Ferrara et al v. BD Haulers Inc. et al
Filing
29
MEMORANDUM OF DECISION & ORDER granting in part and denying in part 23 Motion for Contempt; Based on the foregoing, the Plaintiffs motion is granted to the extent it seeks to compel the production of the Outstanding Documents and is denied in all other requests. Gillette is warned that if he fails to comply with this order, he could be subject to contempt proceedings for failure to respond to the post-judgment discovery requests and this order. If he is found to be in contempt of the discover y requests or this order, he could be subject to sanctions, including imposition of a monetary fine, attorneys fees, and costs. If the failure to comply continues, the Court could issue a warrant of arrest for failure to comply with a court order. In addition to service on Gillettes counsel via ECF, the Plaintiffs are directed to serve a copy of this order by certified mail, return receipt requested, upon Gillette at his last known address. So Ordered by Judge Arthur D. Spatt on 11/12/2016. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------------------x
JOSEPH A. FERRARA, SR., FRANK H. FINKEL, MARC HERBST,
DENISE RICHARDSON, THOMAS F. CORBETT, ANTHONY
D’AQUILA, THOMAS GESUALDI, LOUIS BISIGNANO,
DOMINICK MARROCCO, and ANTHONY PIROZZI, as Trustees
and Fiduciaries of the Local 282 Welfare Trust Fund, the Local 282
Pension Trust Fund, the Local 282 Annuity Trust Fund, the Local
282 Job Training Trust Fund, and the Local 282 Vacation and Sick
Leave Trust Fund,
Plaintiffs,
-againstBD HAULERS INC., NICOLENA TRUCKING LLC, and FRANK
GILLETTE,
Defendants.
----------------------------------------------------------------------------------x
APPEARANCES:
Trivella & Forte, LLP
Attorneys for the Plaintiffs
1311 Mamaroneck Ave., Suite 170
White Plains, NY 10605
By: Jonathan M. Bardavid, Esq., Of Counsel
Russo Scamardella & D’Amato
Attorneys for the Defendant Frank Gillette
1010 Forest Avenue
Staten Island, NY 10310
By: Michael V. Gervasi, Esq., Of Counsel
NO APPEARANCES:
BD Haulers, Inc.
Defendant
Nicolena Trucking, LLC
Defendant
1
Memorandum of
Decision & Order
11-cv-940 (ADS)
SPATT, District Judge:
I.
BACKGROUND
On February 25, 2011, the Plaintiffs Joseph A. Ferrara, Sr.; Frank H. Finkel; Marc Herbst;
Denise Richardson; Thomas F. Corbett; Anthony D’Aquila; Thomas Gesualdi; Louis Bisignano;
Dominick Marrocco; and Anthony Pirozzi, as the Trustees and Fiduciaries of the Local 282 Welfare
Trust Fund, the Local 282 Pension Trust Fund, the Local 282 Annuity Trust Fund, the Local 282 Job
Training Trust Fund, and the Local 282 Vacation and Sick Leave Trust Fund (collectively, the
“Trustees”), commenced this action under the provisions of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., alleging that the Defendants BD Haulers, Inc.
(“BD Haulers”); Nicolena Trucking, LLC (“Nicolena”); and their common principal, namely, Frank
Gillette (“Gillette,” together with BD Haulers and Nicolena, the “Defendants”), failed to remit
certain fringe benefit contributions to the Trustees’ funds, as they were required to do under the
terms of collective bargaining agreements.
After the Defendants failed to answer or otherwise appear in this action, on July 18, 2011, the
Clerk of the Court noted their default.
On August 8, 2011, pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.”) 55, the
Plaintiff filed a motion for entry of a default judgment.
On January 26, 2012, the Court referred the motion for a default judgment to United States
Magistrate Judge William D. Wall for a report and recommendation.
On January 31, 2012, Magistrate Judge Wall issued a Report and Recommendation (“R&R”),
recommending that the Plaintiffs’ motion for a default judgment be granted; that monetary damages
be awarded, jointly and severally, against Gillette and BD Haulers, in the amount of $165,503.81, plus
per diem interest at a rate of $86.54; that monetary damages be awarded against Nicolena in the
amount of $14,863.24, plus per diem interest at a rate of $4.86; and that the Defendants be directed to
submit to an audit.
2
On February 23, 2012, no objections to the R&R having been filed, the Court adopted
Magistrate Judge Wall’s recommendations in their entirety.
On February 24, 2012, the Clerk of the Court entered judgment against the Defendants and
closed the case.
