Fidelity Natl Fin v. Friedman, et al

Filing 248

ORDER "Fidelity's Motion to Strike Farid and Anita Meshkatai's Response 228 to Plaintiff's Reply in Support of Motion for an Order to Show Cause re: Civil Contempt for Violation of the Court's Orders to Yariv Elazar as not Authorized by Statute, Rule, or Court Order" 230 is GRANTED; Fidelity's "Motion for an Order to Show Cause re: Civil Contempt against Farid Meshkatai, Anita Meshkatai, the Kramer Insurance Trust, Daniel Campbell, and Allen Hyman for Violations of the Courts Orders to Yariv Elazar" 191 is GRANTED; and IT IS FURTHER ORDERED that Farid Meshkatai, Anita Meshkatai, the Anna and Noach Kramer Irrevocable Insurance Trust, Daniel J. Campbell, and Allen Hyman shall appear, in perso n or by telephone, for a scheduling conference to be held on April 20, 2009 at 10:30 a.m. At that time, among other things, the court will establish a date for a hearing on this Motion and Order to Show Cause. Signed by Judge Robert C Broomfield on 3/30/09.(KMG)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Fidelity National Financial, Inc., et al., Plaintiffs, vs. Colin H. Friedman, individually and as trustee of the Friedman Family Trust UDT, dated July 23, 1987; Hedy Kramer Friedman, individually and as trustee of the Friedman Family Trust UDT, dated July 23, 1987; Farid Meshkatai, an individual; and Anita Kramer Meshkatai, individually and as trustee of the Anita Kramer Living Trust, dated July 23, 1987, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 03-1222 PHX RCB ORDER Introduction Since 2002, plaintiffs, Fidelity National Financial, Inc. and Fidelity Express Network, Inc. ("Fidelity"), have been attempting to enforce a nearly $8.5 million dollar judgment, which was entered 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in their favor and against defendants in the United States District Court, Central District of California. Over the past five years, Fidelity has engaged in extensive collection activities in this court and in California federal courts, familiarity with which is assumed. This latest dispute arises out of a February 7, 2007, order of this court wherein it granted Fidelity's motion to compel document production from Yariv Elazar, a non-party. Fidelity National Financial, Inc. v. Friedman, 2007 WL 446134 (D.Ariz. Feb. 7, 2007) ("discovery order"). The court also granted Fidelity's motion for sanctions "directing [Mr.] Elazar to pay . . . sanctions in the amount of $1,170.00 to [Fidelity] for attorney's fees incurred in bringing th[at] motion to compel." Id. at *5. Currently pending before the court is Fidelity's "Motion for an Order to Show Cause [("OSC")]" seeking to hold defendants Farid Meshkatai and Anita Kramer Meshkatai1 in civil contempt for violating the discovery order directed to Mr. Elazar. 191) at 3, 11. Mot. (doc. Fidelity is also seeking to hold three non- parties in contempt for supposedly violating that discovery order - "the Kramer Insurance Trust,2" and attorneys J. Daniel Campbell3 and Allen Hyman. Id. Lastly, there is a motion pending by Unless necessary to distinguish between Mr. and Mrs. Meshkatai, they will be collectively referred to throughout as "the Meshkatais." As just stated, Fidelity refers to this trust as "the Kramer Insurance Trust," but according to the Trustee for the "The Anna and Noach Kramer Irrevocable Insurance Trust," which is opposing this motion, there is no such entity as "the Kramer Insurance Trust." See Spector Decl'n (doc. 204) at 10, 6. The court is proceeding on the assumption that Fidelity is referring to the former trust entity. In light of the foregoing, for purposes of this order only, "Trust" shall be read as meaning "The Anna and Noach Kramer Irrevocable Insurance Trust." Mr. Campbell is the "former attorney[]" for the Meshkatais, "[i]ndividually and as trustee of the Anita Kramer Living Trust, and Non-Party Yariv Elazar[.]" Mot. (doc. 210) at 2:14-16. 