Cargill, Incorporated v. WDS, Inc. et al

Filing 450

ORDER Denying 445 Motion to Withdraw or Dismiss this Court's Order to Show Cause. The Court STAYS consideration of this Courts June 22, 2018 Order to Show Cause for ninety (90) days. Signed by Chief Judge Frank D. Whitney on 7/27/2018. (jaw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-00848-FDW-DSC
CARGILL, INC., and CARGILL MEAT )
SOLUTIONS, CORP.,
)
)
Plaintiffs,
)
)
vs.
)
)
WDS, INC., JENNIFER MAIER, and )
BRIAN EWERT,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court on Jonathan D. Feit of James, McElroy & Diehl, P.A.’s
Motion to Withdraw or Dismiss this Court’s Order to Show Cause (the “Motion”). (Doc. No.
445). This Court issued an Order to Show Cause on June 22, 2018, ordering Mr. Feit to show
cause and appear before the Court on July 9, 2018. (Doc. No. 432). Mr. Feit appeared at the July
9, 2018 show cause hearing as ordered by the Court. Following this hearing, where Mr. Feit had
a full opportunity to respond and be heard, Mr. Feit filed this Motion on July 13, 2018. (Doc. No.
445). In the exercise of its discretion, the Court considers Mr. Feit’s Motion despite its filing after
the show cause hearing.
I. BACKGROUND1
On January 22, 2018, after a seven day trial, the jury found Defendants WDS, Inc., Jennifer
Maier, and Brian Ewert liable to Plaintiffs Cargill, Inc. and Cargill Meat Solutions, Corp.
(“Cargill”) for several claims and found for each of the claims that Cargill was entitled to recover

1

The Court summarizes the procedural background and relevant record in chronological order without regard to
timeliness. The Court’s summary is only provided to summarize the current record and does not constitute findings
of fact.

$35,177,269. (Doc. No. 314). In its Order addressing Defendants’ post-trial motions under
Federal Rules of Civil Procedure 50(b) and 59(a), the Court allowed judgment on the verdict on
all claims. (Doc. No. 366). Claims against Brian Ewert included conversion, fraud, conspiracy to
defraud Cargill or engage in commercial bribery that damaged Cargill, violation of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”) § 1962(a), (c), and (d), and violation of the
Unfair and Deceptive Trade Practices Act. (Doc. No. 366). The resulting amended judgment
against all Defendants, reflecting trebled/threefold damages, pre-judgment interest, attorneys’
fees, and taxable costs, totals $111,173,491.51. (Doc. No. 366). Eventually, a writ of execution
against Brian Ewert was entered on April 12, 2018. (Doc. No. 373). Cargill filed a Motion to
Charge Interests of Judgment Debtor Brian Ewert on April 13, 2018. (Doc. No. 375).
In addition to prior correspondences with subject lines referencing “Ewert” and “Cargill,”
on April 28, 2018, C. Richard Rayburn, Jr. of Rayburn Cooper & Durham, P.A., emailed Ed
Hinson of James, McElroy & Diehl, P.A. (Doc. No. 443-2). Rayburn Cooper and Durham P.A.,
as clarified in later emails to counsel for Cargill, represents entities owned by Brian Ewert,
including DLP, RFS, RTL, and DLP Holdings. (Doc. No. 443-4). Mr. Hinson and Mr. Feit, the
subject of this Court’s Show Cause Order, work for the same firm, James, McElroy & Diehl, P.A.
The April 28, 2018 email had the subject “Tracy Ewert.” (Doc. No. 443-2 at 4). Tracy Ewert is
Brian Ewert’s wife. The April 28, 2018 email stated:
Ed:
I have heard from my client that everyone is scrambling to come up with the retainer
and have you in for Tracey ASAP.
Rick
(Doc. No. 443-2 at 4).

2

On April 30, 2018, the Court granted in part and denied in part the Motion to Charge
Interests of Judgment Debtor Brian Ewert. (Doc. No. 395). The Court’s April 30, 2018 Order
addressed Plaintiffs’ application for an order charging the limited liability company and
partnership interests held by Judgment Debtor Brian Ewert with payment of the judgment and
post-judgment interest (the “Charging Order”). This Court held:
Ewert’s ownership interests in the NC Entities are subject to the entry of a charging
order under N.C. Gen. Stat. §§ 57D-5-03 and 59-703. Plaintiffs shall have the rights
of an assignee of such interests, namely, the right to receive the distributions and
allocations or any other payment obligation to Ewert to which Ewert becomes
entitled based on his ownership interest in a NC entity.
(Doc. No. 395 at 2). The Court then ordered, adjudged, and decreed:
2. Ewert’s ownership interests in ODDS, LLC; DLP, LLC (or any iteration of DLP,
including, without limitation, “Diverse Label Printing” and “DLP Distributions”);
DLP Holdings, LLC; Jet Me Around, LLC (or any iteration of the same, including,
without limitation, “JMA, LLC”); B-Pak Manufacturing Solutions, LLC;
Refrigerated Trucking & Logistics, LLC; WDS Canada, LLC; WDS Laundry
Services, LLC; or TBE, LLC are charged with payment of the Judgment, including
post-judgment interest.
…
4. Each NC Entity shall pay directly to Plaintiffs all distributions, allocations,
dividends, or payments owing to Ewert by such NC Entity in satisfaction of the
Judgment until the Judgment is satisfied or further Order of the Court.
…
6. Ewert is enjoined and prohibited from circumventing the terms or purposes of
this Order.
(Doc. No. 395 at 2- 3).
In an email dated April 30, 2018, Mr. Rayburn forwarded to Mr. Hinson an email from
counsel for Cargill. The forwarded email had an attachment entitled “Charging Order.pdf.” The
body of the forwarded email stated:
Rick,
Attached is an order Judge Whitney entered today directing various entities owned
in part or in whole by Brian Ewert, including DLP, to make all distributions
3

