Hanfords Creations, LLC v. Chagaris

Filing 149

ORDER CANCELLING the April 10, 2018 before the Clerk's designee, and the Clerk of Court's designee is relieved of responsibility for such proceeding. A RULE 69(a)(1) hearing in this matter is RESCHEDULED for 2:00pm o n May 10, 2018 in Courtroom 1 at the United States Courthouse in Asheville, NC before Judge Max O. Cogburn. Counsel for parties shall follow instructions as set forth in this Order. Signed by District Judge Max O. Cogburn, Jr on 4/5/2018. (chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:09-cv-00487-MOC-DCK
K.A. HOLDINGS LTD. OF NEW YORK,

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Plaintiff,
Vs.
CHRISTOPHER CHAGARIS,
Defendant.

ORDER

THIS MATTER is before the court on reference back to the presiding judge by the Clerk
of Court in accordance with Chapter 1-352 of the North Carolina General Statutes, which guide
this Court under Rule 69 of the Federal Rules of Civil of Procedure.
It appears from the pleadings that the execution upon this Court’s 2013 Judgment against
defendant has been returned unsatisfied and that defendant has not been cooperative in providing
information concerning his assets. In June 2017, plaintiff filed a “Motion for Defendant to Appear
and Answer Concerning his Property.” The Clerk of Court, who is charged under Rule 69 with
executions of Judgments, entered an Order on February 26, 2018, providing in relevant part as
follows:
(1)

A hearing before the Clerk’s designee on April 10, 2018, at 2 p.m.;

(2)

That plaintiff file a “detailed brief” by March 16, 2018, concerning a number of
matters; and

(3)

That defendant file a “detailed response” by March 30, 2018.

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Order (#148). Distressingly, the Clerk of Court reports that plaintiff did not comply with the March
16, 2018, deadline. Upon inquiry, Attorney Ty K. McTier, who signed the motion, informed the
Clerk of Court that he had never received the Order. Upon looking into the matter further, Mr.
McTier informed the Clerk of Court that the reason he never received the Order was that he never
entered a Notice of Appearance before filing the motion. Such misstep is a violation of L.CvR.
81.1(e). Review of the Court’s NEF entered upon the transmittal of that Order reveals, however,
that two attorneys of record for plaintiff (and who appear to work at the same firm as Mr. McTier)
received notification:
(1)

David G. Redding, at [e-mail] and at
[e-mail]), and

(2)

Joseph Raymond Pellington, at [e-mail].

While mistakes are made by all, including this Court, it is difficult to comprehend how three emails
to counsel of record for the moving party went unheeded, especially in light of the nature of this
action.
The Court will, therefore, take over this judgment enforcement proceeding as well as all
further ancillary matters under Chapter 1-352. Rather than impose a sanction, all counsel for both
sides will now be required to acknowledge receipt of this Court’s Orders and confirm compliance
therewith as outlined below.
ORDER
IT IS, THEREFORE, ORDERED that
(1)

The April 10, 2018, before the Clerk’s designee is CANCELLED, and the Clerk

of Court’s designee is relieved of responsibility for such proceeding;

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(2)

Counsel for Plaintiffs will FILE a detailed supporting brief that addresses the

issues raised by the Clerk of Court in his Order (#148) not later than April 13, 2018.
(3)

Counsel for Defendant will FILE a detailed Responsive brief not later than April

20, 2018.
(4)

Counsel will MEET AND CONFER -- with a goal of resolution of this dispute

and satisfaction of the Judgment -- not later than April 27, 2018. Such meet and confer
and the results of that meeting will be documented with a Notice of Compliance FILED
not later than May 4, 2018.
(5)

A Rule 69(a)(1) hearing in this matter is RESCHEDULED for May 10, 2018, at

the United States Courthouse in Asheville, North Carolina, at 2 p.m. At that hearing, the
Court will hear arguments and address the issues raised in plaintiff’s “Motion for
Defendant to Appear and Answer Concerning his Property Pursuant to Fed. R. Civ. P. 69
& N.C.G.S. § 1-352.” (#147). Specifically, the Court will consider whether defendant has
failed to answer or otherwise respond to discovery requests, why he should not be
compelled to answer or respond, and what if any sanction for such alleged non-compliance
should be imposed.
(a)

In aid of that inquiry, the defendant Mr. Chagaris shall ATTEND the

hearing (along with all counsel of record) and be prepared to give sworn testimony
concerning the existence and whereabouts of all assets.
(b)

Mr. Chagaris shall bring with him a Certified Financial Statement for his

business assets and a Personal Financial Statement concerning his personal assets. Absent

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such statements, Mr. Chagaris shall bring with him records showing the location and
amount of all assets as well as liabilities.
(6)

Counsel shall FILE a Notice of Receipt of this Order within three (3) business days

of receiving the NEF of this Order. If any attorney of record fails to file a Notice as required
by this Order or a Brief as required herein, the Clerk of Court shall bring such failure to
the immediate attention of the undersigned.

Signed: April 5, 2018

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