Hindman LLC -v-Harry Mihaly et al

Filing 11

ORDER: The Court accordingly denies Hindman's motion. This ruling is without prejudice to Hindman's right to move to compel the discovery at issue, and in the event of non-compliance, to pursue all appropriate remedies. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 10/1/2021) (va)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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HINDMAN LLC,
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Plaintiff,
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-v:
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HARRY MIHALY, et al.,
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Defendants.
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21 MC 452 (PAE)
ORDER

PAUL A. ENGELMAYER, District Judge:
On December 4, 2020, plaintiff Hindman LLC (“Hindman”) obtained a default judgment
from the United States District Court for the Northern District of Illinois, Eastern Division,
against defendants Harry Mihaly (“Mihaly”), Harry Ehrenreich, and Yacov Ehrenreich (together,
“defendants”) in the amount of $427,933.76, plus post-judgment interest and costs. Dkt. 1 at 3.
On May 20, 2021, Hindman registered the judgment in this Court pursuant to 28 U.S.C. § 1963,
which provides that “[a] judgment so registered shall have the same effect as the judgment of the
district court of the district where registered and may enforced in a like manner.” 28 U.S.C. §
1963.
Hindman now moves to hold defendants Mihaly and Yacov Ehrenreich in contempt of
court; impose sanctions on them for failure to provide post-judgment discovery; award Hindman
further damages; and grant Hindman any other just and proper relief. See Dkts. 6, 9 (“Hindman
Mem.”). Because there is no order in effect requiring defendants to comply with those discovery
obligations, Hindman’s motion is denied, without prejudice.

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Federal Rule of Civil Procedure 69 provides that, “[i]n aid of [a] judgment or execution,
the judgment creditor . . . may obtain discovery from any person — including the judgment
debtor — as provided” elsewhere in the Rules or “by the procedure of the state where the court is
located.” Fed. R. Civ. P. 69(a)(2). Pursuant to that Rule, on June 7, 2021, Hindman served an
information subpoena and restraining order on Mihaly and Yacov Ehrenreich, shortly after it had
registered the judgment in this District. See Dkt. 8 (“Yudin Decl.”), ¶¶ 3, 12; id., Exs. C, I. On
June 8, 2021, Yacov Ehrenreich was served with an information subpoena and restraining notice.
Id. ¶ 12; see id. Ex. I. On June 15, 2021, Mihaly and Yacov Ehrenreich were separately served
with a subpoena duces tecum and a restraining notice directing them to appear at depositions on
August 4, 2021. Id. ¶¶ 6, 16; id. Exs. D, J. On July 27, 2021, additional copies of the
information subpoena and restraining notice and subpoena duces tecum and restraining notice
were served on Mihaly. Id. ¶ 7; id. Ex. E. On August 5, 2021, Hindman wrote to Mihaly and
Yacov Ehrenreich, rescheduling each of their depositions for August 25, 2021. Id. ¶¶ 9, 18; id.
Exs. F, K.
According to Hindman, Mihaly and Yacov Ehrenreich have “failed to provide any
documents or appear for deposition” and have “ignored all post-judgment discovery demands.”
Id. ¶¶ 11, 19. Thus, Hindman asks this Court to grant it relief, including by holding Mihaly and
Yacov Ehrenreich in contempt and by sanctioning them. The defendants have not appeared in
this action.
Hindman’s motion is denied. As noted above, Rule 69 allows a judgment creditor to
“obtain discovery . . . as provided in these rules . . .” Fed. R. Civ. P. 69(a)(2). But Hindman has
not sought to obtain discovery as such, at least according to its submissions on this motion. Rule
37 states that a party “may move for an order compelling disclosure or discovery,” and that

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motion “must include a certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery,” without intervention by
the Court. Fed. R. Civ. P. 37(a)(1). Hindman has not filed a motion to compel, or moved for
any action less severe than the contempt and sanctions it currently seeks. Although Hindman
rightly notes that courts have the power to enforce their own orders, including with sanctions or
by holding parties in contempt, Hindman Mem. at 9, Hindman fails to point to any such order
that this Court has issued and that defendants have violated. That is required under the Federal
Rules of Civil Procedure. Cf. Daval Steel Prod., a Div. of Francosteel Corp. v. M/V Fakredine,
951 F.2d 1357, 1364 (2d Cir.1991) (“[T]here must be a valid court order in force before
sanctions may be imposed pursuant to Rule 37(b)(2).”); Al Hirschfeld Found. v. Margo Feiden
Galleries Ltd., 438 F. Supp. 3d 203, 207 (S.D.N.Y. 2020).
The Court accordingly denies Hindman’s motion. This ruling is without prejudice to
Hindman’s right to move to compel the discovery at issue, and in the event of non-compliance,
to pursue all appropriate remedies.

SO ORDERED.

PaJA.�

____________________________
Paul A. Engelmayer
United States District Judge
Dated: October 1, 2021
New York, New York

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