Trustees of the Teamsters Local 456 Pension, Health & Welfare, Annuity, Education & Training, S.U.B., Industry Advancement and Legal Services Funds et al v. A.G. Construction Corporation

Filing 35

OPINION AND ORDER re: 29 MOTION for Sanctions and for Contempt filed by Trustees of the Teamsters Local 456 Pension, Health & Welfare, Annuity, Education & Training, S.U.B., Industry Advancement and Legal Services Funds, the Westc hester Teamsters Local Union No. 456. For the reasons set forth above, Plaintiffs' motion for contempt is GRANTED. The Clerk of Court is respectfully directed to terminate the motion, Doc. 29. (As further set forth in this Opinion and Order.) (Signed by Judge Edgardo Ramos on 2/14/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TRUSTEES OF THE TEAMSTERS LOCAL 456
PENSION, HEALTH & WELFARE ANNUITY,
EDUCATION & TRAINING, S.U.B.,
INDUSTRY ADVANCEMENT AND LEGAL
SERVICES FUNDS and THE WESTCHESTER
TEAMSTERS LOCAL UNION NO. 456,

OPINION AND ORDER
12 Civ. 2994 (ER)

Plaintiffs,
- against A.G. CONSTRUCTION CORPORATION , a/k/a
A.G. CONSTRUCTION OF NEW JERSEY,
Defendant.

Ramos, D.J.:
Plaintiffs, the Trustees of the Teamsters Local 456 Pension, Health & Welfare Annuity,
Education & Training, S.U.B., Industry Advancement and Legal Services Funds and the
Westchester Teamsters Local Union NO. 456 brought this action against Defendant A.G.
Construction Corporation seeking payment for unpaid contributions owed to the benefit funds.
On August 10, 2012, the Court issued a default judgment against Defendant. Before the Court is
Plaintiffs’ motion for civil contempt pursuant to Federal Rule of Civil Procedure 45(g).
For the reasons stated below, Plaintiffs’ motion for contempt is GRANTED.
I. Procedural Background
Plaintiffs filed the Complaint on April 16, 2012. (Doc. 1) Defendant was served on May
2, 2012. (Doc. 2) On June 27, 2012, Plaintiffs filed a request for the Court to enter a default
judgment due to Defendant’s failure to appear or answer the Summons and Complaint. (Doc. 3)

Two days later, on June 29, the Court issued an Order to Show Cause ordering Defendant to
appear for a conference to explain why default judgment should not be entered against it. (Doc.
4) The Order to Show Cause was amended and Defendant was ordered to appear on August 10,
2012. (Doc. 5) The Show Cause hearing was held, but neither Defendant, nor its counsel,
appeared. Consequently, that day, the Court entered a default judgment against Defendant in the
amount of $261,516.01 (the “Judgment”). (Doc. 7)
Attempting to enforce the Judgment, on December 16, 2015, Plaintiffs filed a letter
motion seeking to compel Defendant’s Chief Executive Officer Antonio Goncalves to respond to
Plaintiffs’ post-judgment discovery requests and appear for a deposition. (Doc. 11) In the letter,
Plaintiffs explained that Goncalves was personally served with a copy of a subpoena to testify at
a deposition and appeared at Plaintiffs’ office requesting additional time to obtain counsel for the
deposition. Id. On April 30, 2015, Michael A. McLaughlin, Esq., who indicated that he was
counsel for Goncalves, contacted Plaintiffs and requested copies of the Complaint and the
Judgment. Plaintiffs promptly emailed Mr. McLaughlin the documents requested and inquired
about Goncalves’s availability for a deposition. Id. Plaintiffs claim that Mr. McLaughlin did not
respond to their email or any subsequent requests for discovery. Id. Consequently, Plaintiffs
sought an order directing Goncalves to respond to discovery requests and appear for a
deposition. Id. On December 18, 2015, Magistrate Judge Paul E. Davison issued the order to
compel.
More than two months later, Plaintiffs filed a letter requesting a pre-motion conference to
seek leave to file a motion for civil contempt against Goncalves for failure to comply with the
subpoena and Magistrate Judge Davison’s order. (Doc. 20) The Court granted Plaintiffs’
request and scheduled a conference for March 15, 2016. (Doc. 22) Though the pre-motion
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conference was held, Defendant, Defendant’s counsel, Goncalves, and his counsel did not
appear. As a result, the Court issued an Order directing Goncalves to produce all documents
sought in the subpoena by April 7, 2015 and appear for a deposition on April 28, 2016. (Doc.
24) The Order further warned Goncalves that “failure to comply with this order may result in a
finding of contempt and such punishment may consist of a fine or imprisonment or both
according to law.” Id. However, neither Goncalves nor his counsel appeared for the deposition
on April 28, 2016. See Declaration of Jonathan Bardavid in Support of Plaintiffs’ Motion for
Contempt (“Bardavid Decl.”) (Doc. 30) Ex. E.
On May 19, 2016, after receiving no response from Defendant or Goncalves, Plaintiffs
filed the instant motion. (Doc. 29) Plaintiffs request that the Court hold Goncalves in contempt
and impose a fine of $250.00 and award Plaintiffs’ attorneys’ fees and expenses in the amount of
$5,387.56. Id. To date, neither Defendant nor Goncalves has filed a response to Plaintiffs’
motion nor appeared before this Court.
II. Discussion
Federal Rule of Civil Procedure 45(g) provides that a 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.” Fed. R. Civ. P. 45. “A contempt order is warranted only where the moving party
establishes by clear and convincing evidence that the alleged contemnor violated the district
court’s edict.” Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd., No. 07 Civ. 7983
(DAB), 2014 WL 1201905, at *3–4 (S.D.N.Y. Mar. 24, 2014) (citing Hart Schaffner & Marx v.
Alexander’s Dep't Stores, Inc., 341 F.2d 101, 102 (2d Cir. 1965) (per curiam )). A movant must
establish that (1) the order the contemnor failed to comply with is clear and unambiguous, (2) the

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proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently
attempted to comply in a reasonable manner. See Nimkoff, 2014 WL 1201905, at *4 (citing New
York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1351 (2d Cir.1989)).
Here, it is clear from the record that Goncalves has failed to comply with the Court’s
orders. First, the orders from both this Court and Magistrate Judge Davison were clear and
unambiguous. The orders simply directed Goncalves to either appear for a conference or
produce discovery pursuant to the subpoena. Indeed, since December 2015, Goncalves has been
directed to appear or otherwise respond to Plaintiffs’ subpoena and discovery requests four
times. It is also clear from the docket that Goncalves has not responded, nor has he made any
attempt to respond, to any of the orders. As such, the Court holds Goncalves in contempt and
awards Plaintiffs their reasonable attorneys’ fees and costs. See Sprint Nextel Corp. v. Ace
Wholesale, Inc., No. 12 Civ. 2902 (JEC), 2014 WL 4308355, at *1–2 (S.D.N.Y. Aug. 26, 2014)
(holding defendant in contempt for failure to comply with plaintiffs’ subpoena and awarding
plaintiffs’ reasonable attorneys’ fees and costs).
Accompanying the motion, Plaintiffs have submitted a declaration detailing the
attorneys’ fees incurred attempting to secure production of the requested discovery. See
Bardavid Decl. Ex. G. The total amount of attorneys’ fees requested is $3,677.50. Plaintiffs also
assert that they have incurred $1,710.06 in costs associated with its enforcement attempts in
court reporter costs, service fees, and mailings. The Court finds that Plaintiffs’ request for
$5,387.56 is reasonable and hereby directs Goncalves to pay Plaintiffs’ attorneys that sum by
March 10, 2017.

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