LM INSURANCE CORPORATION v. JAMALI DEVELOPERS LLC
OPINION filed. Signed by Judge Anne E. Thompson on 1/4/2018. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAN 09 2018
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LM INSURANCE CORP.,
Civ. No. 16-6071
JAMALI DEVELOPERS, LLC,
This matter comes before the Court upon the Motion to Enforce Judgment and for
Contempt by Plaintiff LM Insurance Corporation ("Plaintiff') against Defendant J amali
Developers, LLC ("Defendant"), filed December 5, 2017. (ECF No. 23.) This Motion is
unopposed. The Court has decided this Motion based upon the written submissions of Plaintiff
pursuant to Local Civil Rule 78.l(b). For the following reasons, Plaintiffs Motion is denied.
The Court granted default judgment in favor of Plaintiff on September 11, 2017
(''September 11th Order") and awarded judgment in the amount of $261,294.00 plus 1.24% postjudgment interest, to be paid within seven (7) days of the receipt of the Order. (ECF No. 22.)
Defendant has received this Order and Opinion and has made subsequent representations to
Magistrate Judge Bongiovanni of its intent to pay the judgment, accepting offers of assistance
with a payment schedule. (Pl.'s Mot. Enforce J., Ex. J, ECF No. 23-12.) Defendant made
additional communications to Judge Bongiovanni's chambers (id.), retained counsel, and
participated in a telephone conference on October 10, 2017 during which the parties were
directed to provide a report on the liquidation of judgment no later than October 26, 2017 (ECF
entry dated 10/10/2017). Defendant, however, has made no further communications.
On December 5, 2017, Plaintiff filed the present Motion to Enforce Judgment and for
Contempt Pursuant to Federal Rule of Civil Procedure 70(e). (ECF No. 23.) Defendant has not
replied or opposed. On December 20, 2017, Plaintiff also filed an application for a writ of
execution pursuant to Federal Rule of Civil Procedure 69(a) with the Clerk ofthe Court in order
to garnish property in which Plaintiff believes Defendant holds a substantial non-exempt interest.
(ECF No. 24.)
Plaintiff moves the Court for two forms of relief: to enforce the September 11th Order of
Judgment and to hold Defendant in contempt under Rule 70(e).
Rule 70 is not the appropriate vehicle for the first form of relief that Plaintiff seeks. (Pl.' s
Br. at 14, ECF No. 23-1 ("Plaintiff seeks an order directing Defendant to pay to the Court the
sum of $261,294.00 and post-judgment interest ....").) "Rule 70 gives [courts] the authority to
order a party who refuses to comply with a final judgment to perform specific acts necessary to
effectuate the judgment." United States v. Hull, 2017 WL 5986961, at *1 (D.N.J. Nov. 30,
2017); Fed. R. Civ. P. 70(a). Despite Plaintiff's characterization regarding the seven day period,
the September 11th Order did not truly require any specific act or conduct of Defendant and is
more appropriately described as a money judgment. See Henderson v. Mazurkiewicz, 2015 WL
8152530, at *2 n.2 (M.D. Pa. Dec. 8, 2015); Smith v. Hayes, 2013 WL 543841, at *1 (S.D. Miss.
Sept. 27, 2013); Bd. of Comm 'rs ofStark Cty. v. Cape Stone Works, Inc., 206 F. Supp. 2d 100,
102 (D. Mass. 2002). Pursuant to Rule 69(a), Plaintiffs already-filed application for writ of
execution (ECF No. 24) is in fact the appropriate vehicle by which to enforce the Court's
September 11th Order. Fed. R. Civ. P. 69(a) ("A money judgment is enforced by a writ of
execution, unless the court directs otherwise."); see also Bd. of Comm 'rs ofStark Cty., 206 F.
Supp. 2d at 102 (finding a judgment without any equitable relief was '"a judgment for the
payment of money' which is governed by Rule 69(a)" not Rule 70).
Considering next Plaintiff's request that Defendant be held in civil contempt, the Court
finds contempt inappropriate. Under Rule 70, "[t]he court may also hold the disobedient party
in contempt." Fed. R. Civ. P. 70(e). This relief is limited to the context of the Rule, "Enforcing
Judgment for a Specific Act," see generally Fed. R. Civ. P. 70, and thus for defiance of such
orders or judgments of specific acts, see Breen v. Tucker, 821 F. Supp. 2d 375, 383 (D.D.C.
2011) (noting that Rule 70(e) is designed to hold a party in contempt for disobeying a lawful
order and to compel compliance with said order); TracFone Wireless, Inc. v. Holden Prop.
