United States of America v. Pendarvis et al

Filing 18

CONSENT JUDGMENT AND PERMANENT INJUNCTION, granting 15 Motion for Permanent Injunction. Signed by Honorable J Michelle Childs on 4/13/2017.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
DAVID W. PENDARVIS, III, and
)
PENDARVIS ENTERPRISE LLC,
)
)
Defendants.
)
_______________________________________)

Case No. 5:16-cv-03986-JMC

JUDGMENT AND PERMANENT
INJUNCTION BY CONSENT

THIS MATTER is before the Court on the Joint Motion for Entry of Judgment and
Permanent Injunction by Consent by the Plaintiff, the United States of America, and the
Defendants, David W. Pendarvis, III, and Pendarvis Enterprise LLC (ECF No.15).
The Court having reviewed the Motion and stipulations therein, and otherwise being fully
advised in the premises, hereby FINDS as follows:
The United States filed the instant Complaint seeking a permanent injunction against
Defendants pursuant to 26 U.S.C. § 7402(a). ECF No. 1. The Court has subject matter jurisdiction
to hear and decide all the claims and defenses in this action under 26 U.S.C. § 7402. The parties
have also stipulated and agreed that the Court has personal jurisdiction over the Defendants. The
Defendants agreed to waive the entry of findings of fact and conclusions of law and voluntarily
consented to the entry, without further notice, of a permanent injunction pursuant to 26 U.S.C.
§ 7402(a).
A proposed Judgment and Permanent Injunction by Consent (“the Injunction”) has been
signed by the parties and submitted to the Court. The Defendants agreed to be bound by the terms
of the Injunction, and further understand and agree that the Injunction will be entered pursuant to

15092206.1

Fed. R. Civ. P. 65 and may result in the entry, without further notice, of a final judgment against
them in this case. The Defendants have further agreed to waive any right they may have to appeal
from the Injunction or any final judgment entered against them in this case.
The parties requested that the Court retain jurisdiction over this matter for the purpose of
implementing and enforcing the Injunction. The Defendants understand and agree that if they fail
to comply with the terms of the Injunction, they may be subject to civil and criminal sanctions for
contempt of court. The Defendants further understand and agree that the United States may,
without further notice, conduct post-judgment discovery to monitor their compliance with the
Injunction.
The parties agree that entry of the Injunction will resolve all issues in this case as
contemplated by Federal Rules of Civil Procedure 54 and 58. However, entry of the Injunction
will not preclude the United States, or any of its agencies, from pursuing any other civil or criminal
matter or proceeding against the Defendants, nor will it preclude the Defendants from contesting
the underlying federal employment and unemployment tax liabilities in other matters or
proceedings.
Accordingly, it is hereby ORDERED and ADJUDGED that the Joint Motion for Entry of
Judgment and Permanent Injunction by Consent is GRANTED.
It is FURTHER ORDERED and ADJUDGED pursuant to 26 U.S.C. § 7402(a) that
David W. Pendarvis, III (individually and doing business under any other name or using any other
entity), Pendarvis Enterprise LLC, and their representatives, agents, servants, employees,
attorneys, successors in interest, assigns, and anyone in active concert or participation with them,
shall—

2
15092206.1

1. withhold and pay over to the Internal Revenue Service all income and Federal
Insurance Contributions Act (“FICA”) taxes of their employees, as well as the employer’s portion
of Federal Unemployment Tax Act (“FUTA”) and FICA taxes, as required by law;
2. segregate and hold separate and apart from all other funds the monies withheld from
employees for taxes pursuant to any internal revenue laws of the United States, and deposit such
monies and the employer’s share of FICA taxes in an appropriate federal depository bank in
accordance with the federal deposit regulations;
3. deposit FUTA taxes in an appropriate federal depository bank each quarter in
accordance with the federal deposit regulations;
4. for a period of five years, sign and deliver affidavits to the Internal Revenue Service at
1835 Assembly Street, MDP 36, Columbia, South Carolina 29201, or to such other specific
location as directed by the Service, not later than the twentieth day of each month, stating that the
requisite withheld income, FICA, and FUTA tax deposits were timely made;
5. timely file all required Form 941 and 940 tax returns with the Internal Revenue Service
at 1835 Assembly Street, MDP 36, Columbia, South Carolina 29201, or to such other specific
location as directed by the Service;
6. timely pay the federal tax liabilities reported as due on every Form 941 and 940 return
that David W. Pendarvis, III, and/or Pendarvis Enterprise LLC are required to file;

3
15092206.1

7. not convey or assign any of Pendarvis Enterprise LLC’s property or rights to property
or make any disbursements from the assets of Pendarvis Enterprise LLC before paying all the
federal tax liabilities reported as due on each tax return required to be filed after the date of this
Judgment and Permanent Injunction by Consent; and
8. promptly notify the Internal Revenue Service of any entity that David W. Pendarvis,
III, may own, manage, or work for during the next five years.
IT IS FURTHER ORDERED and ADJUDGED that this Court retains jurisdiction over
this case to ensure compliance with this Judgment and Permanent Injunction by Consent and that
the United States may, without further notice, conduct full post-judgment discovery to monitor the
Defendants’ compliance with this order.
s/J. Michelle Childs
J. MICHELLE CHILDS
UNITED STATES DISTRICT JUDGE
April 13, 2017
Columbia, South Carolina

4
15092206.1

Consented to by:
For the United States of America

For David W. Pendarvis, III, and
Pendarvis Enterprise LLC

DAVID A. HUBBERT
Acting Assistant Attorney General

ECTON LAW FIRM, PA
By: s/ John A. Ecton
JOHN A. ECTON (#5950)
7911 Broad River Road, Suite 100
Irmo, South Carolina 29063
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

ALLISON C. CARROLL
Trial Attorney, Tax Division
U.S. Department of Justice
Post Office Box 14198
Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
– and –
BETH DRAKE
United States Attorney
District of South Carolina
By: s/ J. Douglas Barnett
J. DOUGLAS BARNETT (#2144)
Assistant United States Attorney
1441 Main Street, Suite 500
Columbia, South Carolina 29201
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

March 10, 2017

5
15092206.1

15092206.1