Melikhov et al v. Drab et al

Filing 54

ORDERED: The Honorable Mac R. McCoy's Report and Recommendation and Certification of Facts (Doc. 35) is ACCEPTED AND ADOPTED and its findings incorporated herein. Plaintiffs-Judgment Creditors Anthony Melikhov, Melmar Holdings LLC, and U 4G Group LLC's Motion for Contempt and Sanctions Against Nonparties Hana Drabova, Naples Energy LLC, and Czech Energy USA LLC (Doc. 4) is GRANTED. Nonparties Hana Dabrova, Naples Energy LLC, and Czech Energy USA LLC are found in civil contemp t of court for their flagrant failure to comply with this Court's orders. Nonparty Hana Drabova is COMMITTED to the custody of the United States Marshal for a term of thirty (30) days, or until such time as she purges the finding of civil conte mpt. Hana Dabrova may PURGE herself of the contempt by producing the documents requested or otherwise adequately responding to the subpoena requests in compliance with this Court's Orders. If Drabova complies with this Opinion and Order by pro viding adequate responses to the subpoenas in aid of execution, Plaintiffs shall notify the Court immediately so that Drabova's contempt may be purged. A fine of $250 per day is assessed against Nonparties Naples Energy, LLC, and Czech En ergy USA, LLC. The Nonparties are taxed with the reasonable attorney's fees and costs incurred by Plaintiffs in connection with this matter, the amount to be determined and set forth by separate order. Hana Drabova, Naples Energy, LLC and Cz ech Energy U.S.A., LLC, and each of them, and their respective agents, principals, partners, holding companies, parent companies, shareholders, members, attorneys, servants, employees, representatives, and all those persons and/or entities acting und er, in concert, with or for them, are enjoined and restrained until further Order of this Court from transferring, conveying, hypothecating, encumbering or selling the real property commonly known as 7417 Treeline Drive, Naples, Florida 34119 Parcel ID Number: 64626001102. The Nonparties' counsel shall forthwith provide the Nonparties with a copy of this Opinion and Order and file a written Notice with the Court that they have done so. Signed by Judge Sheri Polster Chappell on 9/24/2019. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTHONY MELIKHOV, MELMAR
HOLDINGS, LLC and U4G GROUP,
LLC,
Plaintiffs,
v.

Case No.: 2:19-cv-248-FtM-38MRM

LADISLAV DRAB, CE GROUP,
CESKA ENERGIE, CESKA
PLYNARESKA, NAPLES ENERGY,
LLC, HANA DRABOVA and CZECH
ENERGY USA, LLC,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on the Honorable Mac R. McCoy’s Report and
Recommendation and Certification of Facts (Doc. 35), certifying facts in support of his
recommendation that Plaintiffs-Judgment Creditors Anthony Melikhov, Melmar Holdings
LLC, and U4G Group LLC’s (hereinafter “Plaintiffs” or “Judgment Creditors”) Motion for
Contempt and Sanctions Against Nonparties Hana Drabova, Naples Energy LLC, and
Czech Energy USA LLC (hereinafter “Nonparties”) (Doc. 4) be granted. No objections
have been filed and the time to do so has expired. Nonetheless, in accordance with 28

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites.
These hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked
documents in CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this
Court does not endorse, recommend, approve, or guarantee any third parties or the services or
products they provide on their websites. Likewise, the Court has no agreements with any of these
third parties or their websites. The Court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to
some other site does not affect the opinion of the Court.

U.S.C. § 636(e)(6)(B)(iii), the Court held an evidentiary hearing on September 23, 2019,
for the Nonparties to show cause why they should not be adjudged in contempt and/or
sanctioned by reason of the facts so certified. (Doc. 37). Counsel for the Judgment
Creditors and the Nonparties appeared at the hearing.
On August 2, 2019, the Court issued its Order setting the show cause hearing.
(Doc. 37). In its Order, the Court ordered Nonparty Hana Dabrova to appear in person at
the hearing and warned her that her failure to appear at the show cause hearing could
result in the issuance of a bench warrant for her arrest. However, Dabrova failed to
appear even though her counsel2 stated at the hearing that she was aware of the
proceedings. Her counsel stated that she did not appear because she was denied a visa
to travel to the United States from the Czech Republic on September 19, 2019 (only four
days before the hearing). What makes Dabrova’s late attempt to travel incredible is that
the Order setting the hearing (and warning her that her failure to appear could result in
her arrest) was issued on August 2, 2019, and the show cause hearing was originally set
for September 6, but was rescheduled to the 23rd. Thus, Dabrova had more than enough
time to make travel arrangements to appear in person at the hearing if she was making
any credible attempt to do so, and she was provided more than adequate notice that she
could be arrested if she failed to appear. However, she failed to heed the Court’s
warnings.
The Court having carefully reviewed and considered the parties filings, having
heard oral argument from counsel, and otherwise receiving evidence at the hearing, finds
that the Motion for Contempt and Sanctions is granted for the reasons set forth below.

2

The Nonparties’ counsel has moved to withdraw due to irreconcilable differences. (Doc. 51).

2

BACKGROUND
The Court accepts and adopts Judge McCoy’s Certification of Facts (Doc. 35, Sec.
I). This action involves the registration of a foreign judgment, and the Judgment Creditors
seek compliance with document subpoenas3 issued to the Nonparties in aid of execution
of the judgment. The underlying judgment in a case involving a business deal gone bad
was entered in the Northern District of Illinois for $36,711,232.88 (plus interest) against
Ladislav Drab, CE Group, Ceska Energia A.A., and Ceska Plynareska A.S. on January
26, 2018. (Doc. 1).

Nonparty Hana Drabova is the wife of Ladislav Drab and the

managing member of Naples Energy (Drab was the managing member of Naples Energy
at the time of the transactions at issue in the underlying litigation; however, management
was transferred to Drabova).4 Drab has not appeared in this matter.
In aid of execution on its foreign judgment, the Judgment Creditors request that
the Court do four things: (1) find the Nonparties in contempt for their failure to comply with
the document subpoenas; (2) compel the Nonparties to produce the requested
documents; (3) impose sanctions against the Nonparties for their pro rata share of the
Judgment Creditors’ attorneys’ fees and costs incurred in bringing the Motion; and (4)
warn the Nonparties that failure to comply with the order may result in additional

3

There is no dispute that the Subpoenas in Aid of Execution (Doc. 4-3; 4-4) were lawfully issued
in November 2018, and the Nonparties have otherwise not challenged the subpoenas.
4

A point of clarification as to the parties involved would be helpful. The parties against whom the
underlying judgment was entered (Ladislav Drab, CE Group, Ceska Energia A.A., and Ceska
Plynareska A.S.) are referred to as the “Judgment Debtors.” The parties at issue here (Hana
Drabova, Naples Energy, LLC, and Czech Energy USA, LLC) are referred to as “Nonparties”
because they were not parties to the underlying case.

3

sanctions, “including civil fines, attorneys’ fees and costs, evidentiary sanctions, and other
appropriate remedies available to the Court to compel compliance.” (Doc. 4).
After two Orders to Show Cause issued by Judge McCoy and two hearings, the
Nonparties still failed to comply with the subpoenas and offered insufficient responses to
the Motion for Contempt (Doc. 4). In his two Orders to Show Cause (Docs. 6, 16), Judge
McCoy specifically ordered the Nonparties to comply with the subpoenas. Judge McCoy
warned the Nonparties that any failure to comply with his Orders could result in a finding
of contempt and sanctions, including the issuance of a bench warrant to ensure
compliance. Notably, nonparty Hana Drabova was warned by Judge McCoy that her
failure to appear in person at his show cause hearing would not be excused for any reason
short of a medical emergency. Still, Drabova failed to show at either hearing before Judge
McCoy with no excusable explanation provided by her counsel other than she was in the
Czech Republic and could not secure a flight.
Following the two show cause hearings, Judge McCoy advised the parties that he
would take the matter under advisement and would consider a further proceeding
whereby Nonparty Drabova and Defendant Ladislav Drab would be required to explain
under oath what steps they had taken to identify responsive documents in response to
the subpoenas and why they maintained that there were no further documents despite
the fact that on the face of the Nonparties’ responses, objections, and affidavits it
appeared that there were. (Doc. 35 at 11).
Notably, Judge McCoy stated that it remained unclear whether the Nonparties
have produced all documents within their possession, custody, or control, but it would
appear based on the evidence before him that there may be other responsive documents

4

that have not been produced. (Doc. 35 at 13 (citing Doc. 32 at 4-5)). The evidence
presented by the Judgment Creditors is at Document 32, wherein the creditors noted that
their search of publicly-available documents has revealed that Naples Energy holds title
to Florida real property where Drab and Drabova reside and Naples Energy holds title to
a condominium that it recently sold with the sales proceeds transferred to Drabova.
However, no documents reflecting the transfer of the sale proceeds to Drabova on behalf
of Naples Energy were produced even though they were responsive to the subpoena
requests. The evidence at Doc. 32 seriously calls into question the veracity of the
Nonparties’ affidavits stating that they were aware of no additional documents that were
responsive.

(Doc. 31-1 at 1; Doc. 31-2 at 1-2; Doc. 31-3 at 1-2).

Therefore, the

Judgement Creditors became rightfully concerned that the Nonparties have been
transferring funds or shifting assets in an effort to frustrate their efforts to collect on the
underlying foreign judgment.
Counsel for the Nonparties stated at the second show cause hearing that based
upon the evidence provided in Doc. 32 it would appear that the Nonparties’ responses
were incomplete, but he had not had the opportunity to speak with Drabova about the
evidence provided in Doc. 32, but that he intended to do so.5 In any event, Judge McCoy
indicated that he was not inclined to give the Nonparties’ counsel additional time to
question his clients regarding the existence of more documents because it was unlikely
to result in satisfactory compliance. (Doc. 35 at 11). Judge McCoy held no further
proceedings and lacking the authority to resolve the contempt issue, see 28 U.S.C. §

The Court did inquire as to whether the Nonparties’ counsel had spoken to Dabrova about the
information contained in Doc. 32. He stated that he had, and he had produced a few more
documents to the Judgment Creditors. The Judgment Creditors stated that even so, the
Nonparties still have not fully complied with the subpoenas.
5

5

636(e)(6), he certified facts to the District Court as to the proceedings before him and
recommends that the Court grant the request for contempt because nothing short of
contempt would ensure the Nonparties’ compliance. (Doc. 35).
The undersigned held a show cause hearing to allow Drabova to explain why she
should not be sanctioned and/or held in civil contempt. Drabova was directed to appear
in person and bring any documents or other evidence that complies with the subpoenas
and be prepared to testify under oath as to same, but she failed to appear. (Doc. 37).
Plaintiffs submitted 71 exhibits (Docs. 44, 46) at the hearing that were admitted by the
Court without objection. Plaintiffs’ counsel stated at the hearing that the exhibits are
further evidence that the Nonparties are shifting assets in an effort to thwart any collection
efforts and that the Nonparties have documents responsive to the subpoenas that they
are not producing. Although provided the opportunity to do so, counsel for the Nonparties
presented no evidence to the contrary.
STANDARD
A district judge “may accept, reject, or modify in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district
judge “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. And “[t]he judge
may also receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
Pursuant to 28 U.S.C. § 636(e)(6), if a magistrate judge determines that an act
constitutes civil contempt, he shall:
Forthwith certify the facts to a district judge and may serve or cause to be
served, upon any person whose behavior is brought into question under this

6

paragraph, an order requiring such person to appear before a district judge
upon a day certain to show cause why that person should not be adjudged
in contempt by reason of the facts so certified. The district judge shall
thereupon hear evidence as to the act or conduct complained of and, if it is
such as to warrant punishment, punish such person in the same manner
and to the same extent as for a contempt committed before a district judge.
Federal Rule of Civil Procedure 45(g) provides that “[t]he court for the district where
compliance [with a subpoena] is required . . . may hold in contempt a person who, having
been served, fails without adequate excuse to obey the subpoena or an order related to
it.” Moreover, a district court has the inherent power and authority to punish a party for
disobeying or resisting its orders. See 18 U.S.C. § 401(3).
In a civil contempt proceeding, the moving party must present "clear and
convincing" evidence that the court's order was violated. Howard Johnson Co., Inc. v.
Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990) (citations omitted). “’This clear and
convincing proof must also demonstrate that 1) the allegedly violated order was valid and
lawful; 2) the order was clear, definite and unambiguous; and 3) the alleged violator had
the ability to comply with the order.’” McGregor v. Chierico, 206 F.3d 1378, 1383 (11th
Cir. 2000) (citation omitted).
“An award of damages in a civil contempt proceeding requires proof of both the
fact of injury to the aggrieved party and the amount of damages the aggrieved party has
suffered.” McGregor, 206 F.3d at 1386-87. Because no objections have been filed, I
recommend that the Court accept and adopt the certification of facts set forth in Section I
of the Report and Recommendation (Doc. 35), which support that Plaintiffs have
presented clear and convincing evidence that the Court’s orders were violated and
Plaintiffs have suffered injury.

7

“[O]nce the moving party makes [its] prima facie showing that the court order was
violated, the burden of production shifts to the alleged contemnor to show a ‘present
inability to comply that goes beyond a mere assertion of inability. . . .’” Howard Johnson,
892 F.2d at 1516 (citations omitted). “The focus of a court’s inquiry in civil contempt
proceedings is not on the subjective beliefs or intent of the alleged contemnors in
complying with the court order, but whether in fact their conduct complied with the order
at issue.” Smith Barney, 969 F. Supp. at 722-23 (citations omitted). “Generally, conduct
that evinces substantial but not complete compliance with a court's order may be excused
in a contempt proceeding if it was made as part of a good-faith effort at compliance." Id.
at 723 (citation omitted). A “person who attempts with reasonable diligence to comply
with a court order should not be held in contempt.” Newman v. Graddick, 740 F.2d 1513,
1525 (11th Cir. 1984). In addition, the question that must be resolved by the Court is
whether the Nonparties have the present ability to pay, in whole or in part, the amount
owed. See Piambino v. Bestline Prods., Inc., 645 F. Supp. 1210, 1214 (S.D. Fla. 1986)
(“Moreover, we think it clear that a person subject to court order must comply to the fullest
extent possible, regardless of whether such efforts result in compliance in whole or in
part.”).
If a district court finds a party in contempt, it has broad discretion in fashioning a
contempt sanction "to ensure compliance, as long as the sanctions are not greater than
necessary." Smith Barney, 969 F. Supp. at 722 (citations omitted). "Such options include
a coercive daily fine, a compensatory fine, attorney's fees, expenses to the aggrieved
party, and coercive incarceration." Id. at 723 n.6. Generally, civil contempt sanctions
include a fine and/or confinement, levied against the party held in contempt. See In re

