Piccolo v. Piccolo

Filing 64

ORDER denying 61 Motion to Compel. Signed by Judge Beth Bloom on 8/11/2016. (yha)

Download PDF
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 15-cv-62463-BLOOM/Valle FELIX PICCOLO, JR., as personal representative of Felix Angelo Piccolo, Plaintiff, v. FRANK ANTHONY PICCOLO, et al., Defendants. ___________________________________________/ ORDER ON MOTION TO COMPEL THIS CAUSE is before the Court upon Plaintiff/Counter Defendant Felix Piccolo Jr.’s (“Plaintiff”) Motion to Compel Defendants to Disclose Location of Assets, ECF No. [61] (the “Motion”). The Court has reviewed the Motion, all supporting and opposing filings and attachments, the record in this case, and is otherwise fully advised in the premises. For the reasons set forth below, the Motion is denied. Plaintiff, who has substituted as a party in this case for his deceased father, has sued his brother and brother’s wife for a variety of torts related to $349,507.00 in gold coins and $50,000 in cash. The instant Motion concerns those assets: Plaintiff wants to know where they are, to have them placed in a secure location, and to make sure that Defendants do not change that location. See ECF No. [61]. Plaintiff asserts that Defendants’ counsel previously stated that he did not oppose an order from this Court freezing the assets and requiring Defendants to provide their own counsel with the assets’ location. Id. at 5. In the Motion, Plaintiff additionally requests that the Court order Defendants to places the coins and cash in a “secure financial institution.” Id. It appears, Case No. 15-cv-62463-BLOOM/Valle however, that Defendants do not agree to any order from this Court, as they oppose the Motion in its entirety. See ECF No. [62]. In support of their positions, the parties have provided the Court with two citations to legal authorities. As the Court noted in December when it denied a sealed motion filed by Plaintiff ex parte, see ECF No. [6], an asset freeze appears inappropriate in this case, as Plaintiff does not seek any equitable relief. See Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 987 (11th Cir. 1995) (“A request for equitable relief invokes the district court’s inherent equitable powers to order preliminary relief, including an asset freeze, in order to assure the availability of permanent relief.”); see also TemPay, Inc. v. Biltres Staffing of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1261 (M.D. Fla. 2013) (“[F]ederal courts have recognized the propriety of asset freezes where . . . a plaintiff seeks equitable relief . . . .”) (citation omitted). Generally, asset freezes are inappropriate where the assets are suspended merely to satisfy a potential monetary judgment. See id. It is Plaintiff’s responsibility to apprise the Court of a legal basis for the relief he seeks. See Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001) (“A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or in the face of contrary authority, forfeits the point. The court will not do his research for him.”) (internal quotations omitted). In Reply, Plaintiff has cited to one case, Wimbledon Fund, SPC (Class TT) v. Graybox, L.L.C., 2015 WL 5822580, at *5 (C.D. Cal. Sept. 29, 2015), aff’d sub nom. Wimbledon Fund, SPC Class TT v. Graybox, LLC, 2016 WL 1554271 (9th Cir. Apr. 18, 2016), and the Court has considered the case. However Wimbledon Fund does not support Plaintiff’s position, as it instead affirmed the general principal articulated by the Supreme Court in Grupo Mexicano de Desarrollo S.A., v. Alliance Bond Fund, Inc., that a district court lacks authority “to issue a 2 Case No. 15-cv-62463-BLOOM/Valle preliminary injunction preventing [a] defendant from transferring assets in which no lien or equitable interest is claimed.” 527 U.S. 308, 310, 333 (1999). The Supreme Court’s holding applies to cases in which only monetary damages are requested. See id. at 324-25. Wimbledon Fund fell under the Ninth Circuit Court of Appeals’ exception to that general rule, holding that “Grupo Mexicano does not prevent a court from issuing a preliminary injunction freezing assets where a fraudulent-transfer claim is asserted.” Wimbledon Fund, SPC (Class TT), 2015 WL 5822580, at *5 (citing In re Focus Media, Inc., 387 F.3d 1077, 1085 (9th Cir. 2004)). In this case, Plaintiff seeks only monetary damages. See ECF No. [39]. Plaintiff does not make any “fraudulent-transfer claims,” nor has he otherwise shown “a likelihood of dissipation of the claimed assets.” See Wimbledon Fund, SPC (Class TT), 2015 WL 5822580, at *5. Accordingly, the Court lacks authority to grant the requested relief. It is therefore ORDERED AND ADJUDGED that the Motion to Compel, ECF No. [61], is DENIED. DONE AND ORDERED in Miami, Florida, this 11th day of August, 2016. _________________________________ BETH BLOOM UNITED STATES DISTRICT JUDGE Copies to: Counsel of Record 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?