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March 17, 1997

MALVINA D'ORANGE, Plaintiff, against CHARLES M. FEELY, RALPH CRUDO, and CRUDO & CRUDO, P.C., Defendants.

The opinion of the court was delivered by: MOTLEY


 Plaintiff stood to inherit approximately $ 255,000. (P 11.) Upon the death of Otalera, Feely persuaded D'Orange to forgo a lump sum distribution of her inheritance and to instead allow Feely to provide her with monthly installment payments of $ 3,000. (P 12.) Plaintiff alleged that Feely paid the monthly payment until late 1992 or early 1993 but, at the same time, appropriated approximately $ 79,000 from the estate for his own benefit. (P 14.) Additionally, D'Orange asserted that Feely violated his fiduciary duty to Otalera by spending approximately $ 43,000 of the $ 60,000 given to him to be held in trust for Otalera.

 D'Orange alleged that on or before early 1993, Feely created false financial reports and accounting of legal services that he never rendered to cover up his misappropriation of the estate funds. (PP 16-18) On May 27, 1993 and October 1, 1993, the Crudo defendants forwarded to plaintiff's counsel the allegedly fraudulent 'fiduciary accounts' that Feely had prepared. (PP 18, 32; Mot. Dismiss Comp. Exs. F, H.). The Crudo defendants made a motion to dismiss arguing that plaintiff failed to state a RICO claim against them. This court granted the Crudo defendants' motion and dismissed plaintiff's complaint against them.

 Feely did not respond to D'Orange's complaint within the proscribed period. Accordingly, this court entered a default against him on July 29, 1994. On September 12, 1994, Feely made a motion to vacate the default judgment which this court denied by an order, dated September 30, 1994. On August 9, 1995, following a two day inquest on damages which Feely neglected to attend (his attorney was present), this court entered a default judgment against Feely in the amount of $ 1,361,583. Feely thereafter filed a Notice of Appeal. *fn1"

 On October 3, 1995, D'Orange served Feely with a Notice of Deposition and document request, pursuant to Fed.R.Civ.P. 69 which permits post-judgment discovery. Plaintiff was attempting to determine the amount and location of Feely's assets because she had received nothing from him since she had been granted the $ 1.3 million default judgment award. When Feely refused to comply with the deposition, plaintiff moved to compel discovery. Feely then cross-moved for an order quashing or modifying the subpoena, or for a protective order from the subpoena, pursuant to Fed.R.Civ.P. 27 and 45. Feely argued that because the case was on appeal, he did not have to comply with post judgment discovery.

 On November 13, 1995, this court granted plaintiff's motion to compel discovery, denied Feely's cross-motion to quash the subpoena, and ordered Feely to appear for his deposition on November 20, 1995 and to disclose his assets in connection with the judgment entered against him. Feely appealed this order and received a stay, on November 17, 1995, from the United States Court of Appeals, Second Circuit. On January 23, 1996, the Second Circuit vacated its stay of this court's November 13, 1995 order regarding discovery. On February 2, 1996, plaintiff submitted another written request compelling post-judgment discovery. Accordingly, by order dated February 14, 1996, this court again ordered Feely to comply with discovery and to appear for deposition at the courthouse on February 23, 1996. Feely and his attorney, Mr. Wales, attended the court ordered deposition but produced a single page of one bank account statement, and either refused to answer or answered vaguely the questions posed by plaintiff's counsel. (Pltf. Not. Mot. Contempt Ex. D).

 On March 29, 1996, plaintiff moved for an order adjudging Feely in civil contempt of the November 13, 1995 and February 14, 1996 orders of this court, pursuant to 18 U.S.C. § 401. *fn2" In May, 1996, D'Orange died. Due to the Queens Surrogate Court's delay in appointing an executrix of the estate, Feely's contempt hearing was postponed on a number of occasions. At a contempt hearing held on June 28, 1996, this court directed plaintiff's counsel to make a motion for the substitution of parties, since the plaintiff was deceased. On August 22, 1996, this court held another contempt hearing. Prior to the hearing and pursuant to Rule 25(a)(1), *fn3" on June 20, 1996, defendant's new counselor, Ronald Cohen ("Cohen"), filed and served a statement of plaintiff's death. As a result, Cohen objected to the August 22 contempt proceeding because plaintiff's counsel had not made the directed motion and asked for an adjournment of the hearing on the grounds that there was no proper party in the case.