On January 31, 2015, in an effort to assess the Defendants’ capacity to satisfy the judgment,
the Plaintiffs served the individual Defendant Gillette with a subpoena, directing him to appear for a
deposition and to bring with him numerous categories of potentially relevant documents. In
particular, the subpoena called for the production of: (1) tax returns filed by the Defendants;
(2) bank and financial statements relating to accounts held by the Defendants; and (3) documents
reflecting payments made to or from the Defendants.
On April 27, 2015, despite not previously appearing in this action, Gillette, by counsel, served
written responses to the Plaintiffs’ document requests.
In these responses, Gillette denied
possessing any responsive documents other than a copy of his 2013 tax return.
On April 29, 2015, Gillette attended the subpoenaed deposition with his counsel, namely,
Anthony Cambria, Esq. Based on Gillette’s testimony at the deposition regarding his assets and
financial condition, counsel for the Plaintiffs made several requests for outstanding documents,
including: (1) two years of bank statements relating to a Chase checking account previously owned
by Gillette; (2) tax returns filed by Gillette for the years 2009, 2010, 2011, and 2012; (3) a form W-2
for the $7,953 in income reflected on Gillette’s 2013 tax return; and (4) twelve months of credit card
statements relating to a Credit One account owned by Gillette (collectively, the “Outstanding
Documents”).
Approximately seven months later, on November 3, 2015, still not having received the
Outstanding Documents, the Plaintiffs sent a letter to Mr. Cambria, in which they issued a final
demand for production.
3
On February 2, 2016, Mr. Cambria sent the Plaintiffs a brief letter in response, stating only
that he no longer represents Gillette in this matter.
On May 6, 2016, the Plaintiffs filed a motion, pursuant to FED. R. CIV. P. 45(g) and Local Civil
Rule 83.6, seeking to hold Gillette in civil contempt for failing to comply with their subpoena. In
this regard, the Plaintiffs seek to impose a financial penalty against Gillette, as well as recover the
attorneys’ fees and costs they incurred in attempting to enforce the judgment in this case.
Alternatively, the Plaintiffs move under FED. R. CIV. P. 69(a) to compel Gillette to produce the
Outstanding Documents.
To date, none of the Defendants has responded to the Plaintiffs’ motion.
II.
A.
DISCUSSION
A Civil Contempt Order is Not Warranted
In general, “ ‘a valid subpoena is a legal instrument, non-compliance with which can
constitute contempt of court.’ ” Sheet Metal Workers’ Nat’l Pension Fund v. Amodeo, No. 09-cv-121, 2016
U.S. Dist. LEXIS 69799, at *24 (E.D.N.Y. May 27, 2016) (quoting Daval Steel Prods., a Div. of Francosteel
Corp. v. M/V Fakredine, 951 F.2d 1357, 1364 (2d Cir. 1991)); see Beare v. Millington, No. 07-cv-3391, 2010
U.S. LEXIS 2501, at *7 (E.D.N.Y. Jan. 13, 2010) (“Valid attorney-issued subpoenas under Rule
45(a)(3) operate as enforceable mandates of the court on whose behalf they are served” (citation
omitted)).
Thus, FED. R. CIV. P. 45(g) provides that the Court “may hold in contempt a person who,
having been served, fails without adequate excuse to obey the subpoena or an order related to it.” See
Jalayer v. Stigliano, No. 10-cv-2285, 2016 U.S. Dist. LEXIS 135288, at *7-*8 (E.D.N.Y. Sept. 29, 2016)
(noting that Rule 45(g) is “[t]he authority in the Federal Rules of Civil Procedure for the imposition
of sanctions . . . for failure to comply with a subpoena” and observing that “[t]he Court has the
4
power under this rule to impose contempt simply on the basis of failure to comply with a subpoena”
(citation and quotation marks omitted)).
Civil contempt is appropriate where “(1) there is a ‘clear and unambiguous’ order, (2) the
proof of non-compliance with the order is ‘clear and convincing,’ and (3) ‘the contemnor has not
been reasonably diligent and energetic in attempting to accomplish what was ordered.’ ” Cadlerock
Joint Venture, L.P. v. Adon Fruits & Vegetables Inc., No. 09-cv-2507, 2010 U.S. Dist. LEXIS 65978, at *4
(E.D.N.Y. Apr. 21, 2010) (Report and Recommendation) (quoting Hunter TBA, Inc. v. Triple V Sales, 250
F.R.D. 116, 119 (E.D.N.Y. 2008)), adopted, 2010 U.S. Dist. LEXIS 55988 (E.D.N.Y. June 7, 2010).
In this regard, “ ‘[c]ivil sanctions have two purposes: to coerce compliance with a court order
and to compensate a plaintiff.’ ” Gesualdi v. Hardin Constr. Inc., No. 09-cv-683, 2016 U.S. Dist. LEXIS
60533, at *5 (E.D.N.Y. May 6, 2016) (quoting CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91, 101 (2d Cir.
