from testifying” by a judicial “ruling that [the] privilege applies” or that he has “refuse[d] to testify…despite a court order to do so,” Fed. R. Evid. 804(a)(1), (a)(2). He therefore is not considered unavailable under Federal Rule of Evidence 804(a) at this stage. Thus, the Court will consider the Dixon Declaration undisputed, except it will disregard the portions of the declaration that recounts Leonard’s statements to Dixon. Doonan also claims that there are facts in dispute about the conduct that was the basis for his criminal conviction. Opposition at 11-14. As detailed below, Doonan pleaded guilty to willfully aiding and assisting in the preparation of false or fraudulent documents in matters arising under the internal revenue laws, in violation of 26 U.S.C §7206(2), and corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws, in violation of 26 U.S.C. §7212(a). United States v. Doonan, No. 16 Cr. 732 (VSB) (S.D.N.Y.), Dkts. 7, 15; Dixon Decl., Exh. F (“Plea Tr.”) at 7-8. Now, however, Doonan claims that there are disputed facts about that criminal conduct because the IRS investigator who worked on his criminal case “was out TO GET WILLIAM CHRISTOPHER DOONAN,” that he is innocent of those crimes, and that he only pleaded guilty to avoid collateral consequences associated with a post-trial conviction. Opposition at 11, 14, 21-23. But Doonan never sought to withdraw his guilty plea, he did not appeal his conviction, and he has not moved to vacate his conviction. See generally Doonan, No. 16 Cr. 732 (VSB). It is “well-settled that a criminal conviction, whether by jury verdict or guilty plea, constitutes estoppel in favor of the United States in a subsequent civil proceeding as to those matters determined by the judgment in the criminal case.” United States v. Podell, 572 F.2d 31, 35 (2d Cir. 1978). Thus, there are no factual disputes relating to the conduct underlying Doonan’s conviction for violating sections 7206(2) and 7212(a). Lastly, Doonan baldly asserts “that there are many, many facts in dispute” without pointing to any evidence suggesting that to be the case. Opposition at 11; see also id. at 24. But again, to refute a fact, “the non-moving party…may not rely on conclusory allegations or unsubstantiated speculation.” Great Am. Ins. Co., 607 F.3d at 292 (cleaned up). Doonan’s vague, general, and conclusory statements about factual disputes existing are insufficient to create a material dispute of fact. In sum, the Opposition fails to reference any evidence in response to the Government’s Rule 56.1 statement to adequately dispute any fact, except for evidence surrounding Leonard’s statements to Dixon. B. Facts1 The Court now turns to the facts of this case. Doonan served as the Chief Executive Officer (“CEO”) of WDA, a company that provided tax preparation services to tax-payer customers in the greater New York City area. Dixon Decl. 4, Exh. A at 1; Pl. 56.1 Stmt. 1. From at least 2009 to 2016, he operated WDA and prepared tax returns for its customers. Dixon Decl. 7, Exh. E (“Information”) at 1; Pl. 56.1 Stmt. 2. Between the 2012 and 2016 tax processing years, Defendants filed over 23,000 tax returns on behalf of others. Dixon Decl.
