Kerr v. John Thomas Financial et al

Filing 239

CERTIFICATION OF FACTS, CONCLUSIONS OF LAW AND PROPOSED REMEDY: By notice of motion dated September 19, 2016, plaintiff seeks an order holding defendant Anastasios Belesis in civil contempt for failure to satisfy a money judgment, failure to comply with subpoenas and committing perjury, pursuant to Fed.R.Civ.P. 37 and N.Y. C.P.L.R. § 5104 (Docket Item ("D.I.") 119). (As further set forth in this Order.) Accordingly, I decline to certify the facts as constituting contempt and re commend that Belesis' request for fees and costs be denied. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. Objections to R&R due by 2/17/2017 (Signed by Magistrate Judge Henry B. Pitman on 2/3/2017) Copies Sent By Chambers (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
DR. EUBULUS J. KERR, III,
Plaintiff,

:
14 Civ. 9168 (KBF)(HBP)

:

-against-

:

CERTIFICATION OF FACTS,
CONCLUSIONS OF LAW
AND PROPOSED REMEDY

:
JOHN THOMAS FINANCIAL, et al.,
:
Defendants.

:

-----------------------------------X

PITMAN, United States Magistrate Judge:

TO THE HONORABLE KATHERINE B. FORREST, United States
District Judge,

I.

Introduction

By notice of motion dated September 19, 2016, plaintiff
seeks an order holding defendant Anastasios Belesis in civil
contempt for failure to satisfy a money judgment, failure to
comply with subpoenas and committing perjury, pursuant to
Fed.R.Civ.P. 37 and N.Y. C.P.L.R. § 5104 (Docket Item ("D.I.")
119).
In the absence of the parties' consent to a magistrate
judge's exercising plenary jurisdiction pursuant to 28 U.S.C. §
636(c), a magistrate judge can neither grant nor deny a motion

for contempt.

As explained by the Honorable John G. Koeltl,

United States District Judge, a magistrate judge's role with
respect to such a motion is limited by 28 U.S.C. § 636(e)(6) to
certifying or declining to certify the facts as constituting
contempt:
[28 U.S.C. § 636(e)(6)] provides that a United States
Magistrate Judge shall, in a case other than one over
which the magistrate judge presides with the consent of
the parties under 28 U.S.C. § 636(c) or a misdemeanor
case proceeding before the magistrate judge under 18
U.S.C. § 3401, certify facts constituting civil contempt to the district judge. See 28 U.S.C. §
636(e)(6)(A), (e)(6)(B)(iii). The magistrate judge may
also issue an order requiring the individual found to
have committed the acts in question to show cause
before the district court why the individual should not
be adjudged in contempt of court. See 28 U.S.C. §
636(e)(6).
Where the magistrate judge has certified facts
constituting contempt, the district court must make an
independent determination of the facts certified and
consider any additional evidence. See 28 U.S.C. §
636(e)(6). The determination of whether the conduct
constitutes contempt and, if so, what sanctions are
appropriate are left to the discretion of the district
court. 28 U.S.C. § 636(e)(6)(B).
JSC Foreign Econ. Ass'n Technostroyexport v. International Dev. &
Trade Servs., Inc., 03 Civ. 5562 (JGK)(AJP), 2006 WL 1148110 at
*1 (S.D.N.Y. Apr. 28, 2006); see also Hunter TBA, Inc. v. Triple
V Sales, 250 F.R.D. 116, 117-18 (E.D.N.Y. 2008); Jones v. J.C.
Penney's Dep't Stores, Inc., 228 F.R.D. 190, 198 (W.D.N.Y. 2005).

2

For the reasons set forth below, I decline to certify
the facts as constituting contempt.

II.

Facts

A.

Background

The facts that give rise to this action are set forth
in detail in the Opinion and Order of the Honorable Katherine B.
Forrest, United States District Judge, dated July 16, 2015 (D.I.
88), granting plaintiff's motion to confirm a Financial Industry
Regulatory Authority ("FINRA") arbitration award against the
defendants.

Familiarity with that opinion is assumed.

I recite

the facts here only to the extent necessary for an understanding
of the dispute before me.
On August 5, 2014, a FINRA arbitration resulted in an
award of $920,107.96 in favor of plaintiff and against the
defendants (the "Award") (Amended Petition to Confirm Arbitration
Award and Entry of Judgment thereon, dated Jan. 8, 2015 (D.I. 12)
("Petition") ¶ 13).