2016)).
Applying these standards, the Court finds that a civil contempt order against Gillette is not
warranted at this time.
It is noted that, although the February 23, 2012 subpoena was a legal instrument implicitly
carrying an enforceable mandate of the Court, there is no clear and convincing evidence that Gillette
failed to substantially comply with it. On the contrary, Gillette served written responses to the
Plaintiffs’ document requests, including a copy of his 2013 tax return, and appeared for a deposition
at which he answered the questions put to him by the Plaintiffs’ counsel regarding his ability to
satisfy a judgment in this case.
Apparently, Gillette’s answers to certain of these questions caused counsel for the Plaintiffs
to place additional and/or renewed document requests on the record. However, while certain of
these requests arguably fit within categories of documents outlined in the subpoena, the Court is not
persuaded that counsel’s oral requests constitute “clear and unambiguous” orders, with which
5
Gillette was bound to comply at the risk of being found in contempt of Court. In the Court’s view,
the same is true of counsel’s February 2, 2016 letter to Mr. Cambria, in which a “final” written
request for the Outstanding Documents was made.
Indeed, neither of these correspondences was followed-up with an appropriate motion to
compel before the Plaintiffs sought a civil contempt order.
Accordingly, to the extent that the Plaintiffs seek a civil contempt order imposing a financial
penalty against Gillette, together with an award of attorneys’ fees and costs, their motion is denied.
B.
Gillette is Required to Produce the Outstanding Documents or Risk Being Held in
Contempt in the Future
Despite the Court’s opinion that a civil contempt order is unjustified at this juncture,
Gillette is nevertheless required to promptly produce the Outstanding Documents. His continued
failure to diligently comply with post-judgment discovery may result in sanctions at a later date.
In this Circuit, “broad post-judgment discovery in aid of execution is the norm in federal and
New York state courts.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (2d Cir. 2012). The scope of
such discovery – which is governed by FED. R. CIV. P. 69 – “is constrained principally in that it must
be calculated to assist in collecting on a judgment.” Id.; see Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty
Corp., No. 88-cv-3039, 1993 U.S. Dist. LEXIS 1929, at *3-*4 (E.D.N.Y. Feb. 23, 1993) (noting that the
scope of post-judgment discovery is broad and that “a plaintiff is entitled to a very thorough
examination of a judgment debtor with respect to its assets” (quotation marks and citation
omitted)).
Where, as here, the Defendant has not lodged any objection to the Plaintiffs’ post-judgment
discovery demands, “it has ‘waived any objections [it] might otherwise have raised.’ ” La Barbera v.
Bestech Tranps., LLC, No. 07-cv-4699, 2012 U.S. Dist. LEXIS 21532, at *2 (E.D.N.Y. Feb. 21, 2012)
(quoting Gibbons v. Smith, No. 01-cv-1224, 2010 U.S. Dist. LEXIS 13938, at *8 (S.D.N.Y. Feb. 11, 2010)).
6
In any event, the Court has reviewed the transcript of Gillette’s deposition and finds that the
requested documents are relevant to the Plaintiffs’ collection efforts and well within the realm of
discoverable post-judgment material.
Accordingly, to the extent that the Plaintiffs seek an order compelling Gillette to produce
the Outstanding Documents, their motion is granted.
Gillette is directed to produce the
Outstanding Documents within 20 days of being served with this Order. Upon anything less than
full compliance, the Court will consider a renewed motion by the Plaintiff to find Gillette in
contempt of Court and to impose appropriate monetary sanctions, including payment of the
Plaintiff’s post-judgment attorneys’ fees and costs.
III.
CONCLUSION
Based on the foregoing, the Plaintiffs’ motion is granted to the extent it seeks to compel the
production of the Outstanding Documents and is denied in all other requests.
Gillette is warned that if he fails to comply with this order, he could be subject to
contempt proceedings for failure to respond to the post-judgment discovery requests and this
order. If he is found to be in contempt of the discovery requests or this order, he could be
subject to sanctions, including imposition of a monetary fine, attorneys’ fees, and costs. If the
failure to comply continues, the Court could issue a warrant of arrest for failure to comply with
a court order.
In addition to service on Gillette’s counsel via ECF, the Plaintiffs are directed to serve a
copy of this order by certified mail, return receipt requested, upon Gillette at his last known
address.
It is SO ORDERED:
Dated: Central Islip, New York
November 12, 2016
/s/ Arthur D. Spatt____________________________________________
ARTHUR D. SPATT
United States District Judge
7
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?