allocations, dividends and payments owing to Ewert to Cargill, Inc. and Cargill
Meat Solutions, Corp.
Can you let us know which of these entities you represent?
Thank you,
Jane Maschka
(Doc. No. 443-2 at 7).
On May 7, 2018, a Salary Advance Promissory Note in the amount of $20,000 was signed
by Tracy Ewert. (Doc. No. 448-3 at 2). The Note states “the undersigned promises to pay
DIVERSE LABEL PRINTING, LLC or order, the principal sum of TWENTY THOUSAND AND
NO/100 DOLLARS ($20,000.00), with interest at the rate of two and eighteen hundredths per cent
(2.18%) per annum, accrued annually[.]” (Doc. No. 448-3 at 2). The Note indicates payments
“shall be withheld from the maker’s salary paycheck for a total of seventy-nine bi-weekly pay
periods[.]” (Doc. No. 448-3 at 2). DLP’s bank statement reflects, a wire out of $20,000.000 with
the description of “BNF JAMES MCELROY AND DIEHL;REF TRACY EWERT” on May 8,
2018. (Doc. No. 448-4 at 5).
In an email dated May 8, 2018, Mr. Feit of James, McElroy & Diehl, P.A. emailed Mr.
Rayburn stating:
Rick,
I hope you are well. I was hoping you would have some time to have a chat about
the Ewert matter(s). Thanks.
Jonathan
(Doc. No. 443-2 at 11). The $20,000 Note was marked as satisfied May 9, 2018. (Doc. No. 4483 at 2).

4

In May 2018, Tracy Ewert retained Mr. Feit to represent her in a domestic case against her
husband, Brian Ewert. (Doc. No. 445-7 at 1). On May 9, 2018, Raboteau T. Wilder, Jr. of
Terpening Wilder Law appeared on behalf of Brian Ewert in this proceeding (Doc. No. 406) and
filed a response to Cargill’s Motion for Issuance of An Arrest Warrant and Injunctive Relief
Against Defendant Brian Ewert, Diverse Label Printing, LLC, ODDS, LLC, Resnex Mfg., Inc.,
DLP Holdings, LLC, Refrigerated Trucking & Logistics, LLC, Jet Me Around LLC, B-Pak
Manufacturing Solutions, LLC, RFS, Inc., H. Vaughn Ramsey, as Trustee of the Brian C. Ewert
Irrevocable Trust, and Brian Ewert, as Trustee of the Brian C. Ewert Revocable Trust (Doc. No.
407).
On May 16, 2018, but effective May 1, 2018, Diverse Label Printing, LLC (“DLP”) and
Brian Ewert executed an employment agreement. (Doc. No. 443-3 at 1). The employment
agreement states:
During the Employment Period, as compensation for the services rendered by
Employee to Company, Company will pay to Employee compensation of
$50,000.00/month less federal and state income tax withholding and other
customary employee deductions as required by law, payable in accordance with
Company’s customary payroll practices.
(Doc. No. 443-3 at 1).
Also, on May 16, 2018, Mr. Feit on behalf of Tracy Ewert filed a Verified Complaint in
Mecklenburg County against Brian Ewert, ODDS, LLC, DLP Holdings, LLC, RFS, Inc.,
Refrigerated Trucking and Logistics, LLC, Jet Me Around, LLC, Diverse Label Printing, LLC,
WDS, Inc., B-Pak Manufacturing Solutions, LLC, WDS Canada, LLC, WDS Laundry Services
LLC, and TBE LLC (the “Complaint”). (Doc. Nos. 442-1, 445-2, 445-8). This state court case
was assigned docket number 18-CVD-9391. (Doc. Nos. 442-1, 445-2). Tracy Ewert, alleging a
5

