Cadena et al v. A-E Contracting LLC et al
Filing
188
RECOMMENDED RULING granting 187 Motion amend recommended ruling, granting 173 , denying 130 , denying 134 , denying 150 , denying 131 , denying 183 . Signed by Judge Holly B. Fitzsimmons on 7/7/16. (Gould, K.) Modified event type on 7/7/2016 (Gould, K.).
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDWIN CADENA, FERNANDO
CASANO, RODOLFO RIVERA,
LUIS ALBERTO FLORES,
and ROMAN AGUIRE,
Plaintiffs,
v.
:
:
:
:
:
:
:
A-E CONTRACTING, LLC & AKBAR :
ETEMADFAR,
:
Defendants.
:
................................................................:
3:08cv574 (WWE)
AMENDED RECOMMENDED RULING ON ACCOUNTING, CONTEMPT SANCTIONS
AND PENDING MOTIONS1
Plaintiffs are five laborers who brought this Fair Labor Standards Act action
against the defendants Akbar Etemadfar and the company of which he is sole principal
and owner, A-E Contracting, LLC. A default judgment in the amount of $26,938.53 was
entered against the defendants on September 22, 2009 [Doc. 31]. Due to subsequent
awards of additional attorney’s fees and post judgment interest, the judgment amount
increased to $43,941.48 [Doc. 110].
In a ruling adopted by this Court on December 11, 2015 [Docs. 160 & 165], the
Court held that defendant Etemadfar had acted in contempt of this Court’s authority.
On December 15, 2015, the Court convened a hearing to determine the amount
outstanding on the judgment, the amount of reasonable fees owed to the Receiver, the
amount of reasonable attorney’s fees incurred by plaintiffs’ counsel in monitoring and
1
The court amends its recommended ruling to update the amount owed to the
receiver and to correct typographical errors.
1
enforcing the Court’s Order, and an appropriate sanction to compensate for the
damage caused by defendant Etemadfar’s contempt resulting from his continual noncompliance with this Court’s orders. Subsequent to that hearing, plaintiffs filed a motion
for entry of an award of attorney’s fees and costs and receiver fees [Doc. 173].
Defendant Etemadfar has filed a motion to dismiss the Receiver [Doc. 130], a
motion to order the Receiver to pay taxes, water and garbage [Doc. 131], a motion to
release the liens on his properties [Doc. 134], a motion to terminate the case and
refund the excess money [Doc. 150], and a motion for payment [Doc. 183]. In his
opposition to the motion for award of attorney’s fees and costs and receiver fees,
defendant Etemadfar has requested a hearing to allow further inquiry into the
accounting of the rents submitted at the December 15 hearing. Upon review, the Court
DENIES the request for the hearing and makes the following findings.
BACKGROUND
Due to difficulty collecting the judgment, this Court appointed a receiver to collect
rents from defendants’ properties and to manage the rental properties. This Court has
found defendant Etemadfar in contempt for defying this Court’s orders barring him from
interfering with the duties of the receiver, for contacting and harassing the tenants, and
for entering the property.
On August 25, 2015 [Doc. 127], this Court unequivocally barred defendant
Etemadfar from involvement with 4 France Street as follows:
Neither defendant Akbar (a/kla "Alex") Etemadfar, nor his agents, nor any
employee or agent of defendant A-E Contracting, LLC, shall have any
communication with any of the tenants, or with the family of or visitors to
any of the tenants at 4 France Street, Norwalk. It is further ordered that
neither defendant Akbar (a/kla "Alex") Etemadfar, nor his agents, nor any
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employee or agent of defendant A-E Contracting, LLC, shall take any
action that interferes in any fashion with Goodman's management of the
property, his communications with the tenants, or his collection of rents on
the property. Neither defendant Akbar (a/kla "Alex") Etemadfar, nor his
agents, nor any employee or agent of defendant A-E Contracting, LLC,
shall have the authority to solicit applications for tenants, enter into
leases, or collect any monies from applicants for tenancy or from tenants,
or from the Norwalk Housing Authority. In the event that defendant Akbar
(a/kla "Alex") Etemadfar, or his agents, or any employee or agent of
defendant A-E Contracting, LLC, are approached by any person or
organization, including but not limited to the Norwalk Housing Authority,
regarding rental units at 4 France Street, Norwalk, he or they are to direct
any and all such inquiries to Goodman as the Court appointed property
manager.