Belesis and two other defendants were found

to be liable, jointly and severally, for $915,107.96 of the
Award; defendant Joseph Castellano was found to be liable for
$5,000.00 of the Award (Petition ¶ 13).

On October 20, 2014,

plaintiff commenced an action in Supreme Court, New York County,

3

seeking to confirm the Award (Notice of Removal, filed Nov. 18,
2014 (D.I. 1) ("Notice of Removal") ¶ 1).

The defendants removed

the action to this court on November 18, 2014 (Notice of Removal).
On July 16, 2015, Judge Forrest granted plaintiff's
motion to confirm the Award (Opinion and Order, dated July 16,
2015 (D.I. 88)), and a judgment confirming the Award was entered
on July 22, 2015 (the "Judgment") (Judgment, dated July 22, 2015
(D.I. 89)).1
In an effort to enforce the Judgment, on October 21,
2015, plaintiff attempted to serve Belesis with an information
subpoena, pursuant to N.Y. C.P.L.R. Rule 5224, and a subpoena for
documents, pursuant to Fed.R.Civ.P. 45 (Declaration of Brian J.
Neville, Esq., dated Sept. 16, 2016 (D.I. 119-2) ("Neville
Decl.") ¶¶ 6-7; Neville Decl., Ex. A).

According to plaintiff,

"[s]ervice was effected upon [Belesis'] doorman" (Neville Decl. ¶
6).

Belesis did not respond to the subpoenas despite repeated

demands from plaintiff (Neville Decl. ¶ 8).
Plaintiff deposed Belesis on December 11, 2015 (Neville
Decl. ¶ 12; Neville Decl., Ex. C).

1

Belesis testified that he had

An amended judgment, stating a sum certain, was subsequently entered on July 7, 2016 (Amended Judgment, dated July 7,
2016 (D.I. 103)).
4

conveyed all of his assets to his wife in 2012 and 2013 (Neville
Decl. ¶ 13; Neville Decl., Ex. C, at 27:20-32:13).

He further

testified that he owned no assets (Neville Decl. ¶ 14; Neville
Decl., Ex. C, at 89:14-22).
On April 19, 2016, plaintiff again attempted to serve
Belesis with an information subpoena and a subpoena for documents
(Neville Decl. ¶¶ 9-10; Neville Decl., Ex. B).

According to

plaintiff, "[s]ervice was effected upon [Belesis'] doorman"
(Neville Decl. ¶ 9).

Again, Belesis did not respond to the

subpoenas despite repeated demands from plaintiff (Neville Decl.
¶ 11).
On August 18, 2016, plaintiff served an information
subpoena and a subpoena duces tecum on Titan Capital ID, LLC
("Titan"),2 pursuant to N.Y. C.P.L.R. § 5223 and Rule 5224
(Neville Decl. ¶ 15; Neville Decl., Ex. D).

Titan responded on

September 7, 2016 and provided, among other things, a Personal
Financial Statement executed by Belesis on April 21, 2016 (Neville Decl. ¶ 15; Neville Decl., Exs. E & F).

2

In this Personal

Titan allegedly provided a loan secured by a mortgage on
property owned by TomTab LLC, a limited liability corporation
owned by Belesis' wife (Complaint, dated Oct. 17, 2016 (D.I. 173)
¶¶ 12, 18). Belesis is alleged to have signed the mortgage as a
guarantor on the loan (Complaint ¶ 18). Plaintiff claims that
Belesis did not use the proceeds of the loan to satisfy the
Judgment; instead, the proceeds were paid to TomTab LLC (Neville
Decl. ¶¶ 16-17).
5

Financial Statement, Belesis listed his assets, totaling
$144,148,400, and stated that he had a total net worth of
$141,608,400 (Neville Decl., Ex. F).
More than two years after FINRA issued the Award,
Belesis paid the amount owed in November 2016 (Order, dated Nov.
14, 2016 (D.I. 209)).

B.