separation date of April 17, 2018, sought postseparation support, alimony, child support, child
custody, equitable distribution, and injunctive relief in the Complaint. (Doc. Nos. 442-1, 445-2,
445-7). The Complaint had three exhibits: the jury’s verdict in this case, the initial amended
judgment from this case, and Tracy and Brian Ewert’s premarital agreement. (Doc. No. 442-1,
445-2).
Relying on Chapter 7A’s delegation of authority to district courts on domestic claims, Mr.
Feit sought injunctive relief for his client under N.C. Gen. Stat. 50-20(i) and N.C. Gen. Stat. 1A1, Rule 65 in the district court division of North Carolina’s General Court of Justice. (Doc. No.
445-7 at 2). Mr. Feit, on behalf of Tracy Ewert, also moved and obtained an ex parte temporary
restraining order before the Honorable Christy T. Mann. (Doc. No. 445-7 at 2; Doc. No. 445-8 at
2). The May 16, 2018 Temporary Restraining Order (“TRO”) entered by Judge Mann (“TRO”)
held:
Pending further Order of this Court, Defendant ODDS, LLC; DLP Holdings, LLC;
RFS, Inc.; Refrigerated Trucking and Logistics, LLC; Jet Me Around, LLC;
Diverse Label Printing, LLC; WDS, Inc.; B-Pak Manufacturing Solutions, LLC;
WDS Canada, LLC; WDS Laundry Services LLC; and TBE LLC shall not make
any distributions to Defendant/Father; Cargill, Inc. and/or Cargill Meat Solutions,
Corp.; or any other creditor.
(Doc. Nos. 429-1, 445-4).
Benjamin E. Shook of Rayburn Cooper & Durham, P.A. sent a letter to Mr. Feit on May
25, 2018. He stated in the letter:
As you are aware, my firm represents Diverse Label Printing, LLC, DLP Holdings,
LLC, Refrigerated Trucking & Logistics, LLC, and RFS, Inc. with respect to certain
business matters. I have reviewed the Ex Parte Temporary Restraining Order as it
relates to my clients. As we discussed, we interpret and understand paragraph 2 of
the decretal portion on page 3 of the Order to mean that the referenced entities,
including my clients, are enjoined from making any distributions to Mr. Ewert on
account of his ownership in such entity. In addition, we interpret the Order to
6

prohibit any distribution or other payment or transfer of assets (on account of a
charging order or otherwise) to Cargill, Inc. and/or Cargill Meat Solutions, Corp.
or any other creditor where such distributions payments, or transfers would be
outside the ordinary course of business.
Based on the above interpretation, we do not believe the regular salary payments to
Mr. Ewert and regular payments to creditors and others made in the ordinary course
of business are prohibited or enjoined by this Order. Please confirm that this is your
understanding as well.
(Doc. No. 443-2 at 14).
Mr. Feit responded:
Dear Ben,
I have your letter of May 25 and I agree with your interpretation of the Ex Parte
Temporary Restraining Order.
(Doc. No. 443-2 at 13).
Counsel for Cargill, Jane E. Maschka, left a voicemail with Mr. Feit about the TRO on
June 13, 2018. (Doc. No. 445-7 at 2). Mr. Feit’s assistant attempted to schedule a telephone call
or have counsel for Cargill email Mr. Feit. (Doc. No. 445-7 at 2). Five days later, Cargill filed a
Motion to Set Aside Ex Parte Temporary Restraining Order in state court. (Doc. No. 445-7 at 2;
Doc. No. 429-2).
On June 20, 2018, Cargill, through a filing on this Court’s docket, informed the Court of
the state court TRO. (Doc. No. 429). This Court then issued a show cause order, ordering Mr.
Feit to appear and show cause why his failure to disclose the Charging Order is not subject to
sanctions on July 9, 2018. (Doc. No. 432).
On June 21, 2018, Judge Cayer held an evidentiary hearing in response to Cargill’s request
for the issuance of an arrest warrant for Brian Ewert. (Doc. No. 435). Counsel from Rayburn

7

Cooper & Durham, P.A. was present at the defense counsel table with Brian Ewert’s counsel of
record but did not enter an appearance in this matter. (Doc. No. 435).
In state court, Judge Mann presided over a preliminary injunction hearing on June 25, 2018.
(Doc. Nos. 442-2; 445-6). Mr. Feit, on behalf of Tracy Ewert; Mr. J. Huntington Wofford of
Wofford Law, PLLC on behalf of Brian Ewert; and Ms. Allison L. Vaughn of Terpening Wilder
Law on behalf of the Business Defendants appeared at the preliminary injunction hearing. (Doc.
Nos. 442-2; 445-6). As reflected in the transcript and preliminary injunction order, Martin L.
Brackett, Jr., of Robinson, Brandshaw & Hinson, P.A., attempted to appear on behalf of Cargill at
the preliminary injunction hearing. (Doc. Nos. 442-2; 445-6). The certified transcript for the
preliminary injunction hearing states:
JUDGE MANN: Have y'all filed a motion to
intervene?
MR. BRACKETT: We did not file a motion
to intervene. We did file a motion
with the Court to bring certain
information to the Court's attention.
MR. FEIT: And, Your Honor, -JUDGE MANN: Well, I'm not sure you can
do that unless you're a party to the
case. Is there some case law that
says you can do that if you're not a
party to the lawsuit?
MR. BRACKETT: Your Honor, I have not
researched that point. We are
affected by the order that was entered
ex parte, without any notice to us.
And what we filed with the Court
brings to this Court's attention the
conflict between that temporary
restraining order and an earlier order
that had been entered by Federal Court
here in Charlotte. And those two
orders are in direct conflict with
each other.
8

MR. FEIT: Your Honor, I'm not aware of
any authority that would allow
Mr. Brackett, on behalf of Cargill, to
have an opportunity to be heard about
anything related to this case,
considering they are not parties to
the case. They have yet to file a
motion to intervene, if that's what
their intention is.
To the extent Mr. Bracket,
on behalf of Cargill, filed a
non-party motion to dissolve a TRO, I
don't know why Cargill thinks that is
something that's appropriate to do.
Nor would it be appropriate for the
Court to consider. This is an action
between Tracy Ewert and Brian Ewert
and various companies. Cargill is not
named anywhere. They are not
mentioned in the TRO. They are not
restrained from doing anything. Nor
are we asking the Court in the
preliminary injunction to restrain
Cargill. Because Cargill is not a
party, we couldn't ask the Court to do
anything related to that.
So I would object, rather
vociferously, to Mr. Brackett, on
behalf of Cargill, speaking at
all with all due respect to
Mr. Brackett -- speaking at all at
this hearing.
MR. BRACKETT: Your Honor, in your
temporary restraining order, Cargill,
Inc., Cargill Meat Solutions Corp.,
are both specifically named in
paragraph 2 of your order, though they
were not named parties. And what we
filed was a motion to set aside the ex
parte temporary restraining order.
And we've set out the reasons for that
in that motion. And the reason
(inaudible) conflict between the order
that was presented to you and entered
9

ex parte versus an order that at the
time that TRO was entered was already
in place and had already been issued
by the Federal Court here in
Charlotte.
MR. FEIT: And, Your Honor, I think I
misspoke. While Cargill is mentioned,
they are not restrained. They are not
restrained from doing anything.
JUDGE MANN: Well, it's a lot more simple
to me that in family court matters,
many times we issue TROs, for
instance, saying a bank, you know, not
to transfer money or release money to
someone, or law firm at a closing not
to release the money. But they don't
have standing to argue in front of me
unless they move to intervene. So
that's -- I just don't think you have
jurisdiction to argue whatever it is
you want to argue because you're,
again, not a party to this action.
And while I certainly
respect what they're doing up the
street at the Federal courthouse, I
have jurisdiction over these parties
and this action pursuant to -- you
know, family court matters are decided
here in this District Court. They
handle whatever they handle up
there. I'm not going to interfere
with them and they can't interfere
with me.
So unless and until y'all file a
motion to intervene and that is
granted, I just don't -- I feel like I
don't have jurisdiction to -- or y'all
don't have standing to interfere in
what's going on between these two
parties.
MR. BRACKETT: Your Honor, as an officer
of the Court we came to this Court
first because of a conflict between
the order you entered and an order
10

that had already been entered, because
the parties you have restrained from
distributing any funds to our client
had, before the entry of your TRO,
been ordered to distribute those same
funds to our client by the Federal
Court order.
JUDGE MANN: I understand. I read
everything that you sent, that you
filed. I've read everything. Done a
little bit of research on this. And
I'm pretty comfortable with my
decision. And maybe Judge Whitney can
straighten me out or whatever, but
anyway. All right. So what's next?
MR. FEIT: Your Honor, I'm going to hand
up -- if I may approach -- a copy of
the charging order.
JUDGE MANN: Uh-huh. Okay.
MR. FEIT: So that there could be no
question that the Court has that in
front of it when making a
determination with respect to the
preliminary injunction. I'm also
going to hand up, out of an abundance
of caution, -- may I approach?
JUDGE MANN: Uh-huh.
MR. FEIT: -- the civil docket that
contains everything that's been filed
in the Federal case so that the Court
can either log on and use its ID to
look at any pleading or, if the Court
is interested in any particular
document on here, my office is happy
to log on and print it so that Your
Honor has it at her disposal. Because
the last thing that I want the Court
to do is make a decision that, I
guess, is somehow - - well, let's just
say, I don't want – I don’t want
personally to be accused, as I've
already been accused, of misleading
this Court into doing anything.
So we're clear, the Court
11

has all of the documents, or all of
the documents are available that are
part of the Federal case, along with a
copy of the charging order.
The Court might recall that
we were here previously seeking a TRO
in which I handed up a copy of a
complaint that sought, among other
things, a TRO. And attached to that
complaint was both the judgment
against Mr. Ewert and the jury form
that made it abundantly clear that
there was a very large judgment that
was owed by Mr. Ewert and others to
Cargill, Inc., and Cargill Meat
Solutions Corp. And that the very
reason we were there seeking the TRO
was because we had a Federal judgment
or a judgment from a Federal court and
a jury that was potentially going to
compromise my client's rights to
various marital assets.
I can put my client on the
stand if the Court thinks that's
necessary. The alternative is, with
Mr. Wofford's agreement, I can just
hand up the premarital agreement that
exists.
JUDGE MANN: It was attached to your MR. FEIT: It was attached to -- all
right. So you already have a copy of
the premarital agreement that
identifies certain rights that
Ms. Ewert has with respect to marital
property, with respect to alimony.
And what we're asking the Court to do
is enter a preliminary injunction
that -- Mr. Brackett is actually not
correct. Because there's nothing in
conflict that the Court did with Judge
Whitney's order.
In fact, Judge Whitney's
order, as I understand it, says that
to the extent there are any
12

distributions -- and I don't want to
mischaracterize it, so I'm going to
read it. Part of the order says: The
Plaintiff shall have the rights of an
assignee of such interest, namely the
right to receive the distributions and
allocations or any other payment
obligation to Ewert to which Ewert
becomes entitled based on his
ownership interest in a North Carolina
entity.
And then the decree of the
charging order says: A North Carolina
entity shall make no distributions,
allocations, dividends or any payment
whatsoever to Ewert on account of his
ownership interest in such North
Carolina entity until further order of
the Court. Each North Carolina entity
shall pay directly to plaintiffs all
distributions, allocations, dividends
or payments owing to Ewert by such
North Carolina entity in satisfaction
of the judgment until the judgment is
satisfied or further order of the
Court.
The TRO that we sought and
that the Court entered simply
restrains these entities from making
distributions at all until the Court
can make a determination about what
Ms. Ewert's marital interest in these
various entities are. Because under
the charging order, Cargill is only
entitled to receive distributions that
belong to Mr. Ewert. And we don't
know what distributions belong to
Mr. Ewert until the Court has
determined equitable distribution.
And the Court obviously has not done
that yet. We are at the infant stages
of this litigation. And that's
something that through discovery and
other things we're going to have to
13

determine.
And what we're simply asking
the Court to do is to maintain the
status quo. Because, frankly, as
everyone knows, once the money is
distributed, it's gone. Once Cargill
gets their hands on the money,
Ms. Ewert is never going to have the
opportunity to get it back. So unless
this Court restrains these various
entities that are named from making
distributions until there is a
determination about what Ms. Ewert's
interest is, Ms. Ewert is going to be
deprived of her right to various
pieces of property, to interest in
property, to distributions from pieces
of property that she would otherwise
be entitled to.
And I would remind the Court
that there is a premarital agreement
that doesn't seem to be contemplated
by Cargill or Mr. Brackett, that very
specifically defines what the rights
of Ms. Ewert are. And that's going to
take some fleshing out and some
figuring out with respect to what
these assets are worth, what kind of
distributions can be made, what
percentage interest Ms. Ewert has in
them. And then ultimately, what the
Court is going to do in terms of our
ask for unequal distribution. And
until those things are done, we think
a preliminary injunction is necessary.
I'm happy to answer any
questions the Court might have.
JUDGE MANN: Well, from my review of the
file, it appears that the parties
separated on April 17th, 2018. The
charging order wasn't entered until
April 30th, 2018. So as far as I'm
concerned, Ms. Ewert, whatever she's
entitled to, if anything, whatever
14

she's entitled to, sort of throws on
April the 17th, 2018, prior to the
entry of this charging order.
And so it's my job to
identify, preserve and protect
whatever assets and liabilities were
owned or owed by the marital unit, and
both parties individually, as of April
17th, 2018, which predates this
charging order. So I'm comfortable
with that.
MR. FEIT: Yes, ma'am. And I appreciate
that. And we'll draft the preliminary
injunction. But to the extent that
the Court feels that in any way it was
duped by me and our presentation of
the complaint, along with the judgment
and the jury form -JUDGE MANN: I was aware of all of that.
This was my -- the TRO was my order.
And, again, I think I said in front of
Mr. Brackett -- he's now left -- that
I enter these types of orders all the
time to preserve whatever marital
estate there is as of the date of
separation. And the closer you can
do that to the date of separation,
usually the better. And so you've
made -- I was aware of all of that.
MR. FEIT: Your Honor, I'd ask -- the
only other thing is that I'd ask that
Your Honor not require a bond to be
posted with respect to any kind of
preliminary injunction.
JUDGE MANN: Okay.
MR. FEIT: Given the fact that everything
has pretty much been seized from
Ms. Ewert, including joint bank
account, a car titled in -- at least
jointly, in Ms. Ewert's name, et
cetera. There really isn't anything
to allow for that posting.
(Doc. Nos. 442-2; 445-6; see also Doc. No. 445-8).
15

The subsequent order entered by Judge Mann found among other things:
17. In entering the May 16, 2018 Ex Parte Temporary Restraining Order, the Court
was not in any way misled by either Plaintiff /Mother or her counsel. The Court
was aware of the federal action, the debt to Cargill, and Cargill's continued
collection efforts at the time of the entry of the May 16, 2018 Ex Parte Temporary
Restraining Order. The Court was further aware of the parties involved in the
federal litigation, having seen the caption of the federal case. The Court knew that
the Plaintiffs named in the federal litigation were not parties to the state court case,
and there was no failure to disclose any material information on the part of either
Plaintiff/Mother or her counsel.
(Doc. Nos. 442-3, 445-5). Judge Mann then ordered, adjudged, and decreed:
1. Plaintiff/Mother's request for a Preliminary Injunction is granted.
2. Defendant/Father and the Business Defendants shall be restrained, pending
further Orders of this Court, from making any distributions to Defendant/Father;
Cargill, Inc. and/or Cargill Meat Solutions, Corp; or any other creditor.
3. The marital residence and its contents, transferred to Plaintiff/Mother by order
of the Ex Parte Temporary Restraining Order, shall remain in Plaintiff/Mother's
possession.
4. This Preliminary Injunction shall remain in full force and effect pending further
orders of this Court.
5. Nothing in this Preliminary Injunction shall be deemed as a waiver or bar of
Plaintiff's right to pursue additional relief set forth in her May 16, 2018 Complaint.
6. No bond need be posted in connection with this Preliminary Injunction.
7. This Preliminary Injunction is enforceable by the contempt powers of this
Court.
(Doc. Nos. 442-3, 445-5).
After the preliminary injunction hearing, Mr. Feit received a call from Andrew W.J. Tarr
of Robinson Bradshaw & Hinson, who is also counsel for Cargill. (Doc. No. 445-7 at 3). Mr. Feit
represented that “our only intention was to protect Ms. Ewert’s interest in her domestic claim
against Mr. Ewert” and “expressed to Mr. Tarr that if Cargill or any of its representatives wanted
to discuss carving out Ms. Ewert’s interests in the Ewerts’ estate so that Cargill could collect on
the Judgment from property to which Ms. Ewert was not entitled, that I would be happy to have
that discussion.” (Doc. No. 445-7 at 3).
16

