This would seem particularly true where, as here, the parties vigorously were litigating the ownership of property.
In short, because the Court did not make a clear error of law in setting the amount of restitution, the government's motion to alter or amend is DENIED in its entirety.
B. Government's Motion for An Injunction
Lastly, the government moves, pursuant to 26 U.S.C. § 7402 and 28 U.S.C. § 1651, for an injunction against plaintiff and all of plaintiff's successors in interest with actual notice of these proceeding, including the Syndicate, Margaux and other interest-holders in Devil His Due, to refrain from further dissipating the proceeds of Devil His Due should any appeal be taken.
A party seeking a preliminary injunction must establish that it will suffer irreparable harm in the absence of an injunction and demonstrate either (1) "a likelihood of success on the merits," or (2) "sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly" in the movant's favor. Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (citing Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 779-80 (2d Cir. 1994)) (quotation marks omitted); Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314-15 (2d Cir. 1982). However, at "an even more fundamental level," a preliminary injunction cannot be issued against a party unless the court has personal jurisdiction over that party. Weitzman v. Stein, 897 F.2d 653, 658 (2d Cir. 1990); Davidson v. Coughlin III, 1995 U.S. Dist. LEXIS 19077, 1995 WL 760646, *1 (N.D.N.Y. Nov. 27, 1995); 11A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 2956, at 33-35 (2d ed. 1995).
In the instant case, the Court has determined that it has no in personam jurisdiction over Margaux or any other party to the Syndicate Agreement, other than the plaintiff. Libutti, 1997 WL 570493, at *1-3. Thus, the Court has no power to grant an injunction against Margaux or any other Syndicate member. See, e.g., Weitzman, 897 F.2d 653 at 658. Similarly, the government has not shown that the Court has personal jurisdiction over any other persons who may be plaintiff's successors in interest. Id. Therefore, the Court will not issue an injunction against any such unidentified persons.
With respect to the government's request to enjoin plaintiff from dissipating the proceeds she received from Devil His Due prior to July 2, 1997, that request also must be denied. The government rests its irreparable harm showing on the belief that further transfers of the proceeds may render plaintiff insolvent. Although "as a general rule . . . a party may not obtain injunctive relief where it is claiming a loss that can be adequately remedied by an award of money damages," Feit & Drexler, Inc. v. Green, 760 F.2d 406, 416 (2d Cir. 1985) ("Feit "), "preliminary injunctions are proper to prevent a defendant from making a judgment uncollectible." Republic of Philippines v. Marcos, 806 F.2d 344, 356 (2d Cir. 1986), cert. dismissed, 480 U.S. 942, 94 L. Ed. 2d 784, 107 S. Ct. 1597, and cert. denied, 481 U.S. 1048, 95 L. Ed. 2d 835, 107 S. Ct. 2178 (1987). In these cases, however, courts have found the movant to possess a bona fide concern that the party is likely to become insolvent. See, e.g., Seide v. Crest Color, Inc., 835 F. Supp. 732, 735-36 (S.D.N.Y. 1993). Here, the government has offered no evidence to indicate that the plaintiff intends to hide her assets or otherwise become judgment proof.
See, e.g., Id.; Feit, 760 F.2d at 416.
Accordingly, the Court DENIES the government's request for injunctive relief.
For the reasons stated above, plaintiff's motion for a new trial and amendment of judgment is DENIED in its entirety. Additionally, the government's motion for limited discovery on the issue of whether the Court has personal jurisdiction over Devil His Due Syndicate members is DENIED. Lastly, the government's motion to alter or amend the Court's Memorandum-Decision & Order of August 4, 1997 is DENIED in its entirety, and the government's motion for an injunction pending appeal is DENIED.
IT IS SO ORDERED.
Dated Nov. 25, 1997
at Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge