Tara Productions, Inc. v. Hollywood Gadgets, Inc. et al

Filing 205

ORDER granting 200 Judgment Creditor's Motion to Commence Proceedings Supplementary and to Implead Third Parties. Please see Order for details. Signed by Ch. Magistrate Judge Barry S. Seltzer on 4/19/2012. (kas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-61436-CIV-COHN/SELTZER
TARA PRODUCTIONS, INC.,
Plaintiff,
vs.

HOLLYWOOD GADGETS, INC., et al.,
Defendants.
__________________________________/
ORDER ON MOTION TO COMMENCE PROCEEDINGS SUPPLEMENTARY
AND TO IMPLEAD THIRD PARTIES
THIS CAUSE is before the Court on Judgment Creditor’s Motion to Commence
Proceedings and to Implead Third Parties (DE 200)1 and the Court being sufficiently
advised, it is hereby ORDERED that the Motion is GRANTED in part and DENIED in part
for the reasons set forth below.
On December 14, 2010, the District Court entered a Final Default Judgment in favor
of Plaintiff Tara Productions, Inc. (hereinafter, “Judgment Creditor”) against Defendants
Juda Levin and Hollywood Gadgets, Inc. (DE 147) in the amount of $438,813.91, plus
$86,721.31 in accrued interest and future interest on unpaid royalties. The District Court
additionally awarded $35,556 in attorney’s fees and $4,725.50 in costs. In a deposition in
aid of execution, Defendant Levin testified that he does not have sufficient assets to satisfy
the judgment.
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It appears that Judgment Creditor served a copy of the instant Motion on
Defendants Hollywood Gadgets, Inc. and Juda Levin. Defendants have not responded to
the Motion, and the time for doing so has passed.

Judgment Creditor now moves the Court to commence Proceedings Supplementary
(DE 147) pursuant to Federal Rule of Civil Procedure 69 and Fla. Stat. § 56.29. It
additonally requests that the Court implead Lakewood Cheder School (a New Jersey nonprofit corporation) (“Lakewood”) and Services for Children with Hidden Intelligence (a New
Jersey non-profit corporation) (“SCHI”) and require them to be examined concerning their
relationship with Defendants and any (alleged) fraudulent transfers of property to them by
Defendants.2 Additionally, Judgment Creditor requests an award of its attorney’s fees and
costs.

According to Judgment Creditor, Defendants transferred $2,894,100.52 to

Lakewood from April 15, 2008, through June 9, 2008, and they transferred $582,017 to
SCHI from October 14, 2008, through February 5, 2009. Judgment Creditor alleges that
these transfers were made by Defendants to delay, hinder and/or defraud it (Judgment
Creditor). See Fla. Stat. § 56.29(6); Fla. Stat. § 726.110(1) and (2).
Rule 69(a) provides that procedures in post-judgment proceedings supplementary
“must accord with the procedure of the state where the court is located,” to the extent not
preempted by federal law. See Fed. R. Civ. P. 69(a); Allied Indus. Int’l Inc. v. AGFAGavaert, Inc., 688 F. Supp. 1516, 1517 (S.D. Fla. 1988) (Atkins, J.). Proceedings
supplementary are a procedural mechanism that provides a judgment creditor with means