On July 3, 2018, Cargill filed a Motion to Hold Brian Ewert, Diverse Label Printing, LLC,
and ODDS, LLC in civil content for violations of the April 30, 2018 Charging Order with
accompanying exhibits. (Doc. No. 438).
Prior to the hearing to show cause, Cargill and Mr. Feit apprised the Court of developments
in the state court through additional filings. Cargill summarized the developments and filed Mr.
Feit’s affidavit from state court in support of his motion for attorney’s fees, which reflects
communication with counsel for Ewert and the entities he owns prior to filing Ms. Ewert’s
Complaint and seeking the TRO. (Docs. No. 439, 439-1). Cargill also notified the Court that Mr.
Feit appears to have obtained an award of approximately $20,000 in monthly support. (Doc. No.
439 at 3). Mr. Feit filed with this Court the Complaint and Motion for Injunctive Relief; the June
25, 2018 Preliminary Injunction Hearing Transcript; and the July 6, 2018 Preliminary Injunction
Order. (Docs. No. 442, 442-1, 442-2, 442-3).
Mr. Feit appeared at the hearing on the Order to Show Cause on July 9, 2018. In response
to the Court’s Order to Show Cause, Mr. Feit represented that we did not know of the Charging
Order when he filed the Complaint and sought the TRO for Tracy Ewert. He admitted that he did
not attach a copy of the Charging Order to the Complaint and request for injunctive relief when
seeking the TRO. Cargill also appeared at the show cause hearing.2 Cargill summarized its
concerns with Mr. Feit’s conduct, which was not limited to the nondisclosure but also the
appearance of material or misleading misrepresentations in the Complaint, including but not
limited to Ms. Ewert’s occupation, her allowance from her husband, the collection efforts by
Cargill, and the date of separation. Mr. Feit maintains that he relied on the representations of his
2

Raboteau T. Wilder, Jr., counsel for Brian Ewert, was present in the courtroom during the hearing. Mr. Wilder did
not make a formal appearance, but he did speak on the record.

17

client when he filed the Complaint verified by his client and sought the relief to protect his client
in the appropriate forum. Mr. Feit did not present any additional evidence at the hearing and did
not request to testify under oath. At the end of the hearing, the Court deferred ruling on the motion
until after July 17, 2018, to give the parties an opportunity to resolve the situation.3
On July 12, 2018, Cargill filed additional materials that it found relevant to the July 9, 2018
show cause hearing. (Doc. No. 443). These materials include emails produced by Rayburn Cooper
& Durham and the employment agreement produced by DLP, which have been summarized
herein. (Doc. Nos. 443-1, 443-2, 443-3). Cargill also filed emails between their counsel and Mr.
Shook of Rayburn Cooper & Durham, P.A. from June and July 2018. (Doc. No. 443-4). In emails
dated July 12, 2018, Mr. Shook stated, “[f]or the sake of clarity, we do not represent any of these
entities in the District Court matter or in any other litigation.” (Doc. No. 443-4 at 1). He also
stated, “[w]e do not represent Brian Ewert or any other individual. As you know, we represent
DLP, RFS, RTL, and DLP Holdings.” (Doc. No. 443-4 at 1).
On July 13, 2018, Mr. Feit filed the Motion to Withdraw or Dismiss this Court’s Show
Cause Order. (Doc. No. 445). Mr. Feit submitted for the Court’s consideration the Affidavit of
Jonathan D. Feit; the Affidavit of the Honorable Christy T. Mann; the Complaint and Motion for
Injunctive Relief; the TRO; the June 25, 2018 Preliminary Injunction Hearing Transcript; the July
6, 2018 Preliminary Injunction Order; and the Premarital Agreement between Brian Ewert and
Tracy M. Barnes (now Ewert). (Doc. Nos. 445, 445-2, 445-3, 445-4, 445-6, 445-7, 445-8).

At various points in the hearing, the parties either unilaterally or at the Court’s questioning addressed matters
occurring after the Order to Show Cause. Some of the parties’ inquiries verged on soliciting the Court for advice on
how to proceed as to their client. In order to avoid any confusion, the Court clarified on the record that the Court has
no obligation to advise the parties and reminded the parties of their obligations, including but not limited to their due
diligence obligations. The Court further clarifies that nothing stated by this Court at the hearing may be construed as
binding on the Court, advice by the Court, or the law on any matter.
3

18

On July 17, 2018, Mr. Wilder filed a response to Cargill’s Motion to Hold Brian Ewert,
Diverse Label Printing, LLC, and ODDS, LLC in civil content for violations of the April 30, 2018
Charging Order.