The Court afforded defendant Etemadfar seven calendar days to remove his personal
or business property from the garage and parking area.
On October 2, 2015, plaintiffs’ attorney sought a finding of contempt due to
Etemadfar’s commencement of eviction proceedings against a tenant at the 4 France
Street property. On November 5, 2015, this Court convened a hearing to determine
whether defendant Etemadfar should be held in contempt for violating this Court’s
order. At the hearing, defendant Etemadfar admitted that he continually maintained
access to the security cameras at the 4 France Street building; that he caused agents
to have contact with tenants; and that he commenced eviction proceedings against a
tenant in the Housing Session of Superior Court. At the hearing, plaintiffs’ counsel
pointed out that not all of the tenants at 4 France Street had complied with this
Court’s order by paying their rent to the Receiver. Consequently, the Court ordered
defendant to provide plaintiffs’ counsel with all leases and a list of all tenants who
should have been paying rent to the receiver for the building known as 4 France
Street by Friday, November 20, 2015.
3
In its recommended ruling dated November 20, 2015 [Doc. 160], the Court
made a finding of contempt based on Etemadfar’s admission that he continually
maintained access to the security cameras at the 4 France Street building; that he
caused agents to have contact with tenants; and that he commenced eviction
proceedings against a tenant in the Housing Session of Superior Court. The Court
adopted the recommended ruling on December 11, 2015 [Doc. 165].
Due to defendant Etemadfar’s failure to provide tenant information as ordered,
the Court issued another order dated November 30, 2015, instructing defendant
Etemadfar to provide lease documents and a list of the tenants by December 4, 2015
[Doc. 161]. Defendant failed to timely comply with this order. In a telephonic
conference held on December 10, 2015, defendant Etemadfar represented that he
did not know the identities of the tenants and did not possess any leases because his
cousin managed the property.
On December 10, 2015, the Court issued an order instructing defendant to
provide information about the rent paid by each tenant and the identity of the entity or
individual to whom such rent had been paid [Doc. 163]. The Order provided that if
defendant could not provide such information, his counsel should hire a State Marshal
to enter the building and to determine the tenants, their contact information, the
amount of rent paid by each tenant, and the entity or individual to whom the rent had
been paid by each tenant since appointment of the receiver. The Order set forth that
if such information was not provided to plaintiffs’ counsel by 5 PM on Monday,
December 14, 2015, the defendant should produce the individual asserted by
defendant to be his cousin who manages the property to testify at the scheduled
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hearing on December 15, 2015.
At the December 15, 2015 hearing, defendant Etemadfar’s counsel informed
the Court that his client had been taken into custody of Immigration and Customs
Enforcement with an order of deportation pending. Defendant’s counsel represented
that the Court’s prior orders regarding the identities and payment of rents had not
been satisfied. The Court allowed that a private investigator agreed upon by both
plaintiffs’ and defendant’s counsel could be hired to satisfy the December 10, 2015
order.
On December 22, 2015, defendant’s attorney submitted notice of compliance
with the Court’s order dated December 10, 2015. The tenants at units 6A, 6B and 6D
indicated that they had paid their rent to Etemadfar rather than to the Receiver.
On December 29, 2015, the Court issued an order, noting that the tenants in
units 6A, 6B, and 6D at 4 France Street had paid monthly rent to Akbar “Alex”
Etemadfar and/or his agents in violation of the Court's order. The Court ordered the
tenants in these rental units to make all future rent payments to the Receiver.
