Broker Genius Inc. v. Seat Scouts LLC et al

Filing 532

MEMORANDUM AND ORDER granting 522 Motion to Enforce Judgment re: 516 Order on Motion to Enforce Judgment. Upon accepting defendants' invitation to reconsider its January 28 Order, this Court concludes that the motion fails because it d oes not meet "the Second Circuit's high standard for reconsideration under a strict construction of Local Rule 6.3." Nw. Nat. Ins. Co. v. Insco, Ltd., No. 11 CIV 1124, 2011 WL 5574953, at *2 (S.D.N.Y. Nov. 15, 2011). (as further set fo rth herein). Even if the Court were to construe defendants' submission as an opposition to Broker Genius's motion to certify the contempt judgment pursuant to 28 U.S.C. § 1963, the opposition fails. Seat Scouts and Gainor oppose the m otion by "incorporat[ing] by reference the arguments contained in Defendants' prior opposition to the first motion." (Def. Opp'n at 1.) For the reasons set forth in the Court's January 28 Order, Broker Genius's motion is granted and the Clerk of Court is directed to certify the contempt judgment dated August 12, 2019. Broker Genius is permitted to register the judgment in districts in which defendants have assets, including the District of Nebraska, the District of Delaware, the District of Massachusetts, the Eastern District of North Carolina, and the Northern District of California. SO ORDERED. (Signed by Judge Sidney H. Stein on 2/20/2020) (kv) Transmission to Orders and Judgments Clerk for processing.

~ijU8DCSDNY

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

L DOCUM:ENT
·

f, ELBCTRON1CAILY

FILED ;

tt· oc #: 8. /1.o l.~o~
o
ul BATE FILED:

~w--t--i----

~~-~-·.

BROKER GENIUS INC.,

,~.

Plaintiff,
17-Cv-8627 (SHS)

V.

SEAT SCOUTS LLC and DREW GAINOR,
Defendants.

MEMORANDUM &
ORDER

SIDNEY H. STEIN, U.S. District Judge.
On January 28, 2020, this Court granted Broker Genius's motion directing the Clerk
of Court to certify the trial judgment dated January 22, 2019 and permitting Broker
Genius to register that judgment in districts where defendants have assets pursuant to 28
U.S.C. § 1963. (Order Granting Plaintiff's Motion to Certify Judgment [hereinafter
"January 28 Order"], ECF No. 516.) Broker Genius now requests that the Court take the
same action with respect to the civil contempt judgment entered against defendants Seat
Scouts and Drew Gainor on August 12, 2019 in the amount of $280,039.03. (ECF No. 460.)
Seat Scouts and Gainor oppose Broker Genius's request. (Def. Mem. of Law in Opp'n
[hereinafter "Def. Opp'n"], ECF No. 526.) Defendants' submission, however, is in essence
a motion for reconsideration of the January 28 Order rather than an opposition to Broker
Genius's second motion. (See, e.g., Def. Opp'n at 1 ("This opposition specifically responds
to the Court's stated basis explained in the Court's January 28, 2020 Order, that we submit
[is] clear error and that the Court may wish to reconsider in adjudicating this motion.").)
The Court construes defendants' filing as a motion for reconsideration before addressing
the merits of Broker Genius's motion.
I.

DEFENDANTS' SUBMISSION CONSTRUED AS A MOTION FOR RECONSIDERATION

Seat Scouts and Gainor' s motion, construed as one for reconsideration, fails. A
motion for reconsideration may be granted only when "the moving party can point to
controlling decisions or data that the court overlooked-matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court." Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). "Alternatively, the movant must
demonstrate the need to correct a clear error or prevent manifest injustice." Griffin Indus.,
Inc. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999) (quotation marks omitted).
Because a motion for reconsideration "is not a substitute for appeal," Morales v. Quintiles