Conclusions of Law

As the late Honorable Constance Baker Motley, United
States District Judge, explained in D'Orange v. Feely, 959 F.
Supp. 631, 634-35 (S.D.N.Y. 1997):
It is a firmly established principal that federal
courts possess the inherent power to punish for contempt. [S]ee, Chambers v. NASCO, Inc., 501 U.S. 32,
43, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991)
("Courts of justice are universally acknowledged to be
vested, by their very creation, with power to impose
silence, respect, and decorum, in their presence, and
submission to their lawful mandates." (quotation omitted); Young v. United States ex rel. Vuitton et Fils,
S.A., 481 U.S. 787, 795, 107 S. Ct. 2124, 2131, 95 L.
Ed. 2d 740 (1987); Abrams v. Terry, 45 F.3d 17 (2d Cir.
1995). These powers reach conduct before the court and
beyond the court's confines, Young, 481 U.S. at 798,
107 S. Ct. at 2132-33, and are "governed not by rule or
statute but by the control necessarily vested in courts
to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers,
501 U.S. at 43, 111 S. Ct. at 2132 (quoting Link v.
Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S. Ct. 1386,
1388-89, 8 L. Ed. 2d 734 (1962)).

6

See also CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91, 98 (2d
Cir. 2016); Mitchell v. Lyons Prof'l Servs., Inc., 708 F.3d 463,
467 (2d Cir. 2013); Southern New England Tel. Co. v. Global NAPs
Inc., 624 F.3d 123, 144 (2d Cir. 2010); Israel v. Carpenter, 95
Civ. 2703 (JCF), 2003 WL 21518830 at *2 (S.D.N.Y. July 7, 2003)
(Francis, M.J.).
The standards applicable to a motion for civil contempt
are well settled and require only brief review.

As the Court of

Appeals for the Second Circuit explained in Paramedics
Electromedicina Comercial, Ltda. v. GE Medical Systems Information Technologies, Inc., 369 F.3d 645, 655 (2d Cir. 2004):
A party may be held in civil contempt for failure
to comply with a court order [or subpoena] if "(1) the
order [or subpoena] 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." King v. Allied Vision, Ltd., 65 F.3d 1051,
1058 (2d Cir. 1995). It need not be established that
the violation was willful. Donovan v. Sovereign Sec.
Ltd., 726 F.2d 55, 59 (2d Cir. 1984).
See also CBS Broad. Inc. v. FilmOn.com, Inc., supra, 814 F.3d at
98; In re Doe, 317 F. App'x 54, 55-56 (2d Cir. 2009) (summary
order); Perez v. Danbury Hosp., 347 F.3d 419, 423-24 (2d Cir.
2003); E.E.O.C. v. Local 638, 81 F.3d 1162, 1171 (2d Cir. 1996);
Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995).

The

movant bears the burden of proving contempt by clear and convinc-

7

ing evidence.

Latino Officers Ass'n City of N.Y., Inc. v. City

of New York, 558 F.3d 159, 164 (2d Cir. 2009).

"In the context

of civil contempt, the clear and convincing standard requires a
quantum of proof adequate to demonstrate a reasonable certainty
that a violation occurred."

Levin v. Tiber Holding Corp., 277

F.3d 243, 250 (2d Cir. 2002) (internal quotation marks omitted).
"The only defenses to civil contempt are that (1) the
order [or subpoena] allegedly violated is unclear; (2) the party
charged with contempt had no knowledge of the order [or subpoena]
or (3) proof of noncompliance fails to meet the clear and convincing standard of proof."

JSC Foreign Econ. Ass'n

Technostroyexport v. Int'l Dev. & Trade Servs., Inc., 03 Civ.
5562 (JGK)(AJP), 2006 WL 1206372 at *6 (S.D.N.Y. May 1, 2006)
(Koeltl, D.J.), citing Levin v. Tiber Holding Co., supra, 277
F.3d at 251.
The burden is on the alleged contemnor to prove his
inability to comply with the order or subpoena "clearly, plainly,
and unmistakably."

Huber v. Marine Midland Bank, supra, 51 F.3d

at 10; accord Close-Up Int'l, Inc. v. Berov, 474 F. App'x 790,
795 (2d Cir. 2012) (summary order).

Further, a "court is not

required to credit the alleged contemnor's denials if it finds
them to be 'incredible in context'"; in addition, "[c]onclusory
statements are inadequate to carry [the putative contemnor's]
8

burden."

Huber v. Marine Midland Bank, supra, 51 F.3d at 10

(citations omitted).

1.