2

Although not specifically requested in the instant Motion, Judgment Creditor’s
proposed order suggests that this Court appoint a United States Magistrate Judge for the
District of New Jersey to conduct a § 56.29 examination of the impleaded parties’ corporate
representatives. Although § 56.29 authorizes a court to require “the defendant in execution
[i.e, the judgment debtor] to appear before it or a general or special master . . . concerning
his property,” it does not provide for such examination of an impleaded party.” Fla. Stat.
56.29(2). The Court, therefore, declines to appoint a Magistrate Judge to examine the
impleaded parties. The Court, however, will permit Judgment Credit to conduct discovery
herein.
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to investigate assets of the judgment debtor that might be used to satisfy a judgment and
are governed by Fla. Stat. § 56.29. Office Building, LLC v. Castlerock Security, Inc., No.
10-61582-Civ, 2011 WL 1674963, at *2 (S.D. Fla. May 31, 2011) (Leonard, J.). Under
§ 56.29, a judgment creditor may implead third parties to expeditiously discover a judgment
debtor’s assets and subject them to “a speedy and direct proceeding in the same court in
which the judgment was recovered.” Id. (quoting ABM Fin. Servs., Inc. v. Express
Consolidation, Inc., No. 07-60294, 2011 WL 915669, at *1 (S.D. Fla. Mar. 16, 2011)
(Torres, M.J.) (quoting Regent Bank v. Woodcock, 636 So.2d 885, 886 (Fla. 4th DCA
1994)) (emphasis omitted)). The court may “order any property of the judgment debtor,
not exempt from execution, in the hands of any person or due to the judgment debtor to
be applied toward the satisfaction of the judgment debt.” Fla. Stat. § 56.29(5). A judgment
creditor is not required to make a prima facie showing that the third party holds assets
subject to a judgment prior to impleading that party. Bleidt v. Lobato, 664 So.2d 1074,
1075 (Fla. 5th DCA 1995).
“Impleading third parties in a proceeding supplementary to execution is necessary
to acquire jurisdiction over them.” ABM Fin. Servs., 2011 WL 915669, at *2. “Such
impleading does not in itself establish liability on the part of the impleaded third parties.
Rather, it gives them an opportunity to raise their defenses and protect their interests
consistent with the requirements of due process.” Id.; see also Ortiz v. Santuli Corp., No.
08-20218-CIV, 2010 WL 2926517, at *1 (S.D. Fla. July 23, 2010) (Simonton, M.J.)
(“Impleading those persons whose interests may be affected by the Court’s rulings is
necessary both to acquire jurisdiction over them and to afford due process.”) (quoting
Mission Bay Campland, Inc. v. Summer Fin. Corp., 71 F.R.D. 432, 434 (M.D. Fla. 1976)).
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Once impleaded, the third-party “must appear before the Court and show cause why the
contested property should not be applied toward satisfaction of the judgment creditor’s
judgment.” Castlerock Security, 2011 WL 1674963, at *3.
To commence proceedings supplementary under § 56.29, the judgment creditor
must file an affidavit, in which the affiant “must attest that he or she holds an unsatisfied
judgment . . . , identify the issuing court and case number, state the unsatisfied amount of
the judgment, and confirm that the execution is valid and outstanding.” B & I Contractors,
Inc. v. Mel Re Constr. Mgmt., 66 So.3d 1035, 1037 (Fla. 2d DCA 2011). By filing such an
affidavit, the judgment creditor “is entitled to these proceedings supplementary to
execution.” Id. (quoting § 56.29(1)).
Here, Judgment Creditor (through his attorney Joshua B. Spector, Esq.) has
established that “the Florida Secretary of State holds a docketed Judgment dated
December 14, 2010, in favor of judgment-creditor and against judgment-debtors Juda
Levin (“Levin”) and Hollywood Gadgets, Inc. (“Gadgets”) in the amount of $479,105.41,
plus post-judgment interest of 0.29% per annum, which remains valid and outstanding.”
See Joshua B. Spector Aff. ¶ 3 (DE 201-1). Judgment Creditor has also identified the
court issuing the judgment and the parties to be impleaded.

No other showing is

necessary to institute proceedings supplementary and to implead third parties. Ortiz, 2010
WL 2926517, at *2. Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
1.

Judgment Creditor’s Motion to Commence Proceedings and to Implead Third

Parties (DE 200) is GRANTED. Proceedings supplementary are hereby commenced in
this action pursuant to Federal Rule of Civil Procedure 69 and Fla. Stat. § 56.29;
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2.

Lakewood Cheder School and Services for Children with Hidden Intelligence

are impleaded into this action;
3.

Judgment Creditor shall serve on each impleaded party a copy of its Motion

to Commence Proceedings and to Implead Third Parties (DE 200) with attached Affidavit
(DE 201-1), and a copy of this Order, in accordance with Federal Rule of Civil Procedure
When service has been made, Judgment Creditor shall file in the record an affidavit of
service;
4.

Within twenty-one (21) days after being served, each impleaded party shall

file and serve on all parties a responsive pleading setting forth its defenses;
5.

Judgment Creditor shall be permitted to conduct discovery, including written

discovery and depositions, concerning any transfers of property to an impleaded party by
Defendants;
6.

Within ten (10) days after the impleaded defendants have been served,

Judgment Creditor shall file a status report, informing the Court how much time it needs
for discovery and providing an estimated time that this matter will be ready for an
evidentiary hearing at which the impleaded parties will have an opportunity to show cause
why the transferred assets should not be applied toward satisfaction of the judgment
herein; and
7.

Plaintiff’s request for attorney’s fees and costs is DENIED without prejudice

to raise at a later time, if appropriate.
DONE AND ORDERED in Fort Lauderdale, Florida, this 19th day of April 2012.

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Copies to:
All counsel of record
Hollywood Gadgets
Juda Levin
341 11th Street
Lakewood, NJ 08701

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