DISCUSSION
The Court has reviewed the exhibits submitted at the December 15 hearing,
including interim accountings from the Receiver of Rents Norman Goodman relevant
to the defendant Etemadfar’s properties at 22 Lee Street, Stamford, and 4 France
Street, Norwalk, Connecticut, which detailed the amounts received from each tenant
and the amounts paid to maintain the buildings. The Court has also reviewed a
spreadsheet of all amounts collected for the judgment from June 17, 2011, through
December 7, 2015.
5
As of December 15, 2015, the evidence demonstrated that $16,175 was being
held in escrow and that $6,923.58 remained to be collected on the judgment.
The Receiver, Norman Goodman, testified about his difficult dealings with
Etemadfar, who accused him of taking money improperly. Goodman described how
Etemadfar has acted to hamper Goodman’s ability to collect rents from tenants
despite the tenants’ knowledge of this Court’s order requiring payment to the
Receiver. Goodman stated that he knew about certain tax liens on the property but
he had never received the actual tax bill. He testified that he charged .04% for basic
overhead and less than 5% for his receiver fee for this case. He indicated further that
his fees to date were $2,107.2 Since the date of the hearing, the Court has received
an interim accounting from the Receiver, which indicates that his fees are now
$2,733.88.
The Court also questioned Attorney Peter Goselin about his attorney’s fees.
He estimated that he had not been compensated for 30 hours of work, which amount
did not include compensation for the December 15, 2015 hearing. He also stated that
he charged a rate of $375 an hour. After the hearing, Attorney Goselin submitted
records of his attorney fees and costs, which reflect that he worked a total of 32.30
hours from October 9, 2014, through December 15, 2015. The records also
document his incurrence of $25 in costs he incurred in connection with his
2
These fees do not include the costs the receiver has incurred, because the
Court’s order of appointment permits the Receiver to subtract costs from the rents
received.
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representation at the hearings on contempt. Accordingly, Attorney Goselin requests
$12,137.50.
The Court must determine a reasonable hourly rate of pay by considering
factors such as the complexity of the case, an attorney's experience, and fee awards
in similar cases; the Court multiplies that rate by the number of hours “reasonably
required” to perform a task. Andrade v. Kwon, 2012 WL 3059616, at *10 (D. Conn.).
In light of Attorney Goselin’s considerable experience practicing employment law and
the difficulty particular to the collection of this judgment from defendant, the Court
finds that $375 an hour represents a reasonable attorney fee and that 32.30 hours
were reasonably required.
This Court has inherent power to hold a party in civil contempt to enforce
compliance with an order of the court or to compensate for losses or damages. SD
Prot., Inc. v. Del Rio, 587 F. Supp. 2d 429, 433 (E.D.N.Y. 2008). A party may be
found in civil contempt for failure to comply with a court order if (1) the order is clear
and unambiguous; (2) the proof of noncompliance is clear and convincing; and (3) the
contemnor has not diligently attempted to comply in a reasonable manner.
Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369
F.3d 645, 655 (2d Cir. 2004). A willful violation need not be proved. Donovan v.
Sovereign Sec. Ltd., 726 F. 2d 55, 59 (2d Cir. 1984). The standard for contempt is
“rigorous” and requires that the party seeking contempt prove its elements “by clear
and convincing evidence.” Schmitz v. St. Regis Paper Co., 758 F. Supp. 922, 925
(S.D.N.Y.1991). A court enjoys broad discretion in determining the appropriate
sanction, and it should consider the harm and probable effect of alternative sanctions.
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Paramedics Eltromedicina Comercial, Ltda, 369 F.3d at 657; EEOC v. Local 29,
Sheet Metal Workers, 247 F.3d 333, 336 (2d Cir. 2001). The Court may resort to
incarceration as a coercive sanction for civil contempt, providing that “the contemnor
is able to purge the contempt and obtain his release by committing an affirmative act.”