3 2 1 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fidelity to strike the Meshkatais' response to Fidelity's reply. Mot. (doc. 230). Background I. Request for Judicial Notice With their response, the Meshkatais filed a Request for Judicial Notice ("RJN") (doc. 218), which is seven inches high and totals more than 1600 pages. This RJN is burdensome, not only For because of its volume, but because parts of it are illegible. example, some but not all of the documents (i.e., copies of checks and transcripts) have been reduced in size to the point where it is almost impossible to read them without magnification. Fidelity objects to this RJN, contending that 11 of the 17 proffered exhibits constitute inadmissible hearsay and are irrelevant. Obj. (doc. 226-4). When properly employed, RJNs are useful litigation devices. The manner in which the Meshkatais' RJN has been presented has the opposite effect. II. Thus, the court denies their RJN.4 Pl. Prior Motion to Compel While conducting investigations as part of their post-judgment collection efforts, in September 2006, Fidelity "apparently learned that the judgment debtors who are Defendants in this action had loaned a large sum of money to [Mr.] Elazar, a third party residing in Scottsdale, Arizona." omitted). Fidelity, 2007 WL 446134, at *1 (citation On October 10, 2006, Fidelity "served Elazar with a 4 If ultimately the court grants this motion for an OSC as to the Meshkatais, and orders an evidentiary hearing as to why they should not be held in contempt, they will, of course, be free to seek to introduce any of those documents as exhibits. The court will rule on the admissibility of the proffered exhibits at that time. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 subpoena issued by this Court for documents related to transactions with the judgment debtors." Id. (citations omitted). One day prior to the date Elazar was to produce those documents, Allen Hyman, a California lawyer who indicated that he represented Elazar, sent a letter to Fidelity objecting to that subpoena. (citation omitted). Id. When Elazar did not comply with the subpoena, eventually, Fidelity filed a motion to compel. On December 4, 2006, J. Daniel Campbell entered an "appearance on behalf of "Non-Party Yariv Elazar" and "on behalf of Defendants Farid Meshkatai and Anita Meshkatai, individually and as trustees of the Anita Kramer Living Trust." Docs. 123 and 124. Attorney Mr. Campbell did not appear on behalf of the Trust, however. Campbell also filed a response to Fidelity's motion to compel, again only on behalf of the Meshkatais and Mr. Elazar not on behalf of the Trust. A. See Doc. 125. Discovery Order After making a threshold determination that it had jurisdiction over Elazar because attorney Campbell had appeared on his behalf, the court found no merit to any of the objections to the motion to compel. See Fidelity, 2007 WL 446134, at *1 n.1. Recognizing that "the purpose of post-judgment discovery under Rule 69(a) is to discover concealed or fraudulently transferred assets[,]" this court found that Fidelity "made a strong showing that the documents sought from Elazar are both relevant and necessary in light of [its] discovery of a substantial loan from the judgment debtor to Elazar." Id. at *2 (citations omitted). Discounting defendants' suggestion of an "improper motive" by Fidelity in the timing of the Elazar subpoena, the court stated -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that it "perceive[d] nothing sinister about [Fidelity's] motives" in that regard. Id. at *3. The court explained, "Defendants cast greater doubt on their own motives through their silence on the issue of the alleged loan transaction and their hollow assertions that the documents sought from Elazar are irrelevant." Id. Finally, in granting Fidelity's motion to require Mr. Elazar to pay Fidelity's attorney's fees, the court noted that the "underlying objections to the subpoena served on Elazar border on frivolous." Id. at *4. B. Alleged Failure to Produce According to Fidelity, some but not all of the subpoenaed documents were produced. Fidelity maintains that "[k]ey documents were omitted from that production, including documents evidencing the Meshkatais and [the] Trust's violations of an asset freeze" in the California RICO action. See Mot. (doc. 191) at 2, 8. It therefore, asserts that "[t]here is [u]ndisputed, [c]lear, and [c]onvincing [e]vidence that Elazar [v]iolated the Court's [o]rders." Reply (doc. 226) at 2:21 (emphasis added). Despite the foregoing, Fidelity has turned its attention away from Elazar for the moment. Fidelity is seeking to hold the Meshkatais, the Trust and attorneys Campbell and Hyman in contempt, but not Mr. Elazar. As to the Meshkatais, Fidelity maintains that "[w]ithout Elazar's knowledge, Farid Meshkatai produced the documents and Anita Meshkatai paid the sanctions with money from the Trust." Id. at 2, 7. The copy of the check in the record purporting to be that payment is written on the account of Eliani, -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LLC,5 however, not on any trust account. 