The opinion of the court was delivered by: NEAHER
Originally this action was brought pursuant to "self-help" provisions of § 222(b) of the Interstate Commerce Act, Part II, 49 U.S.C. § 322(b)(2) (1976) (repealed 1978) ("the Act"),
to enjoin defendants from engaging in interstate bus transportation for hire in violation of the Act to plaintiff's injury. Plaintiff Hudson Transit Lines, Inc. ("Hudson") is a common carrier authorized by the Interstate Commerce Commission ("ICC") to transport passengers interstate by motor vehicle between New York City and, inter alia, various locations in the resort area of the Catskill Mountains in New York State. Hudson's affiliate, Hudson Transit Corp., also operates under the same trade name "Shortline", and is authorized by the New York State Department of Transportation to transport passengers intrastate between the same locations. The interstate route between the City and the mountains runs via the Lincoln Tunnel and the New Jersey Turnpike. The action is now before the Court on Hudson's petition for an order holding certain defendants in contempt of a consent judgment entered in August 1977.
Named as defendants in the original complaint were Chaim (Herman) Freund, Avadga (Victor) Einhorn, Avadga's father, the Rabbi Jacob Einhorn, and his Congregation Beth Jonah, four other Hassidic congregations in Brooklyn, New York, the United Jewish Organizations of Williamsburgh, Inc. ("UJO Inc."), an umbrella organization of Hassidic and other Jewish yeshivas, congregations and organizations, and the corporation which allegedly provided some of the buses the other defendants used. On August 19, 1977, the court approved a consent judgment entered into by the parties which provided
"that defendant United Jewish Organizations of Williamsburgh Inc., its agents, attorneys, servants, employees and members, and all others to whom notice hereof may come, be (and) they hereby are jointly and severally restrained and enjoined in any manner, device or form, directly or indirectly from operating, or aiding, assisting or abetting others in the operation in interstate commerce subject to Part II of the Interstate Commerce Act of any transportation service by motor vehicle which involves any pick-up or discharge of passengers within the City of New York other than the county of Kings unless there shall come into effect to this defendant a certificate of or permit issued by the Interstate Commerce Commission authorizing the transportation restrained herein, and it is further,
"Stipulated and agreed that defendants Chaim Freund, Avadga (Victor) Einhorn, Jacob Einhorn and Congregation Beth Jonah, and each of them, their agents, attorneys, servants, employees and members, and all others to whom notice hereof may come be and they hereby are jointly and severally restrained and enjoined in any manner, device or form, directly or indirectly, from operating, or aiding, assisting or abetting others in the operation in interstate commerce subject to Part II of the Interstate Commerce Act of any transportation service by motor vehicle, unless and until there shall come into effect with respect to these defendants a certificate of or permit issued by the Interstate Commerce Commission authorizing the transportation restrained herein."
Despite the entry of this decree the conduct enjoined persisted, and on September 12, 1977, Hudson obtained an order from this Court directing Freund, the Einhorns, Congregation Beth Jonah and UJO Inc. to show cause why they should not be held in contempt of the August 12 decree. This petition for contempt was withdrawn on consent of the parties on February 14, 1978, without prejudice to renewal.
During the next season a second order issued on July 11, 1978 directing these same defendants to show cause on July 20, 1978 why they should not be held in contempt of the August 12 decree. The petition also named the Brookfield Bus Company and its president, Bud Blasi, as defendants' agents and co-conspirators in violating the terms of the decree. Following hearings on July 20 and 25, 1978, the application was withdrawn as to Brookfield but the other named defendants were found by default to be in civil contempt of the decree. A fine was ordered imposed upon those contemnors in the amount of Hudson's lost revenues during the time of the alleged contempt. The defaulting contemnors thereupon moved to vacate the default, submitting affidavits and testifying that they had nothing to do with the interstate transportation for hire of anyone from New York City to the mountain resorts.
Following discovery, hearings were held on January 20, 22 and 24, 1979, concerning the activities which allegedly were conducted in violation of the August 1977 decree. Final briefs were submitted on November 7, 1979. The Court's findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P., follow.