(Doc. No. 446).

In addition to responding and objecting to Cargill’s

characterization and request for an order to show cause, Mr. Wilder stated he “represents Ewert,
ODDS, DLP, and other entities, and has done so since being retained.” (Doc. No. 446 at 8; see
also Doc. No. 446 at 3).
On July 19, 2018, Ms. Maschka, counsel for Cargill, emailed Mr. Shook, copying Mr.
Wilder, stating:
As far as we are aware, neither DLP nor Ewert has produced any document that
sets forth any agreement between ODDS/Ewert and DLP regarding the terms of
“commission” payments made to ODDs before the recent change to salary. Does
any such document exist?
(Doc. No. 448-5 at 2). Mr. Shook, who represents entities owned by Brian Ewert, including DLP,
RFS, RTL, and DLP Holdings (Doc. No. 443-4), responded, “No such document or agreement
exists.” (Doc. No. 448-5 at 2).
On July 23, 2018, DLP sought relief under Chapter 11 of the Bankruptcy Code in the
United States Bankruptcy Court for the Middle District of North Carolina. (Doc. No. 447). On
July 24, 2018, Cargill filed a reply in support of their Motion to Hold Brian Ewert, and ODDS,
LLC in civil contempt. (Doc. No. 448). The reply clarified that Cargill “does not seek any
contempt finding or civil contempt damages against DLP at this time” in light of the DLP’s filing
of Chapter 11 bankruptcy and the resulting automatic stay, 11 U.S.C. § 362. Cargill also submitted
Tracy Ewert’s Salary Advance Promissory Note, DLP’s May 2018 First National Bank Account
Statement, and July 19-20 emails between Ms. Maschka and Mr. Shook, which have been

19

summarized herein. (Doc. Nos. 448-2, 448-3, 448-4, 448-5). Cargill also submitted June 4-6
emails between Brian Ewert and Stephanie Norris. (Doc. No. 448-6).
The 17th of July has now passed, and the parties have not informed the Court that they
resolved this matter.
II. MOTION TO WITHDRAW OR DISMISS
A. Misled
Mr. Feit suggests that he did not mislead Judge Mann because he disclosed the existence
of this Court’s judgment when seeking the TRO, and when Judge Mann received the Show Cause
Order, she still granted the preliminary injunction enjoining distributions to Cargill. (Doc. No.
445-1 at 3). Mr. Feit filed an Affidavit from Judge Mann to support his position. Judge Mann
states “I do not believe that Mr. Feit has misled or ‘duped’ me – either intentionally or negligently
– in his seeking and obtaining of either the Ex Parte Temporary Restraining Order or the
Preliminary Injunction.” (Doc. No. 445-8 at 3). Although the Court will consider and afford due
weight to Judge Mann’s belief and the subsequent preliminary injunction order, what Judge Mann
believes is not determinative of materiality or Mr. Feit’s ethical obligations. Therefore, the Court
will not withdraw or dismiss the Show Cause Order on the basis of Judge Mann’s affidavit or the
Preliminary Injunction Order.
B. Jurisdiction over Mr. Feit
In the Motion to Withdraw or Dismiss, Mr. Feit for the first time challenges this Court’s
jurisdiction over him. Mr. Feit explains that he filed a pleading in state court, rendering Federal
Rule of Civil Procedure 11 inapplicable. (Doc. No. 445-1 at 3). Mr. Feit also raises that he had
not appeared before the Court prior to appearing at the show cause hearing on July 9, 2018. (Doc.
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No. 445-1 at 4). Thus, he contends he could not be held in direct contempt of Court for his actions
in obtaining the ex parte TRO. (Doc. No. 445-1 at 4). Further, citing Justice Kennedy’s dissenting
opinion in Chambers v. NASCO, Inc., 501 U.S. 32, 72 (1991), Mr. Feit argues “the Court has no
jurisdiction . . . to hold him in indirect contempt for any allegedly contemptuous behavior
committed outside the presence of this Court, such as inside the Mecklenburg County Courthouse”
for it “suggest[s] that this Court has jurisdiction to sanction any person at any time for any conduct,
including for a lawyer’s pursuing his client’s rights in state court, which is unsupported by law.”
(Doc. No. 445-1 at 4) (emphasis omitted).
However, as recognized by the majority opinion in Chambers, this Court does have
inherent authority to “sanction[] for abuses of process occurring beyond the courtroom” and “to
control admission to its bar and to discipline attorneys who appear before it.” Chambers v.
NASCO, Inc., 501 U.S. 32, 43, 57 (1991) (citations omitted).4 By the Court’s records, Mr. Feit
has been admitted to practice in this Court since September 25, 2001 and remains active. (See
generally Doc. No. 432 (citing LCvR 83.2)).5 This Court also has authority in equity to sanction
“a party who shows bad faith by delaying or disrupting the litigation or by hampering enforcement