2), exh. 38 thereto. Kroll Decl'n (doc. 191- To show Elazar's supposed lack of knowledge as to the claimed incomplete production of documents and payment of the sanctions by Mrs. Meshkatai, Fidelity heavily relies upon Elazar's May 8, 2008, deposition. Apparently Elazar was not represented by counsel then. Id. at 2, 9; see also Gulden Decl'n (doc. 216) at 19, 3; Kroll Decl'n (doc. 191-2), exh. 12 thereto at 6:21-23. The record is replete with alleged irregularities surrounding that deposition. Suffice it to say for now that during his deposition, Mr. Elazar was specifically asked whether he knew attorneys Campbell or Hyman. When asked how he knew Mr. Hyman, Elazar testified that he "never met" Hyman, but that Hyman "called" him and Hyman "asked [him] a few questions." Id., exh. 12 thereto at 10:24-25 - 11:1. When asked "what questions" Hyman asked of him, Elazar replied: "What is written on the subpoena and what kind of documents [Elazar] [was] going to send them." 4. Id., exh. 12 thereto at 11:2- Mr. Elazar does not think he sent the documents to attorney See id., exh. 12 thereto at 11:6-7. In fact, later in his Hyman. deposition, Mr. Elazar stated that he "want[ed] to make clear[]" that he did not give Mr. Hyman anything. 117:2-10. As to attorney Campbell, Elazar testified that he did not know him. 5 Id., exh. 12 thereto at Id., exh. 12 thereto at 11:8-10. Elazar further testified The court is well aware of the seemingly close relationship between Eliani and the Trust. As the Trustee explains, "Eliani is a joint venturer with Elazar of three real estate projects." Spector Decl'n (doc. 204) at 10, 8. "Eliani was a joint venture between . . . Elazar and Farid Meshkatai to renovate houses in Arizona." Id. The Trustee further declares that "[t]he Trust provided capital to Elazar." Id. -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that he was unaware that Campbell and another attorney in his office filed a response to Fidelity's motion to compel. 12 thereto at 11:13-18. Id., exh. Elazar continued, testifying that he was not aware of this court's discovery order, or the sanctions award. Id. at 12:2-5; and 9-11. When asked if he was "aware that Eliani, I LLC paid the fine on [his] behalf[,]" Mr. Elazar responded, "No. never know that I need to pay something." Id. at 12:12-14. When asked whether he had "any problem with responding to [the subpoena] and producing the documents[,]" Elazar replied, "No." 8. Fidelity is seeking five separate forms of relief for the alleged civil contempt. First, it is seeking to hold "contemnors . Id. at 13:5- . . joint[ly] and severally liable" for unspecified "costs incurred to uncover [their] fraud[.]" Mot. (doc. 191) at 17. The other three forms of relief which Fidelity is seeking pertain only to the Meshkatais and the Trust. It seeks a court order requiring them to [p]roduce [d]ocuments [e]videncing [t]ransfers to Elazar and Eliani's [a]ssets." Id. at 17:22-23. Fidelity further seeks that the Meshkatais and the Trust be ordered to "[p]roduce an [a]ccounting for Eliani." Id. at 18:10. Fidelity next requests that the court impose a two day notification on the Meshkatais and the Trust prior to "making any payment on behalf of Eliani or the joint venture with Elazar[.]" Id. at 18:23-24. Finally, it requests that the court order the Meshkatais and the Trust "to pay to the RICO clerk of court [i.e., the clerk for the United States District Court, Central District of California], the amount of the lien they released in violation of the asset freeze and hid by their violations of this Court's orders." -7Id. at 19:7-9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Meshkatais The Meshkatais oppose Fidelity's motion, which they assert is based upon "unsupported allegations that [their] former attorney, Allen Hyman . . . , did not produce documents given to him by Elazar, and that Elazar was unaware that Hyman represented him in connection with the" discovery order. Resp. (doc. 216) at 1:17-20. Characterizing Fidelity's motion as "an attempt to prejudice this Court against [them] and vexatiously multiply proceedings in this Court] and in the related California actions, the Meshkatais contend that the court should "summarily" deny this motion. 