Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds, v. Duncan & Son Carpentry, Inc.

Filing 18

ORDER granting in part and denying in part 16 Motion to Compel. For the reasons set forth in the attached Order, that portion of the Funds' motion seeking to compel post-judgment discovery is granted; that portion of the motion seeking a finding of contempt and related monetary penalties is denied without prejudice and with leave to renew at a later date. Ordered by Magistrate Judge Steven I. Locke on 6/26/2015. (Bagnuola, Anthony)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
TRUSTEES of EMPIRE STATE
CARPENTERS ANNUITY,
APPRENTICESHIP, LABORMANAGEMENT COOPERATION,
PENSION and WELFARE FUNDS,

ORDER
14-cv-2894 (SJF)(SIL)

Plaintiffs,
-againstDUNCAN & SON CARPENTRY, INC.,
Defendant.
-----------------------------------------------------------x
LOCKE, Magistrate Judge:
On May 7, 2014, Plaintiffs, the Trustees of Empire State Carpenters Annuity,
Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds
(“Plaintiffs” or “Funds”), commenced this action against Defendant Duncan & Son
Carpentry, Inc. (“Defendant” or “Duncan”), alleging violations of the Employment
Retirement Income Security Act of 1974 (“ERISA”), the Labor Management
Relations Act of 1947 (“LMRA”), and the Federal Arbitration Act (“FAA”).

See

Compl., DE [1]. Defendant failed to answer or otherwise appear in this action and
on September 16, 2015, Judge Feuerstein granted Plaintiffs’ motion for a default
judgment. See DE [14]. Presently before the Court is Plaintiffs’ letter motion, DE
[16], seeking to compel Duncan’s responses to post-judgment discovery demands
served pursuant to Federal Rule of Civil Procedure 69, including production of a
corporate witness for deposition, and an Order finding Duncan in contempt of Court
and directing it to pay any attorneys’ fees incurred by Plaintiffs in taking the

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deposition and making the instant motion.

The motion is unopposed.

For the

reasons set forth herein, it is granted in part and denied in part.
I.

Background
Plaintiffs brought the underlying action to recover damages for alleged

violations of ERISA, the LMRA, and the FAA. Specifically, Plaintiffs allege that
Duncan became bound to a Collective Bargaining Agreement with the Northeast
Regional Council of Carpenters (the “CBA”), which obligated Duncan inter alia to
make periodic contributions to the Funds on behalf of its covered workers. See
Compl. ¶ 9. Plaintiffs allege that Duncan ceased making the required payments
and, pursuant to the CBA, the parties’ dispute proceeded to arbitration.
id. ¶¶ 11-12.

See

The arbitrator held a hearing and determined that Duncan had

violated the CBA and awarded the Funds damages in the amount of $9,789.00. See
id. ¶¶ 13-14. The Complaint arises from Duncan’s alleged failure to comply with
the arbitrator’s award, for which the Funds seek confirmation thereof, together with
attorneys’ fees and costs of the instant action.
As noted above, Duncan failed to answer or otherwise respond to the
Complaint, and on July 8, 2014, the Clerk of the Court noted Duncan’s default. See
DE [7]. Subsequently, the Funds filed a motion for a default judgment, see DE [11,
12], which Judge Feuerstein granted, awarding Plaintiffs damages in the liquidated
amount of $9,789.02 plus prejudgment interest of $687.47 and attorneys’ fees and
costs of $1,502.98, for a total judgment of $11,502.98. See DE [14].

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On June 15, 2015, Plaintiffs filed the instant motion, see DE [16], claiming
that, despite Judge Feuerstein’s judgment of default and associated damages, to
date the Funds have been unable to recover “anything” from Duncan. See Ltr. Mtn.
at 1. This notwithstanding that Duncan is “incorporated under the laws of the
State of New York” and “remains an active and profitable business.” According to
Plaintiffs, Duncan has resisted the Funds’ efforts to “discover [its] currently held
assets and ownership interests.” Id.
In this regard, Plaintiffs claim that on October 1, 2014, they served a
deposition notice and document demands upon Duncan at its headquarters by
certified mail.

See id. at 2.

Reponses to the document demands were due on

December 11, 2014, and the deposition was noticed for December 18, 2014. See id.
However, Duncan did not produce any documents, and did not object to or appear
for the December 18 deposition. See id.
Thereafter, in or around April 2015, the Funds spoke directly with David
Duncan, the owner of Defendant, and inquired as to his noncompliance with postjudgment discovery.

See id.

Mr. Duncan claimed not to have received the

deposition notice or document demands, and assured Plaintiffs that he would
produce the requested documents on behalf of the Defendant within two weeks. See
id. Again, Duncan produced no documents.
On May 4, 2014, Plaintiffs served Duncan with a second deposition notice
and document demands, this time at his personal address, which he allegedly
provided, by certified mail.

See id.

Responses to the second set of discovery

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demands were due on May 27, 2015, and the second deposition was noticed for June
3, 2015. See id. Again, Duncan did not produce any documents, nor did he object to
or appear for the June 3 deposition. See id.
The Funds claim that, as a courtesy, they notified Mr. Duncan of their
intention to file the instant motion if the requested documents were not produced on
or before June 9, 2015.

Defendant still did not comply.

See id.

As a result,

Plaintiffs now seek from this Court an Order: (i) directing Mr. Duncan to appear for
a deposition; (ii) directing Duncan to produce the documents requested in aid of
collection; and (iii) finding Defendant in contempt of Court and requiring it to pay
attorneys’ fees incurred by Plaintiffs in taking the deposition and making the
instant motion. Duncan did not respond to the motion, despite being duly served.
See DE [17] (Affidavit of Service).
II.

