Rissman Hendricks & Oliverio, LLP v. MIV Therapeutics Inc et al

Filing 215

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, it is hereby ORDERED that: 1. An evidentiary hearing will begin on October 15, 2013, at 9:30 a.m., to determine whether MIV Therapeutics, Inc., MIV Scientific Holding s, Ltd., Biosync Scientific PVT, Alan P. Lindsay, and/or Chris Xunan Chen should be held in civil contempt for violating the Preliminary Injunction by their conduct relating to the sale of MIV Therapeutics (India) PVT. Ltd. stock to Purple Medical Solution PVT Ltd. Each of the defendants shall attend the hearing, which will, if necessary, continue on October 16, 17, and 18. 2. If a defendant cannot afford counsel and wishes to request appointment of an attorney, the defendant shall, by Octo ber 3, 2013, file an accurate and complete Financial Affidavit in the form attached hereto as Exhibit C. 3. The court shall attempt to serve the defendants named in paragraph 1 hereinabove. 4. Riemer & Braunstein LLP shall promptly send this Order to the defendants named in paragraph 1 hereinabove, except for Lindsay, with the September 17, 2013 Memorandum and Order Concerning Subpoena and, by October 2, 2013, report on its efforts to have it delivered to each defendant and the results of that effort.(Hohler, Daniel)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RISSMAN HENDRICKS & OLIVERIO,
LLP f.k.a. RISSMAN JOSBE
HENDRICKS & OLIVERIO, LLP
f.k.a. KUDIRKA & JOBSE, LLP,
Plaintiff,

v.
C.A. No.

11-10791-MLW

MIV THERAPEUTICS INC., MIV
SCIENTIFIC HOLDINGS, LTD,
BIOSYNC SCIENTIFIC PVT, ALAN P.
LINDSAY a.k.a ALAN LINDSAY,
PATRICK MCGOWAN, and CHRIS
XUNAN CHEN a.k.a. CHRIS CHEN,
Defendants.
MEMORANDUM AND ORDER CONCERNING CONTEMPT

WOLF, D.J.
This

September 17, 2013
case

Commonwealth
notice

to

was

of

filed

in

the

Massachusetts

defendants
Biosync

MIV

on

Suffolk
April

Superior

PVT,

Scientific

McGowan,

and Chris Xunan Chen,

PVT,

of

2011.

After

giving

6,

Therapeutics,

Holdings

Court

Inc.,

Alan

on April

P.

13,

MIV

Scientific

Lindsay,

2011,

the

Patrick

the Superior

Court issued the Preliminary Injunction that is attached hereto as
Exhibit A.
The defendants,

represented by counsel,

subsequently removed

the case to this United States District Court.

They did not ask to

have the Preliminary Injunction removed or altered.
On

December

6,

2011,

the

court

allowed plaintiff Rissman,

Hendricks, Oliverio LLP' s ("Rissman") motions for default judgments
on

all

counts

except

Counts

15

and

16,

which

see k

permanent

injunctive relief, against defendants MIV Therapeutics,

Inc., MIV

Scientific Holdings, Ltd., Biosync Scientific PVT, and Chris Xunan
Chen (the "Defaulted Defendants")

Default Judgments were entered

on December 6, 2011, and amended as to the amount of the judgment
in December 22, 2011.

1

As Counts 15 and 16 were not resolved, the

court continues to have jurisdiction over the Defaulted Defendants.
In addition, the court denied Lindsay's motion to dismiss for
lack

of

personal

jurisdiction.

jurisdiction over him.
The

Preliminary

Therefore,

the

court

has

2

Inj unction,

among

other

things,

prohibits

defendants from converting or transferring any of their assets,
including stock,

unless the first $480,000 of the proceeds were

provided to counsel for Rissman to hold in escrow pending further
order of the court.
evidence
knowingly

Rissman has recently provided the court with

that

suggests

that

each

and

wilfully

violated

of

the

the

defendants

Preliminary

may

have

Injunction

by

participating in the sale of MIV Therapeutics, Inc. 's stock in MIV
Therapeutics (India) PVT Ltd. to Purple Medical Solutions PVT Ltd.
("Purple Medical").