3:8-10. Id. at Alternatively, the Meshkatais seek a hearing during which they want to cross-examine Fidelity's attorney herein, Janice M. Kroll, and "afford [Mr.] Elazar the opportunity to clarify his deposition testimony." Id. at 3:12-13 (footnote omitted). Fidelity responds that it has shown by clear and convincing evidence that the Meshkatais "aided" the violations of this court's discovery order; they are "[l]egally `[i]dentified with Elazar[;]" and they have acted in "bad faith." 12. Reply (doc. 226) at 5:2 and Therefore, the court should grant Fidelity's motion and find the Meshkatais in contempt. D. Attorney Campbell Mr. Campbell's involvement with the present action appears to have been fairly limited. He represented the Meshkatais and purportedly Mr. Elazar in connection with the motion to compel, after being contacted by California attorney Hyman, who at the time was purportedly representing Elazar. Campbell Aff. (doc. 210-2) at -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2-3.6 He filed and prepared a response to the motion to compel on Id. at 3, 11 (citation omitted). After entry of their behalf. the discovery order, Mr. Campbell avers that he "immediately contacted Mr. Hyman to determine the quickest way for the documents to be produced to [Fidelity's] counsel." Id. at 3, 12. They "decided to produce the documents through Mr. Hyman's office, as he had been more extensively involved in the litigation." Id. Also, given the proximity of Mr. Hyman's office to the office of Fidelity's counsel in California, "Mr. Hyman could get the documents to [Fidelity] faster than" could Campbell's office. According to Mr. Campbell, the documents were produced through Hyman's office on February 22, 2007. Id. at 3, 13. Id. "At best," attorney Campbell describes Fidelity's motion as "a heavy-handed attempt to intimidate anyone who would stand in its way." Id. at 3:4-5. At worst, according to Campbell, this motion Id. at "may constitute a blatant misrepresentation to this Court." 3:6-7 (footnote omitted). Mr. Campbell strongly argues that he should not be held in contempt because the documents were produced and Fidelity did not "suffer[]" any "harm" in that its attorneys were compensated through the award of sanctions. Id. at 5:19-20. Moreover, Campbell asserts that he "acted in good faith," and thus cannot be held in contempt. Id. at 5. Alternatively, as did the Meshkatais, Campbell requests an evidentiary hearing. Id. at 9. He also wants the "opportunity to Id. Believing the Elazar's conduct appropriate discovery[.]" 6 The court is aware of Fidelity's "Evidentiary Objections" to Campbell's declaration, and its request to strike included therein. Obj. (doc. 225-2) at 2:1. However, because Fidelity is not objecting to any of the paragraphs from Campbell's declaration upon which the court is relying herein, it denies this request as moot. -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deposition "was extremely irregular in the manner in which it was taken[,]" Campbell wants to be allowed to conduct a full investigation into th[at] . . . deposition . . . and the motives of Fidelity in its decision to attack counsel." Id. at 3 n.1. Therefore, he requests that the court grant a scheduling conference in that regard. Id. at 9-10. Fidelity retorts that "clear and convincing evidence shows that Campbell aided" violations of the discovery order. (doc. 225) at 8-9 (emphasis omitted). Reply Moreover, from Fidelity's standpoint, Campbell "failed to insure that Elazar took all reasonable steps to comply with" the discovery order. Id. at 2:3. Further, Fidelity asserts