ERA Franchise Systems, LLC et al v. Kings Realty #1, et al

Filing 35

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION granting 31 Motion for Contempt; adopting 33 Report and Recommendation. Based on the foregoing discussion, Plaintiff's motion for contempt (Docket Entry 31) is GRANTED to the extent o utlined here: Defendants are each sanctioned $1,000 per day, starting today, until they comply with Judge Wall's Discovery Order. Further, all parties are directed to appear before this Court on Thursday, March 15, 2012 at 1:45 p.m. in Co urtroom 1030. If Defendant Hanson does not appear on March 15, the Court will issue a warrant for his arrest. Plaintiff is directed to have this Order served on Defendants via personal service immediately and file proof of service with the Court. De fendants shall be liable for Plaintiff's reasonable attorneys' fees incurred in prosecuting this contempt motion. The Clerk of the Court is respectfully directed to terminate docket entries 31 and 33. So Ordered by Judge Joanna Seybert on 3/5/2012. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
ERA FRANCHISE SYSTEMS, LLC f/k/a
ERA FRANCHISE SYSTEMS, INC.,
Plaintiff,
-against-

MEMORANDUM & ORDER
07-CV-5319(JS)(WDW)

KINGS REALTY #1, INC. and KEVIN J.
HANSON,
Defendants.
--------------------------------------X
APPEARANCES
For Plaintiff:
Ronald A. Giller, Esq.
Joseph Salvo, Esq.
Matthew Joseph Koster
Gordon & Rees LLP
90 Broad Street
23rd Floor
New York, NY 10004
Charles Joseph Messina, Esq.
Gordon & Rees LLP
18 Columbia Turnpike, Suite 220
Florham Park, NJ 07932
For Defendants:

No Appearances.

SEYBERT, District Judge:
Pending before the Court is a motion by Plaintiff ERA
Franchise Systems, LLC f/k/a ERA Franchise Systems, Inc. that
seeks to hold Defendants Kings Realty #1 (“Kings Realty”) and
Kevin J. Hanson (“Hanson”) in contempt for failing to comply
with

their

Magistrate

post-judgment
Judge

William

discovery
D.

Wall’s

obligations
March

30,

compelling that discovery (the “Discovery Order”).

and
2011

with
order

BACKGROUND
On October 7, 2011, Judge Wall certified the facts
underlying

the

present

contempt

motion

pursuant

636(e)(6) of Title 28 of the United States Code.
33).

to

Section

(Docket Entry

There having been no objection by either party to Judge

Wall’s recitation of the facts, the Court adopts it as thorough,
concise, and free from clear error.

The reader is referred to

Docket Entry 33 for a full background discussion; briefly, the
Court notes that Defendants failed to comply with information
subpoenas and, in Hanson’s case, failed to appear for his oral
examination.
respond

to

examination.

Judge
the

Wall

subpoenas

subsequently
and

Hanson

to

ordered
appear

Defendants
for

the

to

oral

Defendants ignored the order, and Plaintiffs filed

this motion, which it had personally served on Defendants.
DISCUSSION
Civil contempt is appropriate here.

“A party may be

held in civil contempt for failure to comply with a court order
if ‘(1) the order the contemnor failed to comply with is clear
and unambiguous, (2) the proof of noncompliance is clear and
convincing, and (3) the contemnor has not diligently attempted
to comply in a reasonable manner.’”
F.

App’x

71,

72

(2d

Cir.

Utica Coll. v. Gordon, 389
2010)

(quoting

Paramedics

Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs.,
Inc., 369 F.3d 645, 655 (2d Cir. 2004)).

2

All three conditions

are

met

here.

unambiguous

Judge

(see

Wall’s

Docket

Discovery

Entry

30),

Order

Defendants

was

clear

have

and

obviously

failed to comply with the order, and there is no suggestion that
Defendants

have

made

any

attempts

to

comply.

Accordingly,

Plaintiff’s motion is granted to the extent discussed below.
CONCLUSION
Based on the foregoing discussion, Plaintiff’s motion
for contempt (Docket Entry 31) is GRANTED to the extent outlined
here: Defendants are each sanctioned $1,000 per day, starting
today,

until

they

comply

with

Judge

Wall’s

Discovery

Order.

Further, all parties are directed to appear before this Court on
Thursday, March 15, 2012 at 1:45 p.m. in Courtroom 1030.

If

Defendant Hanson does not appear on March 15, the Court will
issue a warrant for his arrest.

The Cadle Co. v. Valdez, No.

96-CV-7373, 2008 WL 1959528, at *1 (S.D.N.Y. May 5, 2008) (“A
person in contempt may be incarcerated in the endeavor to obtain
compliance with court orders enforcing discovery rules.”).
Plaintiff is directed to have this Order served on
Defendants via personal service immediately and file proof of
service

with

the

Court.

Defendants

shall

be

liable

for

Plaintiff’s reasonable attorneys’ fees incurred in prosecuting
this contempt motion.

3

The Clerk of the Court is respectfully directed to
terminate docket entries 31 and 33.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
5 , 2012
Central Islip, New York

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