The evidence suggesting that each defendant

knowingly and wilfully violated the Preliminary Injunction includes

lThe default judgments entered on December 6 and 22, 2011
mistakenly failed to state that judgment was not being entered on
Counts 15 and 16. An amended judgment was entered on September
17, 2013, to correct that error.
2

Ri s s ma n voluntarily dismissed its claims against McGowan.
2

the July 27, 2011 email, attached hereto as Exhibit B, from Brian
Lancelot

of

Purple

Medical

to

Chen,

Lindsay,

counsel Thomas Deutsch, which states, in part:
an

inj unction

against

the

sale

of

shares,

and

defendants'

"The order [J puts

assets

and

involves

affiliates and subsidiaries and would make the sale invalid."
The foregoing presents the question of whether any or all of
the defendants should be held in civil and/or criminal contempt for
violating the Preliminary Injunction.
determine

first

whether

contempt,

without

any defendant

prejudice

to

criminal contempt proceedings.
possible,

The court will proceed to

the

should be

possibility

held
of

in

civil

commencing

As criminal contempt preceding are

defendants are advised that they have the right to an

attorney and, if they demonstrate that they cannot afford to retain
counsel and are otherwise eligible, an attorney may be appointed to
represent them upon request.

In addition, defendants are advised

that anything they say may be used against

them in a

criminal

proceeding and, therefore, depending on the circumstances, they may
have

a

right

under

the

Fifth

Amendment

of

the

United

States

Constitution not to testify in any civil and/or criminal contempt
proceedings.
In view of the foregoing,
1.
9:30

it is hereby ORDERED that:

An evidentiary hearing will begin on October 15, 2013, at

a.m.,

to

determine

whether

MIV

Therapeutics,

Inc.,

MIV

Scientific Holdings, Ltd., Biosync Scientific PVT, Alan P. Lindsay,

3

and/or

Chris

Xunan

Chen

should

be

held

in

civil

contempt

for

violating the Preliminary Injunction by their conduct relating to
the

sale of MIV Therapeutics

Medical Solution PVT Ltd.

(India)

PVT.

Ltd.

stock to

Purple

Each of the defendants shall attend the

hearing, which will, if necessary, continue on October 16, 17, and

18.
2.

If

a

defendant

cannot

afford

counsel

and

wishes

to

request appointment of an attorney, the defendant shall, by October
3, 2013,

file an accurate and complete Financial Affidavit in the

form attached hereto as Exhibit C.
3. The court shall attempt to serve the defendants named in
paragraph 1 hereinabove.
4. Riemer & Braunstein LLP shall promptly send this Order to
the

defendants

Lindsay,

with

named
the

in

paragraph

September

17,

1

hereinabove,

2013

Memorandum

except
and

for

Order

Concerning Subpoena and, by October 2, 2013, report on its efforts
to have

it delivered to each defendant

and the

results of that

effort.

DISTRICT JUDG

4

Case 1:11-cv-10791-MLW Document 130-1 Filed 05/21/13 Page 53 of 75

EXHIBIT A
('

...

COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
cIVIL ACTION NO. 11-1357.
R,ISSMAN HENDRICKS & OLIVJ::RIO, LLP
F/K/A RISSMAN JOSBE HENDRICKS &:
OLIVERIO, LLP F/K/A KUDIRKA & JOBSE,
Plaintiff
SUFFOLK, S5.