The issue presented is whether any party bound by the August 12, 1977 decree and named in the July 1978 show cause order, "in any manner, device or form, directly or indirectly ...(operated), or aid(ed), assist(ed), or (abetted) others in the operation" of any motor transportation service for hire in violation of the terms of the decree applicable to such party.
A party seeking to hold an adversary in civil contempt of a consent decree must establish by clear and convincing proof that the putative contemnor has violated the decree. See Erhardt v. Prudential Group, Inc., 629 F.2d 843 (2d Cir. 1980); Hart, Schaffner & Marx v. Alexander's Department Stores, Inc., 341 F.2d 101 (2d Cir. 1965); Janmort Leasing, Inc. v. Econo-Car International, Inc., 475 F.Supp. 1282, 1297 n.12 (E.D.N.Y.1979). "A mere preponderance of the evidence will not suffice," Hart, Schaffner & Marx, supra, 341 F.2d at 102. A finding of wilfulness on the part of the alleged contemnor is unnecessary, see McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 499, 93 L. Ed. 599 (1949); N. L. R. B. v. Local 282, International Brotherhood of Teamsters, 428 F.2d 994, 1001 (2d Cir. 1970), but such a finding will entitle the complaining party to include its attorney's fees in the reasonable costs of prosecuting the contempt. See Vuitton et Fils, S. A. v. Carousel Handbags, 592 F.2d 126, 130-31 (2d Cir. 1979); W. E. Bassett Co. v. Revlon, Inc., 435 F.2d 656, 664-65 & n.5 (2d Cir. 1970); Andre Matenciot, Inc. v. David & Dash, Inc., 422 F.Supp. 1199, 1210-11 (S.D.N.Y.1976).
Under these principles plaintiff has adequately proved that Avadga (Victor) Einhorn and Chaim (Herman) Freund, but not Rabbi Jacob Einhorn, Congregation Beth Jonah or UJO, Inc., wilfully violated the August 1977 decree, are in civil contempt thereof and are liable for a fine of $ 60,854 plus plaintiff's expenses, including attorney's fees in prosecuting the contempt.
That Victor Einhorn wilfully violated the consent decree was clearly and convincingly proved. The evidence adduced established that between the last weekend in June and Labor Day 1978 buses were provided to carry passengers from the Hassidic Jewish community for hire on a regular, scheduled basis between the Catskills and New York City; that these buses traveled interstate; and that Einhorn participated in numerous aspects of this bus service.
The evidence showed that buses owned by the Brookfield Bus Service were being used for this purpose. Passengers were seen and photographed paying fares and boarding buses chartered from Brookfield at Lee Avenue in Brooklyn, New York (Exhs. 45a, 45b, 45c; Russo Tr. 261-62).
Brookfield buses were sighted almost daily until the end of July traveling interstate on the New Jersey Turnpike (Kavanaugh Tr. 11-12, 46). Two other buses, with which Einhorn was proved to be closely involved (see infra ), were also regularly seen on Fridays and Mondays throughout the season (Kavanaugh Tr. 12-13). Advertisements (e. g., Exh. 30), and posters (Exh. 29) informed potential passengers from the Jewish community in Williamsburgh and in the mountains of the scheduled departure and arrival times of the "only Jewish" buses and listed telephone numbers, including Einhorn's, for more information.
There is no serious question that plaintiff faced direct competition on its interstate run from these activities. At times the competition was blatant. For example, on the second day of plaintiff's season on the run from the mountains to the city, two Brookfield buses, which started after plaintiff's bus, picked up all the fares waiting on the roadside. Evidently Einhorn in an advance car had warned the passengers not to take plaintiff's bus (Kavanaugh Tr. 9-10, 11, 20). Furthermore, Einhorn was seen supervising Brookfield drivers in Williamsburgh and on Forty-Seventh Street in Manhattan (Kavanaugh Tr. 17-18, 51-52, 54-55). There was testimony that Einhorn had ordered ...