Transnat'l Corp., 25 F. Supp. 2d 369, 372 (S.D.N.Y. 1998), the legal standard "must be
narrowly construed and strictly applied so as to avoid repetitive arguments on issues that
have been considered fully by the Court," Hoffenberg v. Hoffman & Pollok, 296 F. Supp. 2d
504, 505 (S.D.N.Y. 2003) (quotation marks and citation omitted).
Defendants point to two instances where they believe the Court committed clear error.
First, Seat Scouts and Gainor contend that the Court incorrectly wrote that defendants
"d[o] not dispute that they have no assets in New York." (Def. Opp'n at 1.) Second,
defendants argue that the January 28 Order violates Article IV of the U.S. Constitution
because it fails to give the Nebraska court's judgment full faith and credit. (Id. at 3.)
Defendants are incorrect.
Seat Scouts and Gainor' s opposition to Broker Genius's first motion to certify includes
the following: "Broker Genius' application presents no good cause for the request, and is
supported by false claims. It starts with the incorrect statement that no assets are located
within this Court's jurisdiction to satisfy the judgments." (ECF No. 507 at 3.) Although
defendants' attorney thus sets forth in a memorandum of law, without any factual
support, that Broker Genius is "incorrect" that defendants have "no assets" in this
jurisdiction, they fail to substantiate that claim. Indeed, defendants fail to proffer the
existence of any New York assets whatsoever.
Defendants' statement, standing alone, is not sufficient to rebut the sworn declaration
and accompanying exhibits, submitted by Broker Genius's counsel, that indicate none of
defendants' assets are located in New York. (See Deel. of Veronica Mullally Munoz, ECF
No. 490.) "In the absence of contrary evidence, the affidavit in support of the judgment
creditors' motion should be presumed to be true." Owen v. Soundview Fin. Grp., Inc., 71
F. Supp. 2d 278, 279 (S.D.N.Y. 1999) (citing AT&T Corp. v. Pub. Serv. Enterp. of Pa., Inc.,
No. 98 CIV 6133, 1999 WL 672543, at *6 (S.D.N.Y. Aug. 24, 1999)). Neither defendant has
submitted an affidavit or declaration under penalty of perjury addressing the existence
or location of their assets.1 Accordingly, the Court's statement that "[d]efendants'
opposition does not dispute that they have no assets in New York" continues to hold true.
(See January 28 Order at 2.)
Next, defendants contend that the skepticism this Court expressed regarding their
business dealings with Pistol Enterprises LLC violates the full faith and credit clause.
(Def. Opp'n at 2.) Seat Scouts and Gainor urge that the Nebraska court has already
adjudicated "the merits of the Pistol transaction" and found the loan to be valid in its
Order of Default Judgment dated June 25, 2019. (Id.) To the extent that defendants claim

Seat Scouts and Gainor filed a declaration signed by Christopher Heisenberg in support of their
opposition to Broker Genius's first motion to certify, but this declaration does not address whether
defendants have assets in New York. (See ECF No. 506.)

1

2

that Pistol retains a perfected security interest in Seat Scouts' assets, this issue can be
raised in the district court where Broker Genius registers the judgment. Whether the asset
is encumbered is not part of the certification inquiry, which requires simply that the
judgment creditor establish "good cause" pursuant to 28 U.S.C. § 1963.
Upon accepting defendants' invitation to reconsider its January 28 Order, this Court
concludes that the motion fails because it does not meet "the Second Circuit's high
standard for reconsideration under a strict construction of Local Rule 6.3." Nw. Nat. Ins.
Co. v. Insco, Ltd., No. 11 CIV 1124, 2011 WL 5574953, at *2 (S.D.N.Y. Nov. 15, 2011). 2

II.

DEFENDANTS' SUBMISSION CONSTRUED AS AN

OPPOSITION TO BROKER

GENIUS'S MOTION TO CERTIFY THE CONTEMPT JUDGMENT

Even if the Court were to construe defendants' submission as an opposition to Broker
Genius' s motion to certify the contempt judgment pursuant to 28 U.S.C. § 1963, the
opposition fails. Seat Scouts and Gainor oppose the motion by "incorporat[ing] by
reference the arguments contained in Defendants' prior opposition to the first motion."
(Def. Opp'n at 1.) For the reasons set forth in the Court' s January 28 Order, Broker
Genius's motion is granted and the Clerk of Court is directed to certify the contempt
judgment dated August 12, 2019. Broker Genius is permitted to register the judgment in
districts in which defendants have assets, including the District of Nebraska, the District
of Delaware, the District of Massachusetts, the Eastern District of North Carolina, and
the Northern District of California.
Dated: New York, New York
February 20, 2020

In addition, Local Civil Rule 6.3 mandates that a motion for reconsideration be filed within 14 days after
the entry of a court's determination of the original motion. Defendants' opposition was filed on February
12, 2020, w hich is 15 days after the Court's January 22 Order. (See ECF No. 526.) It is thus untimely as a
motion for reconsideration.

2

3