ERA Franchise Systems, LLC et al v. Kings Realty #1, et al
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
ERA FRANCHISE SYSTEMS, LLC f/k/a
ERA FRANCHISE SYSTEMS, INC.,
MEMORANDUM & ORDER
KINGS REALTY #1, INC. and KEVIN J.
Ronald A. Giller, Esq.
Joseph Salvo, Esq.
Matthew Joseph Koster
Gordon & Rees LLP
90 Broad Street
New York, NY 10004
Charles Joseph Messina, Esq.
Gordon & Rees LLP
18 Columbia Turnpike, Suite 220
Florham Park, NJ 07932
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
compelling that discovery (the “Discovery Order”).
On October 7, 2011, Judge Wall certified the facts
636(e)(6) of Title 28 of the United States Code.
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
Defendants ignored the order, and Plaintiffs filed
this motion, which it had personally served on Defendants.
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.’”
Utica Coll. v. Gordon, 389
Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs.,
Inc., 369 F.3d 645, 655 (2d Cir. 2004)).
All three conditions
failed to comply with the order, and there is no suggestion that
Plaintiff’s motion is granted to the extent discussed below.
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
Further, all parties are directed to appear before this Court on
Thursday, March 15, 2012 at 1:45 p.m. in Courtroom 1030.
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
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.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
5 , 2012
Central Islip, New York
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