8

Dinnan, 625 F.2d 1146, 1149 (11th Cir.1980) (authorizing a coercive, non-punitive fine
payable to the clerk of the court as an appropriate sanction for civil contempt); and 28
U.S.C. § 1826 (authorizing the confinement of a recalcitrant witness for the failure to obey
a subpoena).
DISCUSSION
After examining the file independently, and upon considering Judge McCoy’s
findings and recommendations, the Court accepts and adopts the analysis, conclusion,
and recommendations made by Judge McCoy. As announced at the hearing, the Court
finds that the Judgment Creditors have shown by clear and convincing evidence that the
Nonparties have continually violated these Court’s orders to comply with the subpoenas
and appear before the Court. Therefore, the burden shifted to the Nonparties to show
that they are unable to comply. In this regard, nothing has been offered by the Nonparties.
Although the Nonparties have produced some documents, they have not satisfied their
burden of production given the evidence that Plaintiffs have produced showing that there
are assets and information responsive to the subpoenas that have not been provided.
The Court agrees with Judge McCoy and finds that the Nonparties have not made
reasonable efforts to comply with this Court’s orders and are intentionally failing to
respond to the subpoenas. Therefore, the Court finds the Nonparties in contempt.
In fashioning appropriate sanctions, the Eleventh Circuit has made clear that a
balance of interest must be struck.
The court has the power to impose coercive and compensatory sanctions.
In re Chase and Sanborn Corp. v. Nordberg, 872 F.2d 397 (11th Cir. 1989).
“‘The measure of the court's power in civil contempt proceedings is
determined by the requirements of full remedial relief. This may entail the
doing of a variety of acts....'” EEOC v. Guardian Pools, Inc., 828 F.2d 1507,
1515 (11th Cir. 1987) (quoting United States v. United Mine Workers, 330

9

U.S. 258, 304, 67 S. Ct. 677, 701, 91 L. Ed. 884 (1947)). When fashioning
a sanction to secure compliance, a district court should consider “‘the
character and magnitude of the harm threatened by continued contumacy
and the probable effectiveness of any suggested sanction in bringing about
the result desired.’” EEOC, 828 F.2d at 1515 (quoting United Mine Workers,
330 U.S. at 304, 67 S. Ct. at 701).
Sanctions may be imposed to coerce the contemnor to comply with the
court's order, but may not be so excessive as to be punitive in nature.
Matter of Trinity, 876 F.2d at 1493. The court’s discretion, however, “must
stay within the bounds of due process.” Mercer v. Mitchell, 908 F.2d 763,
766 (11th Cir. 1990). Due process requires that the court inform the alleged
contemnor of the contemptuous conduct, and provide a hearing in which
the alleged contemnor may explain why the court should not make a
contempt finding. Mercer, 908 F.2d at 767. Although the district court has
the authority to impose sanctions designed to ensure compliance, the
sanctions cannot be any greater than necessary to ensure such
compliance. Mercer, 908 F.2d at 768 n. 9.
The district court had numerous options, among them: a coercive daily fine,
a compensatory fine, attorney’s fees and expenses to the Receiver, and
coercive incarceration. Matter of Trinity, 876 F.2d at 1494; EEOC, 828 F.2d
at 1516; Sizzler Family Steak Houses v. Western Sizzlin Steak House, 793
F.2d 1529, 1535-36 (11th Cir.1986); Shillitani, 384 U.S. at 371, 86 S.Ct. at
1536.
Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1304 (11th Cir. 1991).
Given Dabrova’s repeated recalcitrant conduct, the Court finds that it is appropriate
to issue a bench warrant for her arrest to ensure compliance. Ms. Dabrova was given
sufficient notice that this was a possibility, but she still chose to flagrantly disregard this
Court’s orders without explanation. The Court finds that given her track record nothing
short of coercive incarceration will get her attention and convey to her that the Court is
serious about its orders and the consequences of her failure to comply. The Court finds
that she has been afforded due process. Ms. Dabrova has been informed of the potential
consequences of her conduct multiple times and the Court has continually put the ball in