Servs., LLC, 103 F. Supp. 23d 1357, 1360 (S.D. Fl. 2015) (citing Breen, among others, for the
proposition that Rule 70(e) is designed to enforce lawful orders for specific acts); U.S. Nat'/
BankAss'n v. Poblete, 2017 WL 4736712 at *2 (D.D.C. Oct. 19, 2017). Again, although the
Court attempted to encourage the efficient payment of judgment by including a seven day time
period, this does not render the September 11th Order awarding default judgment a judgment
compelling specific conduct. Therefore, Rule 70 is the incorrect vehicle for contempt.
Even broadly construing Plaintiff's request to find Defendant in civil contempt, Plaintiff
has not met its burden. "A plaintiff seeking civil contempt must show that '(1) a valid court
order existed, (2) the defendant had knowledge of the order, and (3) the defendant disobeyed the
order."' N.J. Bldg. Laborers' Statewide Benefit Funds v. Excel Serv. & Const., Inc., 2009 WL
3335864, at *2 (D.N.J. Oct. 13, 2009) (quoting Harris v. City ofPhiladelphia, 47 F.3d 1311,
1326 (3d Cir. 1995)) (internal citations omitted); see also M Cohen & Sons, Inc. v. Cohen Iron
Works, LLC, 2012 WL 1413525, at *2 (E.D. Pa. Apr. 24, 2012) (applying these three
requirements to a motion for contempt pursuant to Rule 70(e)).
Plaintiff has satisfied the first two elements but has not met its burden of"clear and
convincing evidence" as to the third. See Robin Woods Inc. v. Woods, 28 F.3d 396 (3d Cir.
1994). Plaintiff argues that Defendant is disobedient because "[t]he entire history of this case
bespeaks culpable delay on the part of Defendant," amounting to ''more than a year of lack of .
cooperation." (Pl. 's Br. at 12.) While it is true, that the September 11th Order requested prompt
payment given the circumstances of the case (id.), Judge Bongiovanni's chambers emailed the
parties on September 12, 2017 offering assistance, to which Mr. Burhanpurwala, on behalf of
Defendant, responded and requested help devising a payment schedule. (Ex. J, ECF No. 23-12.)
Defendant then participated in the Court-initiated October 10, 2017 telephone conference
regarding payment of the judgment. (Ex. K, ECF No. 23-13; ECF entry dated 10/10/2017.)
While it is also true that Defendant did not comply with Judge Bongiovanni's direction following
the telephone conference (see Ex. L, ECF No. 23-14), this is not the basis for Plaintiff's motion
to justify contempt. Moreover, Defendant's previous culpable delay caused by the failure to
obtain counsel, which the Court found at default judgment (Op. at 6, ECF No. 21; Pl.'s Br. at
13), is not persuasive at this stage. It appears that Defendant has now obtained counsel (see Ex.
F, ECF No. 23-9 (communications indicating that Mr. Joseph Boyan, Esq. represents
Defendant); Ex. K, ECF No. 23-13 (letter indicating Mr. Boyan was present at telephone
conference}}, consistent with the repeated advice of the Court, Judge Bongiovanni, and opposing
counsel (see, e.g., Op. at 4).
Good faith is not a defense to civil contempt, and thus willfulness is not a necessary
element. Robin Woods Inc., 28 F.3d at 399 (citing Harley-Davidson, Inc. v. Morris, 19 F.3d 142,
148-49 (3d Cir. 1994); M Cohen & Sons, Inc., 2012 WL 1413525, at *2. It is still, nonetheless,
relevant to show that the defendant has taken reasonable steps to comply with a particular order.
See Harris, 47 F.3d at 1324. Considering the September I Ith Order on which Plaintiff bases
relief, Defendant has made steps toward compliance, Defendant has not blatantly disobeyed or
disregarded the Court, and only two months have lapsed since Defendant's last appearance or
communication with the Court. Cf Tung v. Lu, 2013 WL 271895, at *1 (E.D. Pa. Jan. 24, 2013)
(finding Rule 70(e) contempt warranted where "[t]hroughout the several years of this case [the
defendant] has taken extraordinary efforts to not only ignore valid court orders, but to evade
contact with this case in its entirety''). Defendant's conduct evidences efforts to comply with the
September 11th Order, not blatant disobedience. On balance, contempt is not justified at this
juncture. The Court encourages participation with the efforts initiated by Judge Bongiovanni to
satisfy judgment from the September 11th Order; otherwise, Plaintiff's writ of execution is the
For the foregoing reasons, Plaintiff's Motion is denied. An appropriate Order will
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