The opinion of the court was delivered by: KIMBA M. WOOD
Plaintiff, the Securities and Exchange Commission, ("Commission") moves for an order holding defendant Albert DeAngelis in civil contempt. Magistrate Judge Grubin recommends that I hold defendant DeAngelis in civil contempt and recommends that I require him to meet certain conditions in order to purge his contempt. Mr. DeAngelis objects to Magistrate Judge Grubin's Report and Recommendation ("Report"). On de novo review, I adopt Magistrate Judge Grubin's Report in its entirety for the reasons stated below.
Magistrate Judge Grubin's Report relates the facts relevant to this action. I will repeat them here only to the extent necessary.
This court's Final Judgment and Order entered on September 28, 1989 required Mr. DeAngelis to disgorge profit from trading in securities on inside information. The profit and prejudgment interest totalled $ 615,918.82 and was due thirty days from the date judgment was entered. The Court of Appeals affirmed the Final Judgment and Order, and the United States Supreme Court denied a petition for a writ of certiorari on October 1, 1990.
Following defendant's failure to comply with the judgment, the Commission moved for a judgment of civil contempt against Mr. DeAngelis on November 16, 1990. After an evidentiary hearing on October 8, 1991, Magistrate Judge Grubin ordered Mr. DeAngelis to make interim payments of $ 1,500.00 per month until further order of the court. The hearing resumed on January 23, 1992 after defendant requested an opportunity to present additional evidence. Magistrate Judge Grubin submitted her Report on October 29, 1992.
Mr. DeAngelis objects to the Report on two grounds. First, he argues that he should not be held in contempt of court because it was impossible for him to comply with the September 28, 1989 order. Second, he argues that even if he is in contempt, the conditions for purging his contempt recommended by Magistrate Judge Grubin are unreasonable.
A. Civil Contempt of Court
Mr. DeAngelis does not dispute that he has failed to comply with this Court's September 28, 1989 order. However, he argues that it was factually impossible for him to pay the entire amount ordered. Mr. DeAngelis has the burden of coming forward with evidence showing financial inability to comply. United States v. Rylander, 460 U.S. 752, 757, 75 L. Ed. 2d 521, 103 S. Ct. 1548 (1983).
Mr. DeAngelis objects to Magistrate Judge Grubin's recommendation that Mr. DeAngelis' failure to make periodic payments of smaller amounts to the extent of his financial ability precludes a defense of inability to pay. Although it is true that "a contempt citation cannot be based on a vague and uncertain order," In Re BiCoastal Corporation, 129 Bankr. 283, 285 (M.D. Fla. 1991), the order in this case was clear and unambiguous.
When an order requires a party to pay a sum certain, a mere showing that the party was unable to pay the entire amount by the date specified is insufficient to avoid a finding of contempt. When a party is absolutely unable to comply due to poverty or insolvency, inability to comply is a complete defense. See Badgley v. Santacroce, 800 F.2d 33, 37 (2d Cir. 1986). Otherwise, the party must pay what he or she can. See Piambino v. Bestline Products, Inc., 645 F. Supp. 1210, 1214 (S.D. Fla. 1986) ("a person subject to ...