Failure to Pay
the Money Judgment

"Pursuant to Federal Rule of Civil Procedure 69(a)(1),
money judgments are enforced by entry of judgment and writ of
execution, not by a contempt order absent exceptional circumstances."

Nykcool A.B. v. Pacific Fruit Inc., 10 Civ. 3867

(LAK)(AJP), 2012 U.S. Dist. LEXIS 52690 at *27 (S.D.N.Y. Apr. 16,
2012) (Peck, M.J.) (Report & Recommendation), objections overruled by, 2012 U.S. Dist. LEXIS 152925 (S.D.N.Y. May 9, 2012)
(Kaplan, D.J.); see Aetna Cas. & Sur. Co. v. Markarian, 114 F.3d
346, 349 (1st Cir. 1997); Hilao v. Estate of Marcos, 95 F.3d 848,
854-55 (9th Cir. 1996); Combs v. Ryan's Coal Co., 785 F.2d 970,
980 (11th Cir. 1986) ("It is . . . clear that when a party fails
to satisfy a court-imposed money judgment the appropriate remedy
is a writ of execution, not a finding of contempt."), citing
Shuffler v. Heritage Bank, 720 F.2d 1141, 1147-48 (9th Cir.
1983); Ecopetrol S.A. v. Offshore Expl. & Prod. LLC, 172 F. Supp.
3d 691, 695-98 (S.D.N.Y. 2016) (Koeltl, D.J.); Frazier v. APM
Fin. Solutions, LLC, No. 3:11cv1762 (AWT), 2015 WL 8483237 at *3
(D. Conn. Dec. 9, 2015); Ciaprazi v. County of Nassau, No. 98-cv-

9

6286 (ADS), 2012 WL 95374 at *3 (E.D.N.Y. Jan. 12, 2012); 13
Moore's Federal Practice § 69.02 (2016) (because of Fed.R.Civ.P.
69(a)(1), "enforcement [of a money judgment] through the imposition of a contempt sanction would not be authorized absent
exceptional circumstances").

"'[T]he size of the award and the

difficulties in enforcing the judgment due to . . . the
uncooperativeness of the judgment debtor are not the types of
extraordinary circumstances which warrant departure from the
general rule" that money judgments are not enforced by an order
of contempt.

Nykcool A.B. v. Pacific Fruit Inc., supra, 2012

U.S. Dist. LEXIS 52690 at *29-*30 (first alteration in original),
quoting Aetna Cas. & Sur. Co. v. Markarian, supra, 114 F.3d at
349 n.4.3

Moreover, Belesis has paid the Judgment.

Therefore,

Belesis cannot be held in contempt for failure to satisfy the
Judgment.

3

Although there are cases in which a party was held in
contempt for failing to pay a judgment, e.g., Schwarz v.
ThinkStrategy Capital Mgmt. LLC, 09 Civ. 9346 (PAE), 11 Civ. 8094
(PAE), 2015 WL 4040558 at *1, *7, *10-*22 (S.D.N.Y. July 1, 2015)
(Engelmayer, D.J.); Securities & Exch. Comm'n v. Montle, 248 F.
Supp. 2d 271, 273, 279-81 (S.D.N.Y. 2003) (Pollack, D.J.);
Securities & Exch. Comm'n v. Margolin, 92 Civ. 6307 (PKL), 1996
WL 447996 at *2-*5 (S.D.N.Y. Aug. 8, 1996) (Leisure, D.J.), it
does not appear that any party in those cases raised an issue
concerning the availability of contempt for failure to pay a
judgment.
10

2.

Failure to Comply
with Subpoenas

Under Federal Rule of Civil Procedure 69(a)(2), a
judgment creditor may obtain post-judgment discovery in aid of
execution as provided under either the Federal Rules of Civil
Procedure or by the laws of the state in which the federal court
sits.
A party may serve a subpoena for documents pursuant to
Federal Rule of Civil Procedure 45.

Although Rule 45(g) permits

a court to hold a person in contempt for failure to obey a
subpoena "without adequate excuse," "courts in the Second Circuit
have often held that . . . a court should first issue an order
compelling compliance with the subpoena."