Int’l Union Mine Worker of Am. v. Bagwell, 512 U.S. 821, 828-29 (1994).
In its prior ruling granting plaintiffs’ motion for a finding of contempt dated
November 20, 2015, this Court held that defendant Etemadfar had acted in contempt
of this Court’s order.3 The Court finds as an appropriate sanction the plaintiffs’
reasonable attorney’s fees, which amount to $12,137.50. Since these fees were
incurred due to Etemadfar’s noncompliance, this monetary sanction provides
compensation for the damage caused by defendant Etemadfar’s conduct. The Court
will charge to Etemadfar any additional attorney’s fees that are required should
Etemadfar’s noncompliance cause further legal action.
Defendant Etemadfar’s Pending Motions
The pending motion to dismiss the Receiver, motion to release the liens on his
properties, and a motion to terminate the case and refund the excess money, motion
to order the Receiver to pay taxes, water and garbage and motion for payment are
3
Defendant Etemadfar admitted that he continually maintained access to the
security cameras at the 4 France Street building; that he caused agents to have contact
with tenants; and that he commenced eviction proceedings against a tenant in the
Housing Session of Superior Court. These admissions constitute clear and convincing
evidence that defendant Etemadfar violated this Court’s unambiguous order issued
August 25, 2015, directing defendant that he and his agents (1) were not permitted on
the property; (2) were barred from communicating with tenants at 4 France Street; and
(3) were prohibited from interfering with the receiver’s duties of managing the property,
communicating with tenants and collecting rents at the property.
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DENIED.
The outstanding taxes on the property at 4 France Street became due in 2013
and 2014. As of April 4, 2016, the tax debt amounted to $24,970.75. As reflected by
record and as detailed in this Court’s rulings dated September 22, 2014 and
November 20, 2015, respectively [docs. 110 and 160], the Receiver’s efforts to collect
rents to satisfy the judgment have been hampered and prolonged by defendant’s
interference with the tenants. Accordingly, the Receiver was unable to amass the
sums necessary to pay the taxes. Due to defendant’s sanctionable conduct, the
Receiver was prevented from providing for the payment of the taxes. The Norwalk
tax collector office has stated that partial payment of the tax debt will not be accepted
to prevent the property’s sale to satisfy the tax debt. The Court has received notice
that the property sale is scheduled for July 18, 2016.
The Court will relieve the Receiver of his duties after the sale, with instructions
to apply any money held in escrow to the remainder of the judgment and to the
amounts owed to the Receiver and plaintiffs’ counsel for their services and costs.
CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s motion for attorney
and receiver fees [doc. 173]. The Court finds that $12,137.50 is owed to compensate
plaintiffs’ attorney for fees and costs and should be awarded as a sanction for
Etemadfar’s contempt. The Court finds that following amounts were owing as of
December 15, 2015:
$6,923.58 for the remainder of the judgment; and
$2,733.88 for the Receiver’s fee.
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The Court DENIES defendant’s motion to dismiss the Receiver [doc. #130], motion to
release the liens on his properties [doc. 134], and motion to terminate the case and
refund the excess money [doc. 150]. The Court DENIES defendant’s motion to order
the Receiver to pay taxes, water and garbage [doc. 131] and the motion for payment
[Doc. 183].
This is a Recommended Ruling. See Fed. R. Civ. P. 72(b)(1). Any objections
to this recommended ruling must be filed with the Clerk of the Court within fourteen
(14) days of being served with the order. See Fed. R. Civ. P. 72(b)(2). Failure to
object within fourteen days may preclude appellate review. See 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b); and D. Conn. L. Civ. R. 72.2; Wagner & Wagner, LLP
v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, 596 F.3d 84, 92 (2d Cir.
2010).
Dated this _7th__ day of July, 2016, at Bridgeport, Connecticut.
/s/Holly B. Fitzsimmons
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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