If

v.
MIV THERAPEUTICS INC,

MIV SCIENTIFIC HOLDINGS LTD,

BIOSYNC SCIENTIFIC PVT,

ALAN P. LINDSAY A/K/A

ALAN LINDSAY, PATRICK. MCGOWAN,

AND CHaIS XONAN CHEN' A/K/A CHRIS

Defenda,nts
PRELIMINARY
After hearing with notice having been given to all parties
it is ORDERED AND ADJUDGED THAT UNTIL FURTHER ORDER OF THE COURT
WE COMMAND you def endarrt s MIV THERAPEUTICS INC, MIV SCIENTIFIC
.HOI.,DINGS LTD,

BIOS'iNC SCIENTIFIc PVT, ALAN P. LINDSAY A/KIA

ALAN LINDSAY, PATRICK MCGOWAN, AND CHRIS XUNAN CHEN A/K/A CHRIS
CHEN ALAN P. LINDSAYA!K/A A.LAN LINDSAY and their respective
h~:Lrs

and beneficiaries, agents, successors and assigns,

affiliates, stockholders, bonding agents. trustees., insurers,
servants, owners, employees, officers, sureties, bonding agents,
independent: contractors, attorneys anci counselors, and each and
everyone

of

them are hereby ORDERED RESTRAINED AND ENJOINED as

follows :.
A.

Defendants MIV THERAPEUTIcs INC and MIV SCIENTIFIC

HOLDINGS LTD, and their respective heirs and

Case 1:11-cv-10791-MLW Document 130-1 Filed OS/21/13 Page 54 of 75

beneficiaries, agents, successors and assigns, affiliates,
stockholders, bonding agents,

trustees, insurers,

servants, owners, and attorneys, are restrained and
enjoined from directly or indirectly conveying,
liquidating, encumbering, transferring, pledging, gifting
or withdrawing in any manner any of its legal and
beneficial interest in any bank accounts or any monies
therein irrespective where located, other than in the
ordinary course of business, up to $480,000.00 other than
-,

to directly payor transfer same to Attorney Alan M. Cohen
to be held in escrow pending agreement by the parties or
further ORDER of this court.
B,

Defendants MIV THERAPEUTICS INC and MIV SCIENTIFIC
HOLDINGS LTD, and their respective heirs and
beneficiaries, agents, subsidiaries, successors and
assigns, affiliates, stockholders, bonding agents,
trustees, insurers, servants, owners, and attorneys, are
restrained and enjoined from directly or indirectly
conveying, liquidating, encumbering, transferring,
pledging, gifting or diluting any of their assets,
including without limitation, any real and personal
tangible and intangible property unless the first
$480,000.00 of the proceeds and/or value received is paid
to Attorney Alan M. Cohen to be held in escrow pending

Case 1:11-cv-10791-MLW Document 130-1

r

Filed 05/21/13 Page 55 of 75

(

.-'

agreement by the parties or further ORDER of this Court.
C.

Defendants MIV THERAPEUTICS INC and MIV SCIENTIFIC
HOLDINGS LTD,

and their respective heirs and

beneficiaries, agents, subsidiaries, successors and
assigns, affiliates, stockholders, bonding agents,
trustees,

insurers, servants, owners, and attorneys, are

restrained and enjoined from directly or indirectly
conveying,

liquidating, encumbering, transferring,

pledging, gifting or diluting any of the their respective
corporate stock, stock options and any real and/or
personal tangible and intangible property unless the first
$480,000.00 of the proceeds and/or value received is paid
to Attorney Alan M. Cohen to be held in escrow pending
agreement by the parties or further ORDER of this Court.
D.

'Defendants MIV THERAPEUTICS INC and MIV SCIENTIFIC.
HOLDINGS LTD, and their respective heirs and
beneficiaries, agents, subsidiaries, successors and
assigns, affiliates, stockholders, bonding agents,
trustees,

insurers, servants, owners, and attorneys, are

restrained and enjoined from directly or indirectly
conveying, liquidating, encumbering, transferring,
pledging, paying or gifting any real and personal tangible
and intangible property, including, but not limited to,
monies, stock, stock options, or other forms of bonuses to

Case 1:11-cv-10791-MLW Document 130-1 Filed OS/21/13 Page 56 of 75

the defendants ALAN P. LINDSAY A/K/A'ALAN LINDSAY, PATRICK
MCGOWAN, AND CHRIS XUNAN CHEN A/K/A CHRIS CHEN unless
$480,000.00 is paid to Attorney Alan M. Cohen to be held
in escrow pending agreement by the parties or further
ORDER of this Court.
E.