that Campbell "acted recklessly and with an improper purpose[,]" and he "unreasonably multiplied proceedings." Id. at 6:2; and at 7:9-10. In light of the foregoing, Fidelity requests that the court issue an OSC regarding civil contempt as to Mr. Campbell. E. Attorney Hyman Id. at 9:24-25. Attorney Hyman did not respond at all to this motion, despite the fact the he was personally served. See Doc. 192 at 2. Fidelity urges this court to use Hyman's silence as a basis for finding that: "Elazar did not retain Hyman; Elazar did not authorize Hyman to oppose the subpoena; Elazar did not authorize Campbell to appear on his behalf; Elazar did not authorize Campbell to oppose the subpoena and the motion to compel; Hyman did not notify Elazar of the [discovery] order, and Elazar did not produce documents to Hyman." Reply (doc. 225) at 6-7. More reasonably, given Hyman's failure to respond, Fidelity believes that the court should issue an OSC as to him. - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. Trust Fidelity contends that the Trust, another non-party, should be held in contempt because it, along with the Meshkatais, purportedly "concealed Fidelity's judgment from Elazar in order to use Elazar to implement fraudulent transfers and shelter assets from Fidelity." Mot. (doc. 191) at 1:10-11. Fidelity further claims that "the Meshkatais and the Trust simply pretended to this Court that they were Elazar without Elazar's knowledge, their attorneys appeared for Elazar, objected to the subpoena, and produced only select documents to Fidelity." (emphasis in original). The Trust first objects to Fidelity's motion for an OSC based upon lack of personal jurisdiction. Second, the Trust objects, Id. at 1:12-14 arguing that any contempt proceeding as to it should be brought in the Central District of California because if any court order was violated by Mrs. Meshkatai writing the sanctions check, it was an order issued by that court in the RICO action. Fidelity responds by seeking to have the court strike the Trust's response as untimely. If the court denies that request, Fidelity further responds that the court does have personal jurisdiction over the Trust for several reasons, which are set forth below in a brief discussion of that issue. On the merits, Fidelity argues that the Trust is "legally identified with Eliani and" the Meshkatais, and it participated in the alleged "fraud" by supposedly paying "Campbell to represent Elazar[,]" and to "pay the Court-ordered sanctions." omitted). Reply (doc. 222) at 7:11-13 (citations Therefore, Fidelity maintains that the court should issue an OSC as to why the Trust should not be held in civil - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 contempt. Discussion I. Motion to Strike "[T]he Local Rules make no provision for a `reply to a reply.'" Spain v. EMC Mortg. Co., 2009 WL 464983, at *2 (D.Ariz. Those Rules "are explicit in allowing a Feb. 24, 2009). `Memorandum by Moving Party[;]' a `Responsive Memorandum[;]' and a `Reply Memorandum' - nothing more." Id. (citing LRCiv 7.2). Therefore, as LRCiv 7,.2(m)(1) allows, the court grants Fidelity's motion to strike the Meshkatai's "Response to Plaintiffs' Reply," which is docket #228. That "response," despite its title is, in effect, a prohibited "reply to a reply," which the court will not consider. II. Motion for Order to Show Cause Before addressing the merits of Fidelity's motion, the court will briefly consider the Trust's lack of personal jurisdiction argument. A. Personal Jurisdiction 1. Strike Preliminarily, the court must consider Fidelity's contention Reply (doc. 21 that the court should "strike" the Trust's response. 22 222) at 2. Invoking LRCiv 7.2(I), Fidelity seeks to have the court 23 "strike" the Trust's response as untimely because it was filed two 24 weeks late. Id. Pursuant to that subsection, a court "may . . . 25 deem[]" failure to fully comply with LRCiv 7.2 "consent to the 26 denial or granting of the motion and the court may dispose of the 27 motion summarily." LRCiv 7.2(I) (emphasis added). That Rule makes 28 no express provision for striking untimely responses, however. - 12 - 1 Because motions to strike are generally disfavored, see LRCiv 2 7.2(m)(1), the court will not strike the Trust's response. 