In re Application of

Kingdom of Morocco, M8-85 (KMW), 2009 WL 1059786 at *2 (S.D.N.Y.
Apr. 16, 2009) (Wood, D.J.); see Sheet Metal Workers' Nat'l
Pension Fund v. Rhb Installations, Inc., No. CV 12-2981 (JS)(ARL), 2016 WL 128153 at *2 (E.D.N.Y. Jan. 12, 2016) ("'In civil
litigation, it [is] rare for a court to use contempt sanctions
without first ordering compliance with a subpoena.'" (alteration
in original)), citing Advisory Committee Notes to 2013 Amendment
to Fed.R.Civ.P. 45.

This practice is followed because "[a]n

order of contempt leading to the impositions of sanctions is a
drastic remedy."

Sanchez v. Pathmark Stores, Inc., 04 Civ. 1159
11

(GBD)(RLE), 2009 WL 398103 at *1 (S.D.N.Y. Feb. 17, 2009) (Ellis,
M.J.) (internal quotation marks omitted); see also Southern New
England Tel. Co. v. Global NAPs Inc., supra, 624 F.3d at 145
("[A] contempt order is . . . a potent weapon, to which courts
should not resort where there is a fair ground of doubt as to the
wrongfulness of the defendant's conduct." (internal quotation
marks omitted)).
Additionally, New York law requires a court order
before a failure to comply with an information subpoena is
punishable by contempt.

Under New York law, a judgment creditor

can use an information subpoena to compel disclosure of information relevant to satisfaction of a judgment.
5223, Rule 5224(a)(3).

N.Y. C.P.L.R. §

"If the recipient does not comply [with

the subpoena], the judgment creditor cannot immediately move for
contempt under New York law; instead, as it is a nonjudicial
subpoena, the enforcement of an information subpoena is governed
by N.Y. C.P.L.R. § 2308(b)," which provides that the proponent
must first move to compel compliance.

Soundkillers LLC v. Young

Money Entm't, LLC, 14 Civ. 7980 (KBF)(DF), 2016 WL 4990257 at *3
(S.D.N.Y. Aug. 2, 2016) (Freeman, M.J.) (Report & Recommendation), adopted by, 2016 WL 4926198 (S.D.N.Y. Sept. 15, 2016)
(Forrest, D.J.), citing AXA Equitable Life Ins. Co. v. Epstein,

12

29 Misc.3d 689, 691, 907 N.Y.S.2d 601, 603 (Sup. Ct. N.Y. Cty.
2010).4
Belesis should not be held in contempt for his failure
to comply with the information subpoenas and the subpoenas for
documents.

First, as the authorities in the preceding paragraphs

teach, civil contempt is not ordinarily imposed for a party's
disregard of a subpoena; civil contempt is most frequently
imposed only when a party disregards an order directing compliance with a subpoena.

Second, plaintiff failed to provide proof

that any of the subpoenas were ever actually served on Belesis or
that Belesis ever received them; instead, plaintiff's attorney
simply declared that "[s]ervice was effected upon [Belesis']
doorman" (Neville Decl. ¶¶ 6, 9).

Such service is insufficient.

E.g., Federal Ins. Co. v. CAC of N.Y., Inc., No. 14-CV-4132
(DRH)(SIL), 2016 WL 1559153 at *2 (E.D.N.Y. Apr. 18, 2016); Jack
Mailman & Leonard Flug DDS, PC v. Belvecchio, 195 Misc.2d 275,
276, 757 N.Y.S.2d 216, 216-17 (2d Dep't 2002); Dashiff v. Grant,
15 Misc.3d 1102(A), 841 N.Y.S.2d 819 (Table), 2007 WL 737497 at
*1 (Dist. Ct. Nassau Cty. Mar. 12, 2007); accord Fed.R.Civ.P.

4

N.Y. C.P.L.R. § 5104, which plaintiff cites in support of
his motion for contempt, is not applicable here. That provision
states that a final judgment that is not enforceable under
Article 52 (money judgments) may be enforced by contempt.
However, the Judgment is enforceable under Article 52.
13