Applicable Law
A.

Availability of Post-Judgment Discovery

“ ‘Discovery of a judgment debtor’s assets is conducted routinely under the
Federal Rules of Civil Procedure.’ ” Ferrara v. Metro D Excavation & Found., Inc.,
10-cv-4215, 2012 U.S. Dist. LEXIS 22443, at *1 (E.D.N.Y. Feb. 22, 2012) (quoting
First City, Texas-Houston, N.A. v. Rafidain Bank, 281 F.3d 48, 54 (2d Cir. 2002)).
Federal Rule of Civil Procedure (“FRCP”) 69 provides that “[i]n the aid of judgment
or execution, the judgment creditor . . . may obtain discovery from any person—
including the judgment debtor—as provided in these rules or by the procedure of
the state where the court is located.” Fed. R. Civ. P. 69(a)(2). It is fundamental

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that the Federal Rules authorize the familiar discovery devices sought to be utilized
here—i.e., a request to produce documents under FRCP 34 and a deposition under
FRCP 30—and thus both are available in the current post-judgment posture of this
case to aid in execution of the judgment.
B.

Contempt Power of a Federal Magistrate Judge

“The contempt power of a federal magistrate judge is set out in
28 U.S.C. § 636(e) . . . , which provides, inter alia, that, under the circumstances of
this matter[1], ‘the magistrate judge shall forthwith certify the facts to a district
judge and may serve or cause to be served, upon any person whose behavior is
brought into question under this paragraph, an order requiring such person to
appear before a district judge upon a day certain to show cause why that person
should not be adjudged in contempt by reason of the facts so certified.’ When the
facts have been certified, the ‘district judge shall thereupon hear the evidence as to
the act or conduct complained of and, if it is such as to warrant punishment, punish
such person in the same manner and to the same extent as for a contempt
committed before a district judge.’ ” Ferrara v. Nordev, LLC, 10-cv-5844, 2012 U.S.
Dist.

LEXIS

77304,

at

*2-*3

(E.D.N.Y.

Apr.

10,

2012)

(Report

and

Recommendation), adopted, 2012 U.S. Dist. LEXIS 77309 (E.D.N.Y. May 30, 2012)
(quoting 28 U.S.C. § 636).

In this regard, the magistrate judge “functions only to

certify the facts and not to issue an order of contempt.” Id. at *3 (citing Hunter
TBA, Inc. v. Triple V Sales, 250 F.R.D. 116, 118 (E.D.N.Y. 2008)).

And, “[i]n

In other circumstances—for instance, where the parties have consented to the jurisdiction
of the magistrate judge—the certification process is inapplicable and the Court is empowered to
directly “exercise the civil contempt authority of the district court.” 28 U.S.C. § 636(e)(4).
1

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certifying the facts under Section 636(e), the magistrate judge’s role is ‘to determine
whether the moving party can adduce sufficient evidence to establish a prima face
case of contempt.’ ”

Hunter, 250 F.R.D. at 118 (quoting Church v. Steller, 35

F. Supp. 2d 215, 217 (N.D.N.Y. 1999)).
The “essential elements which must be established before a party can be held
in civil contempt” include: (i) an order that is clear and unambiguous; (ii) clear and
convincing proof of non-compliance with that order; and (iii) a showing that the
contemnor has not been reasonably diligent and energetic in attempting to
accomplish what was ordered.

See id. at 119 (internal citations and quotation

marks omitted).
III.

Analysis
A.

Duncan is Directed to Comply with the Funds’ Discovery
Requests

Plaintiffs’ motion to compel is granted. The Court finds that the Funds are
entitled to seek post-judgment discovery under FRCP 69, and that the discovery
devices thus far employed for that purpose are proper. The Court further concludes
that Duncan’s failure to either object in good faith or comply with any of Plaintiffs’
requests is willful.

See Ferrara, 2012 U.S. Dist. LEXIS 22443, at *4 (finding

defendant’s failure to comply with post-judgment discovery willful and granting
motion to compel where, after default judgment was entered, defendant failed to
appear for deposition or to respond to subpoenas). Accordingly, that portion of the
Funds’ motion seeking to compel responses to Plaintiffs’ document demands, as well
as Duncan’s appearance at a deposition, is granted. Consequently, Duncan shall
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respond to Plaintiff’s document demands and produce all documents responsive
thereto no later than July 24, 2015. In addition, Mr. Duncan or an appropriate
representative of Defendant with comparable knowledge of Defendants’ assets and
ownership interests shall appear for a deposition no later than August 7, 2015, at
the offices of Virginia & Ambinder LLP, 40 Broad Street, 7 th Floor, New York, New
York 10004.
Plaintiffs are directed to serve copies of this Order upon the corporate
Defendant at its last known address, and to Mr. Duncan, individually, at the
address he provided and file proof of service with the Court.
B.

There is No Present Basis for Certifying Facts Relating to
Contempt

It is this Court’s province to determine in the first instance whether the
Funds can “adduce sufficient evidence to establish a prima face case of contempt.”
Under the present circumstances, they cannot. As the above-recited elements make
plain, a clear and unambiguous order of the Court, compliance with which has been
defied, are factual prerequisites to maintaining a civil contempt claim. As no such
order has yet issued, there is no rational basis at this juncture for finding Duncan in
contempt. As such, that portion of the instant motion seeking a finding of contempt
and related monetary penalties is denied without prejudice and with leave to renew
at a later date, if necessary.
Dated:

Central Islip, New York
June 26, 2015

s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge

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