“It has long been understood that ‘[c]ertain implied powers must necessarily result to our Courts of justice from the
nature of their institution,’ powers ‘which cannot be dispensed with in a Court, because they are necessary to the
exercise of all others.’” Id. at 43 (alteration in original) (citations omitted).
5
See also United States v. Shaffer Equip. Co., 11 F.3d 450, 457-58 (4th Cir. 1993) (“Our adversary system for the
resolution of disputes rests on the unshakable foundation that truth is the object of the system's process which is
designed for the purpose of dispensing justice. However, because no one has an exclusive insight into truth, the process
depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions - all directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition.
Even the slightest accommodation of deceit or a lack of candor in any material respect quickly erodes the validity of
the process. As soon as the process falters in that respect, the people are then justified in abandoning support for the
system in favor of one where honesty is preeminent. . . . The system can provide no harbor for clever devices to divert
the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end. It is
without note, therefore, that we recognize that the lawyer's duties to maintain the confidences of a client and advocate
vigorously are trumped ultimately by a duty to guard against the corruption that justice will be dispensed on an act of
deceit. . . . The general duty of candor and truth thus takes its shape from the larger object of preserving the integrity
of the judicial system.”).
4

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of a court order.” Hutto, 437 U.S. at 689 n. 14 (citations omitted).6 Mr. Feit did not challenge this
Court’s authority on these grounds and raised no objection to this Court’s jurisdiction upon his
appearance at the hearing on July 9, 2018.7
C. Jurisdiction over State Law Claims
Mr. Feit also argues that this Court does not have jurisdiction over Tracy Ewert’s domestic
claims. (Doc. No. 445-1 at 4). For centuries, the Supreme Court has “disclaim[ed] altogether any
jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of
alimony, either as an original proceeding in chancery, or as an incident to a divorce a vinculo, or
to one from bed and board.” Barber v. Barber, 62 U.S. 582, 583 (1858). However, this Court has
not suggested it has jurisdiction over such proceedings, but rather, has jurisdiction and authority
“in proceedings supplementary to and in aid of judgment or execution” in accordance with state
law unless a federal statute governs. Fed. R. Civ. P. 69(a)(1). As a result, this Court has entered
orders in aid of judgment or execution including the Charging Order.8 Mr. Feit’s attempts to shift

6

Courts have recognized that certain tactics in post-judgment proceedings may be evidence of bad faith or fraud. Cf.
Platt-Barber Co. v. Groves, 44 A. 571, 573 (Pa. 1899) (“[S]tay, or unusual delay of the proceedings, allowing the
debtor to sell or otherwise to deal with the goods in contravention of the levy, and other acts of similar nature, give
rise to a presumption of want of good faith. . . . Such acts, however, are not frauds per se, but only evidence of fraud,
which may be rebutted, and, if the creditor's delay is shown to be in good faith and in furtherance of a genuine intention
to collect his debt, he will not be postponed.” (internal citations omitted)).
7
This Court also has the “power to punish by fine or imprisonment, or both, at its discretion, such contempt of its
authority, and none other, as . . . Disobedience or resistance to its lawful writ, process, order, rule, decree, or
command.” 18 U.S.C. § 401(3). Disobedience or resistance to a lawful writ, process, order, rule, decree or command
may be in many forms. Cf. McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (“Respondents could have
petitioned the District Court for a modification, clarification or construction of the order. See Regal Knitwear Co. v.
Labor Board, 324 U.S. 9, 15. But respondents did not take that course either. They undertook to make their own
determination of what the decree meant. They knew they acted at their peril. For they were alerted by the decree
against any violation of specified provisions of the Act. It does not lie in their mouths to say that they have an
immunity from civil contempt because the plan or scheme which they adopted was not specifically enjoined. Such a
rule would give tremendous impetus to the program of experimentation with disobedience of the law which we
condemned in Maggio v. Zeitz, supra, at 69. The instant case is an excellent illustration of how it could operate to
prevent accountability for persistent contumacy.”).
8
Mr. Feit has not argued that this Court has been deprived of jurisdiction on account of the commencement of Tracy
Ewert’s proceedings in state court. Cf. Chambers, 501 U.S. at 41, 50, 55 (affirming sanctions upon finding by district

22

the focus to the domestic law claims further ignores that the Order to Show Cause is based on his
seeking and obtaining the TRO. Although injunctive relief is permitted under Chapter 50 of the
North Carolina General Statutes, the TRO does not resolve any domestic law claims. It is an
injunction impairing the property of others pending the determination of Tracy Ewert’s interest in
the property.
III. CONCLUSION
For the reasons stated, the Court DENIES Mr. Feit’s Motion to Withdraw or Dismiss this
Court’s Order to Show Cause. (Doc. No. 445). The Court, in the exercise of its discretion and in
light of the further development of the record after the July 9, 2018 hearing, including the filing of
bankruptcy by DLP, STAYS consideration of this Court’s June 22, 2018 Order to Show Cause for
ninety (90) days.9
IT IS SO ORDERED.
Signed: July 27, 2018

court that plaintiff “devised ‘first, to deprive this Court of jurisdiction and, second, to devise a plan of obstruction,
delay, harassment, and expense sufficient to reduce NASCO to a condition of exhausted compliance’”).
9
After the stay is lifted, the Court, if necessary and appropriate, will enter further notice and order a second show
cause hearing.

23