Defendants ALAN P. LINDSAY A/K/A ALAN LINDSAY, PATRICK
MCGOWAN, AND CHRIS XUNAN CHEN A/K/A CHRIS CHEN MIV
THERAPEUTICS INC and MIV SCIENTIFIC HOLDINGS LTD, and
their respective heirs and beneficiaries, agents,
successors and assigns, subsidiaries, affiliates,
stockholders, bonding agents,

trustees, insurers,

servants, owners, and attorneys, are restrained and
enjoined from directly or indirectly conveying,
liquidating, encumbering, transferring, pledging, gifting
or diluting any of the their respective corporate stock,
and stock options in MIV THERAPEUTICS INC, MIV

SC~E~TIFIC

HOLDINGS LTD, BIOSYNC SCIENTIFIC PVT and affiiiates and
subsidiaries, unless $480,000.00 of the proceeds and/or
value received therefrom is paid to Attorney Alan M. Cohen
to be held in escrow pending agreement by the parties or
further ORDER of this Court.
F.

Defendants ALAN P. LINDSAY A/K/A ALAN LINDSAY, PATRICK
MCGOWAN, AND CHRIS XUNAN CHEN A/K/A CHRIS CHEN MIV
THERAPEUTICS INC and MIV SCIENTIFIC HOLDINGS LTD, and

Case 1:11-cv-10791-MLW Document 130-1 Filed 05/21/13 Page 57 of 75

(

their respective heirs and beneficiaries, agents,
successors and assigns, subsidiaries, affiliates,
stockholders, bonding agents, trustees,

insurers,

servants, owners, and attorneys, are restrained and
enjoined from directly or indirectly conveying,
liquidating, encumbering,

transferring; pledging, gifting

or diluting any of the their respective real estate and
interests therein,

including without limitation the

property located at 81371 Andalusia, La Quinta, CA 92253,
as well as their personal tangible and intangible
property, wherever located, unless $480,000.00 of the
-proceeds and/or value received therefrom is paid to
Attorney Alan M. Cohen to be held in escrow pending
agreement by the parties or further ORDER of this Court.
within ten days of this Order provide the

G.

derived
applications or

the plaintiff filed or

extended for or on behalf of t

H.

corporate defendants.
DSAY, PATRICK

LINDSAY A/K/A ALAN

shall,
within twenty

is Order

pro~ide

plaintiff with a
that they

received, directly or indirectly fro

the corporate

Case 1:1l-cv-10791-MLW Document 130-1

Filed 05/21/13 Page 58 of 75

(

defendants MIV THERAPEUTICS INC, MIV SCIENTIFIC HOLDINGS
LTD and BIOSYNC SCIENTIFIC PVT and sUbsidiaries,
affiliates or related entities from January 1, 2009
through and including the present.
I. Defendants MIV THERAPEUTICS INC, MIV SCIENTIFIC HOLDINGS
LTD and BIOSYNC SCIENTIFIC PVT and their respective
subsidiaries, heirs and beneficiaries, agents, successors
and assigns, affiliates., stockholders, bonding agents,
trustees, insurers, servants, owners, and attorneys, are
restrained and enjoined from directly or indirectly
conveying, encumbering,

transferring, pledging, gifting or

withdrawing in any manner of its legal and beneficial
interest in any bank accounts or any monies therein as
well as in any other real or personal tangible or
intangible property, including without limitation stock
and stock options, irrespective of where located, up to
$480,000.00 other than to directly payor transfer same to

Attorney Alan M. Cohen to be held in escrow pending
agreement by the parties or further ORDER of this Court.

By the Court

'-I:Rllf'l'.uk~ ~
~J.

Dated:

April

/)

_-40~~--'"~~
THATlHE
fOREGOIllG DOC~MF.NT IS A FULL.