 Plaintiff's counsel informed the court that the motion had not been made because the Surrogate Court had still not appointed an executrix. Over the strong objection of Cohen, the court informed both parties that the hearing would proceed since a contempt proceeding for the violation of court's orders was sui generis. The court reasoned that although plaintiff's motion brought Feely's violation to the court's attention, the court had the inherent power to inquire as to whether its orders had been disobeyed. The court noted that there was no way of determining the extent of the delay in the Surrogate Court and that according to the rules, it could appoint a substitute party whenever necessary. Cohen indicated that under Rule 25 a motion for a substitute party had to be made ninety (90) days after the statement of death was put on the record. Since the plaintiff's death was put on the record in June, the court noted that September 27, 1996 was the last day a motion could be made by the person appointed by the Surrogate Court. At the close of the hearing, the court directed both sides to submit papers citing the transcript of the hearing on the issue of Feely's contempt.

 On several different occasions, Cohen wrote the court requesting leave to withdraw as defendant's counsel, citing Rule 25 to argue that because there had been no substitution of parties, the contempt motion should have been dismissed as of September 27, 1996. Cohen argued that Feely was completely uncooperative as a client and had not paid him for his services and that he was in the process of suing Feely for his attorney's fees. The court denied Cohen's request. *fn4" On October 11, 1996, Lenora Albano informed the court that she was appointed the executrix of the D'Orange estate by the Surrogate Court and that she was retaining Bruce DiCicco as the attorney for the estate and related matters, including the district court contempt action. On October 17, 1996, DiCicco requested an extension to file the briefs on the contempt issue since William Dunnegan, the trial attorney, had recently withdrawn from the case. The court granted the extension.

 On January 17, 1997, this court held a conference on the issue of Feely's contempt. Albano, the executrix; DiCicco, the estate attorney; Dunnegan, plaintiff's former trial attorney; and Feely were present. Cohen did not appear, despite the direct orders of this court. At the hearing and pursuant to 28 U.S.C. 1915, *fn5" this court had planned to direct plaintiff to file an affidavit attesting to the estate's lack of funding and to appoint Dunnegan as plaintiff's attorney, granting him attorney fees as in other cases. However, Dunnegan informed the court that the estate did in fact have money, approximately $ 120,000 in cash, which had been recovered from the New York State client protection fund which protects clients from fraud committed by their attorneys. *fn6" (see Transcript of Contempt Hearing dated January 17, 1997, p. 3-4). The money had actually been recovered by D'Orange a few days prior to her death and now belonged to her estate. (Tr. p. 6). Albano, who was also a one-third beneficiary of D'Orange's estate, indicated that it was the other two beneficiaries who did not see the utility in pursuing litigation against Feely as they saw no hope of recovering from Feely and, therefore, did not wish to use the limited resources to proceed in the action. (Tr. p. 3).

 The court noted that although plaintiff did not wish to proceed, the court had an interest in vindicating its authority, since during the history of this case, Feely had exhibited continuous disrespect of and refusal to obey court orders. At the close of the hearing, the court indicated that it would make its findings of fact and conclusions of law as to Feely's civil contempt and would initiate a criminal contempt proceeding against him by referring the case to the United States Attorney.

 II. Civil or Criminal Contempt

 It is a firmly established principal that federal courts possesses the inherent power to punish for contempt. see, Chambers v. NASCO, Inc., 501 U.S. 32, 43, 115 L. Ed. 2d 27, 111 S. Ct. 2123, (1991) ("Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.") (quotation omitted); Young v. United States ex rel. Vuitton et Fils, S.A., 481 U.S. 787, 795, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987); Abrams v. Terry, 45 F.3d 17 (2d Cir. 1995). These powers reach conduct before the court and beyond the court's confines, Young, 481 U.S. at 798, and are "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers, 501 U.S. at 43 (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962)).

 A court's inherent power to hold a party in civil contempt may only be exercised when "(1) the order the party allegedly failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted in a reasonable manner to comply. N.Y. State Nat. Organization for Women v. Terry, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990); EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n., 753 F.2d 1172, 1178 (2d Cir. 1985), aff'd, 478 U.S. 421, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986); Nudelman v. Siag, 1996 U.S. Dist. LEXIS 11443, 1996 WL 451379, 2 (S.D.N.Y. 1996). In the matter before this court, it is clear that the prerequisites for holding a party in civil contempt have been met.

 This court's November 13, 1995 and February 14, 1996 orders specifically directed Feely to comply with Plaintiff's Notice of Deposition. Feely did not violate this court's November 13, 1995 order by not appearing at the scheduled deposition since he legitimately received a stay from the Second Circuit. However, Feely in no way complied with this court's February 14, 1996 order. At his February 23, 1996 deposition, Feely did not produce the requested documents (except for a single page of a bank statement) and refused to answer many questions posed to him at his deposition, sometimes at the instruction of his attorney, Mr. Wales.

 At the contempt hearing held in August, Feely's deposition transcript was offered into evidence by plaintiff, without objection, as proof of Feely's failure to produce documents pertaining to his assets and interests. Defendant argues that the order did not require the production of particular documents nor the answering of specific questions, particularly those pertaining to Feely's clients and their accounts. Essentially, defendant argues that because the order was unclear and ...

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