3 Similarly, in the exercise of its discretion, the court will not 4 deem the Trust's untimely response as consent to granting Fidelity's 5 contempt motion. 6 7 2. Merits After stressing that it is not a party to this action, the 8 Trust asserts that this court should not exercise personal 9 jurisdiction over it because it has never: (1) "appeared before this 10 Court; (2) consented to jurisdiction of this Court; or (3) waived 11 its right to raise lack of personal jurisdiction." 12 at 3:5-6. Resp. (doc. 204) The Trust further states that it "has no ties to the Id. at 3:8-9. The Trust also claims that it is See id. at 3:9. 13 State of Arizona." 14 not domiciled here, and does not do business here. 15 Fidelity counters that the court does have personal 16 jurisdiction over the Trust because it (1) "has waived any 17 objections[;]" (2) "was properly served[;]" (3) "consented to 18 jurisdiction in Arizona[;]" (4) "has regular and continuous contacts 19 in Arizona, does business in Arizona, owns real estate in 20 Arizona[;]" and (5) "the contemptuous conduct which is the subject 21 of this Motion arises out of the Trust's business and real estate 22 holdings in Arizona." 23 Reply (doc. 222) at 2-3; and 5:3. Preliminarily, the court stresses that the Trust's non-party See, 24 status does not preclude a finding of contempt against it. 25 e.g., Peterson v. Highland Music, Inc., 140 F.3d 1313, 1323 (99th 26 Cir. 1998) (internal quotation marks and citations omitted) (non27 party respondent may be held in contempt either if he "abet[s] the 28 defendant [in violating the court's order] or [is] legally - 13 - 1 identified with [the defendant, . . . and . . . the non-party ha[d] 2 notice of the order[]"). In any event, at this juncture, the court 3 finds the Trust's personal jurisdiction arguments "premature" 4 because it deems the process here to be the OSC, which the court has 5 not yet issued. See In re Resource Technology Corp., 2008 WL Dec. 23, 2008). Accordingly, the court 6 5411771, at *3 (N.D.Ill. 7 will leave for another day the Trust's contention that this court 8 lacks personal jurisdiction. 9 10 B. Scope of Alleged Contempt Fidelity's motion can easily be read, as did the Meshkatais, as 11 seeking contempt sanctions for violating orders other than the 12 discovery order issued by this court. Fidelity makes clear in its 13 reply, however, that it is limiting the scope of its contempt motion 14 to alleged violations of this court's discovery order. 15 226) at 2. Reply (doc. Given this clarification, the court will confine its 16 inquiry to whether an OSC should issue for alleged violations of the 17 February 7, 2007 discovery order. 18 19 C. Governing Legal Standards "[C]ourts have inherent power to enforce compliance with their Spallone v. United States, 20 lawful orders through civil contempt." 21 493 U.S. 265, 276 (1990). In a civil contempt proceeding"[t]he 22 moving party has the burden of showing by clear and convincing 23 evidence that the contemnors violated a specific and definite order 24 of the court." Federal Trade v. Enforma Natural Products, 362 F.3d 25 1204, 1211 (9th Cir. 2004) (internal quotation marks and citations 26 omitted). 27 suffice. A "mere[] . . . preponderance of the evidence[]" will not In re Dual-Deck Video Cassette Recorder Antitrust Litig., Generally, a violation is shown - 14 - 28 10 F.3d 693, 695 (9th Cir. 1993). 1 by the party's "failure to take all reasonable steps within the 2 party's power to comply." Reno Air Racing Ass'n., Inc. v. McCord, 3 452 F.3d 1126, 1130 (9th Cir. 2006) (internal quotation marks, 4 citation and footnote omitted). 5 contempt. See id. Willfulness is not an element of Once the moving party meets its burden, the 6 burden "shifts to the contemnors to demonstrate why they were unable 7 to comply." Enforma Natural Products, 362 F.3d at 1211 (internal 8 quotation marks and citations omitted). 9 "[C]ivil contempt sanctions, or those penalties designed to 10 compel future compliance with a court order, are considered to be 11 coercive and voidable through obedience, and thus may be imposed in 12 an ordinary civil proceeding upon notice and an opportunity to be 13 heard." Int'l Union v. Bagwell, 512 U.S. 821, 827 (1994). "Neither Id. 14 a jury trial nor proof beyond a reasonable doubt is required." 