, 2011 TRUE AfolD CORRECT COpy OF TliE
ORIGINAL O~ I'lL E It'! f:\YOFFlrf.
AND IN MY LEML CllSTODY.

f;l'.Cfl(,f;I. .JOSEPH DCNOVA!;
C!..~p''' N~AG'l':3"rRAle

!:l"
E

" SUPEP.!,QR C\Y.lI.-6
TMENTOf

Case 1:11-cv-10791-MLW Document 132 *SEALED*

Filed 05/21/13 Page 5 of 6

EXHIBIT B

Alan M, Cohen

-----Original Message----­
From: [e-mail] [mailto:[e-mail]]
Sent: wednesday, July 27, 2011 11:46 AM
To: '[e-mail]'; 'Chris MIVT'; 'Thomas Deutsch'; 'Alan Lindsay'; 'Mathew
Thomas Kerala'
Subject: RE: Conf call - thursday
Sure that time works for me.
-----Original Message----­
From: [e-mail] [mailto:[e-mail]]
Sent: wednesday, July 27, 2011 19:53 AM
To: Chris MIVT; Thomas Deutsch; Alan Lindsay; Sunita Canada; Mathew Thomas Kerala
SUbject: Conf call - thursday
Dear Chris,
Further to the mail on the court order:
The crisil rating does not give details of my colleague and also the courier was delivered at
our earlier office address. This is the work of someone trying to put a spanner in the deal.
The order however puts an injunction against the sale of shares, assets and involves
affiliates and subsidiaries and would make the sale invalid.
Can we have a conf call Thursday morning 9,30am PST to sort this out,
Regards,
Brian
Sent from BlackBerryR on Airtel

1

EXHIBIT C
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_

IN THE UNITED STATES

0

o COURT OF APPEALS

DISTRICT COURT

~

__ ...

~_~,'_

o OTHER (Specify below)

IN THE CASEOF

LOCA nON NUMBER

v,

r

I
2

PERSON REPRESENTED (Show yourfull name)

3

o
o

Are you now employed?

Felony
Misdemeanor

o

Yes

4
5
5
7
8
9

o

No

0

0
0
0
0
0
0
0
0
0

Defendant - Adult
Defendant - Juvenile
Appellant
Probation Violator
Supervised Release Violator
Habeas Petitioner
2255 Petitioner
Material Witness
Other (Specify)

DOCKET NUMBERS
MagistrateJudge
District Court

Court of Appeals

Self-Employed

Name and address of employer:

EMPLOY­
MENT

IF NO, give month and year of last employment? _~~
How much did you earn per month? $

IF YES, how much do you
earn per month? $

o

If married, is your spouse employed?

Yes

o

No
If you are a minor under age 21,
what is the approximate monthly income
of your parent(s) or guardian(s)? $

IF YES, how much does your
spouse earn per month? $

INCOME
&
ASSETS

Have you received within the past 12 months any income from a business, profession or other form of self-employment, or in the
form of rent payments, interest, dividends, retirement or annuity payments, or other sources?
0 Yes 0 No

OTHER
INCOME

CASH

RECEIVED
IF YES, give the amount
received and identify the
sources

$
$
$

SOURCES
_
_

Do you have any cash on hand or money in savings or checking accounts?

0

Yes

0

No

IF YES, total amount? $

Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings
and clothing)? 0 Yes 0 No

VALUE
PROP­
ERTY

IF YES, give value and
description for each

$
$

DESCRIPTION
_
_

$-----­
$

DEPENDENTS
OBLIGATIONS

MARITAL STATUS
Single
Married
Widowed
___ Separated or Divorced

List persons you actually support and your relationship to them
Total
No. of
Dependents

&

DEBTS

DESCRIPTION
TOTAL DEBT
DEBTS &
MONTHLY BILLS 1 - - - - - - - - - - - - - - - - - - - - - $ - - - - - - - ­

(Rem, uttltties, loans,
charge accounts. etc.)

1--------------------$-------­
1-------------------$-------­
$

I certify under penalty of perjury that the foregoing is true and correct.

SIGNA TURE OF DEFENDANT
(OR PERSON REPRESENTED)

Date

MONTHLY
PAYMENT
$-----­
$----­
$----­
$

_