45(b)(1) ("Serving a subpoena requires delivering a copy to the
named person . . . ."); N.Y. C.P.L.R. §§ 308, 2303 (information
subpoena can be served by delivering the subpoena to a person of
"suitable age and discretion at the . . . dwelling place or usual
place of abode of the person to be served and by . . . mailing
the [subpoena to the] person to be served" (emphasis added));
Kenyon v. Simon & Schuster, Inc., 16 Misc. 327 (P1) (JFK), 2016
WL 5930265 at *3-*4 (S.D.N.Y. Oct. 11, 2016) (Keenan, D.J.)
("[T]he weight of authority in this Circuit requires first a
diligent attempt to personally serve [a subpoena pursuant to
Fed.R.Civ.P. 45 on] the commanded person" before attempting
alternative forms of service); Simmons v. Fervent Elec. Corp.,
No. 14-CV-1804 (ARR)(MDG), 2016 WL 3661274 at *1 (E.D.N.Y. July
5, 2016) ("[T]hose courts that have sanctioned alternative means
of service have done so only after the plaintiff had diligently
attempted to effectuate personal service . . . . [N]either the
process server's affidavit nor defendants' application [describing service of subpoenas by leaving them with the deponent's wife
and then mailing copies of them to the deponent] are sufficient
to demonstrate that defendants diligently attempted to effectuate
personal service on the deponent prior to resorting to alternative means of service . . . ."; declining to grant motion for
contempt for failure to comply with subpoenas as a result).
14

3.

Perjury

Perjury is "[t]he act or an instance of a person's
deliberately making false or misleading statements while under
oath."

Black's Law Dictionary 1321 (10th ed. 2014).

Although

the inconsistency between Belesis' deposition testimony and the
representations in his financial statement is troubling, it
cannot serve as the basis for a finding of perjury.

Plaintiff's

only proof of Belesis' alleged perjury is an unsworn Personal
Financial Statement, the truth of which has not been established.5

This cannot constitute clear and convincing evidence of

perjury.

See Mason v. Phillips, 548 F. Supp. 674, 675 (S.D.N.Y.

1982) (Weinfeld, D.J.) (inconsistency between trial testimony and
previous unsworn statement "merely raised an issue of credibility").

5

Belesis argues that the Personal Financial Statement should
not be considered because the subpoena to Titan improperly sought
Belesis' wife's independent financial information (Memorandum of
Law in Opposition to the Motion for Contempt and for Sanctions,
dated Oct. 11, 2016 (D.I. 153) ("Def.'s Mem."), at 7; Letter from
Lawrence E. Tofel, Esq., to Judge Forrest, dated Oct. 11, 2016
(D.I. 145)). However, the subpoena also sought Belesis' financial information, and the Personal Financial Statement concerned
Belesis' assets.
15

4.

Belesis' Fees
and Costs

Belesis seeks his fees and costs in opposing plaintiff's motion, pursuant to Fed.R.Civ.P. 37(a)(5)(B) (Def.'s Mem.,
at 3, 16).

Rule 37(a)(5)(B) provides that if a court denies a

motion to compel discovery, it "must, after giving an opportunity
to be heard, require the movant, the attorney filing the motion,
or both to pay the party . . . who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees."

However, "the court must not order this payment if

the motion was substantially justified or other circumstances
make an award of expenses unjust."

Fed.R.Civ.P. 37(a)(5)(B).

Belesis' request for costs and fees should be denied.
Belesis' frivolous conduct to frustrate enforcement of the
Judgment is well known to the Court and should not be rewarded.
Plaintiff's motion was substantially justified and was not
baseless.

See Dorchester Fin. Holdings Corp. v. Banco BRJ, S.A.,

11 Civ. 1529 (KMW)(KNF), 2014 WL 3747160 at *8 (S.D.N.Y. July 3,
2014) (Fox, M.J.).

16

III.

Conclusion

Accordingly, I decline to certify the facts as constituting contempt and recommend that Belesis' request for fees and
costs be denied.

IV.

Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.

See also Fed.R.Civ.P. 6(a).

Such objections (and

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Katherine B. Forrest, United States District Judge, 500 Pearl
Street, Room 2230, and to the Chambers of the undersigned, 500
Pearl Street, Room 1670, New York, New York 10007.

Any requests

for an extension of time for filing objections must be directed
to Judge Forrest.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS

WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
REVIEW.

Thomas v. Arn, 474 U.S. 140, 155 (1985); United States

v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank
v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair

17

Ltd.,

838 F.2d 55,

F . 2 d 2 3 4 , 2 3 7- 3 8

Dated:

57-59

(2d Cir. 1988); McCarthy v. Manson,

( 2 d C i r . 19 8 3 )

714

(~ curiam) .

New York, New York
February 3, 2017
Respectfully submitted,

HENRY PI MAN
United States Magistrate Judge

Copies transmitted to:
All counsel

18