15 Thus, the Ninth Circuit "has repeatedly held, . . . , that finding a 16 party in civil contempt without a full blown evidentiary hearing 17 does not deny due process of law to a contemnor." United States v. Of 18 Ayres, 166 F.3d 991, 995 (9th Cir. 1999) (citations omitted). 19 particular significance here, however, is the Ninth Circuit's 20 explicit recognition that "a district court ordinarily should not 21 impose contempt sanctions solely on the basis of affidavits[,]" 22 unless those affidavits are uncontroverted. 23 marks and citations omitted). 24 25 D. Hearing Id. (internal quotation In the present case, as earlier noted, if the court does not 26 summarily deny this motion, in the alternative, the Meshkatais and 27 Mr. Campbell request an evidentiary hearing. 28 respond to these requests. Fidelity did not Instead, Fidelity adheres to the view - 15 - 1 that it has shown by clear and convincing evidence that the 2 Meshkatais, the Trust and attorneys Campbell and Hyman should be 3 held in civil contempt for violating this court's discovery order. 4 The court extensively reviewed these submissions, but even a 5 quick perusal highlights the necessity of a full-blown evidentiary 6 hearing. The sheer volume of the submissions and the widely varying 7 interpretations which Fidelity and each of the respondents cast upon 8 them, especially the Elazar deposition, belies Fidelity's assertion 9 that it has met its burden of proof on this record. The filed 10 submissions are at times contradictory and rife with credibility 11 issues. Given that state of the record, it is impossible and, in 12 fact, it would be impermissible to resolve the issue of civil 13 contempt based solely upon the competing affidavits, declarations 14 and other filed documents. An evidentiary hearing will allow for a 15 fully developed factual record, including credibility assessments. 16 A hearing will serve the additional critical purpose of insuring 17 that Fidelity and the respondents meet their respective burdens of 18 proof. 19 Any discussion of contempt remedies is obviously premature. 20 The court emphasizes, as earlier alluded to though, that Fidelity is 21 overreaching in terms of the scope of the remedies which it purports 22 to seek. To the extent Fidelity is seeking to have this court enter 23 any orders with respect to the related California actions, the court 24 declines to do so, and will not entertain any further requests in 25 that regard. See, e.g., Barrett v. Avco Financial Services 26 Management Co., 292 B.R. 1, 8 (D.Mass. 2003) (citing, inter alia, 27 Baker v. Gen. Motors Corp., 522 U.S. 222, 236, 118 S.Ct. 657, 139 28 L.Ed.2d 580 (1998)) ("[I]t is a well-established principle that only - 16 - 1 the court that issued an order or injunction has subject matter 2 jurisdiction to hold in contempt a violator of that order or 3 injunction.") 4 5 6 7 8 9 10 11 12 13 Conclusion For the reasons set forth herein, IT IS ORDERED that: (1) "Fidelity's Motion to Strike Farid and Anita Meshkatai's Response to Plaintiff's Reply in Support of Motion for an Order to Show Cause re: Civil Contempt for Violation of the Court's Orders to Yariv Elazar[] as not Authorized by Statute, Rule, or Court Order" (doc. 230) is GRANTED; (2) Fidelity's "Motion for an Order to Show Cause re: Civil Contempt against Farid Meshkatai, Anita Meshkatai, the Kramer Insurance Trust, Daniel Campbell, and Allen Hyman for Violations of the Court's Orders to Yariv Elazar" (doc. 191) is GRANTED; and IT IS FURTHER ORDERED that Farid Meshkatai, Anita Meshkatai, 14 the Anna and Noach Kramer Irrevocable Insurance Trust, Daniel J. 15 Campbell, and Allen Hyman shall appear, in person or by telephone, 16 for a scheduling conference to be held on April 20, 2009 at 17 10:30 a.m. At that time, among other things, the court will 18 establish a date for a hearing on this Motion and Order to Show 19 Cause. 20 21 22 23 24 25 26 27 Copies to all counsel of record; Daniel Campbell, III; Allen Hyman; and Denise M. O'Rourke 28 - 17 DATED this 30th day of March, 2009.

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