10

Ms. Dabrova’s court so to speak. Unfortunately, she has made choices that have led to
this result.
The Court further agrees with Judge McCoy’s recommendation that a $250 per
day fine be entered against Naples Energy, LLC and Czech Energy USA, LLC. The Court
also grants Plaintiffs’ request for attorneys’ fees and costs, but as stated at the hearing,
will reserve on the amount pending a review of the submissions filed by Plaintiffs’ counsel
post-hearing (Doc. 52).
Finally, based on the evidence presented by Plaintiffs’ counsel at the hearing (with
no objection), the Court finds that Plaintiffs have shown that the Nonparties have made
efforts to transfer funds or shift assets to frustrate Plaintiffs’ efforts to collection the
underlying judgment. (Docs. 32, 44). In particular, Plaintiffs’ counsel stated that the only
significant asset that the Nonparties have in this District is a property at 7417 Treeline
Drive, Naples, Florida, 34119. Plaintiffs are concerned that the Nonparties will make
efforts to thwart Plaintiffs’ ability to seize the property in order to satisfy the underlying
judgment.6 Therefore, Plaintiffs plan to file a Motion that the Nonparties be considered
Judgment-Debtors so that the property may be seized. During the pendency of the
Court’s consideration of that issue, the Court orders that the property located at 7417
Treeline Drive, Naples, Florida 34119 may not be transferred, sold, or otherwise
encumbered as set forth in greater detail below.

6

Indeed, the Nonparties already transferred another property after the underlying judgment was
entered. Naples Energy held title to a condominium that it recently sold (and which sale Drab
signed documents for) and the sale proceeds were transferred to Dabrova – yet not a single
document reflecting the transfer of the sale proceeds to Dabrova on behalf of Naples Energy was
produced. (Doc. 32).

11

Accordingly, it is now
ORDERED:
(1)

The Honorable Mac R. McCoy’s Report and Recommendation and

Certification of Facts (Doc. 35) is ACCEPTED AND ADOPTED and its findings
incorporated herein.
(2)

Plaintiffs-Judgment Creditors Anthony Melikhov, Melmar Holdings LLC, and

U4G Group LLC’s Motion for Contempt and Sanctions Against Nonparties Hana Drabova,
Naples Energy LLC, and Czech Energy USA LLC (Doc. 4) is GRANTED.
(3)

Nonparties Hana Dabrova, Naples Energy LLC, and Czech Energy USA

LLC are found in civil contempt of court for their flagrant failure to comply with this
Court’s orders.
(4)

Nonparty Hana Drabova is COMMITTED to the custody of the United States

Marshal for a term of thirty (30) days, or until such time as she purges the finding of
civil contempt. Hana Dabrova may PURGE herself of the contempt by producing the
documents requested or otherwise adequately responding to the subpoena requests in
compliance with this Court’s Orders. If Drabova complies with this Opinion and Order by
providing adequate responses to the subpoenas in aid of execution, Plaintiffs shall notify
the Court immediately so that Drabova’s contempt may be purged.
(5)

A fine of $250 per day is assessed against Nonparties Naples Energy, LLC,

and Czech Energy USA, LLC.
(6)

The Nonparties are taxed with the reasonable attorney’s fees and costs

incurred by Plaintiffs in connection with this matter, the amount to be determined and set
forth by separate order.

12

(7)

Hana Drabova, Naples Energy, LLC and Czech Energy U.S.A., LLC, and

each of them, and their respective agents, principals, partners, holding companies, parent
companies, shareholders, members, attorneys, servants, employees, representatives,
and all those persons and/or entities acting under, in concert, with or for them, are
enjoined and restrained until further Order of this Court from transferring, conveying,
hypothecating, encumbering or selling the real property commonly known as 7417
Treeline Drive, Naples, Florida 34119 and legally described as follows:
Real property located in Collier County, State of Florida:
Lot 5, Olde Cypress, Tract 12, a subdivision according to the plat thereof as
recorded in Plat Book 37, Pages 91 and 92, of the Public Records of Collier
County, Florida.
Parcel ID Number: 64626001102
(8)

The Nonparties’ counsel shall forthwith provide the Nonparties with a copy

of this Opinion and Order and file a written Notice with the Court that they have done so.
DONE and ORDERED in Fort Myers, Florida this 24th day of September, 2019.

Copies:
All Parties of Record
U.S. Marshal

13