On November 15, 1996, Cohen submitted a post-hearing memorandum arguing that Feely complied with this court's orders but did not cite the transcript to support his position, as this court had directed. Cohen also sent a copy of the memo to Feely. Cohen maintained that he had no intentions of paying for the transcript since Feely had not paid him. He asserted that the memorandum was based on his 'clear' recollection of the contempt hearing. Four days later, Ms. Albano informed the Court that she lacked the funds to continue the pending contempt action against Feely and sought the relief of the court in whatever capacity it deemed appropriate. Plaintiff, therefore, did not submit a brief.
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,
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.
(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 ambiguous, he cannot be held in contempt. However, it is clear that Plaintiff's Notice of Deposition requested the following:
1. Bank accounts in which Feely had an interest since 1990.