United States District Court, E.D. New York
June 22, 2004.
FOX INDUSTRIES, INC., Plaintiff(s),
LEONID GUROVICH, et al., Defendant(s).
The opinion of the court was delivered by: WILLIAM D. WALL, Magistrate Judge
By Memorandum and Order dated April 28, 2004, District Judge
Thomas Platt found the defendant, Leonid Gurovich, also known as
Leo Gore ("Gore") and other aliases, and Gore's various corporate
personae, to be in contempt of earlier orders of the court,
including orders issued in October and November of 2003, and
referred the matter to the undersigned for a Report and
Recommendation "of what damages, fines, attorney's fees and
costs, and/or jail term shall be imposed upon Gore as punishment
for his contempt."
By Memorandum and Order dated May 26, 2004, Judge Platt
clarified his referral, noting that the undersigned's Report and
Recommendation should "assess . . . appropriate punishments for
each of Gore's three specific violations of the October and
November Orders: to wit, Gore's solicitation of the sale of
grinding media to Tape Systems, Incorporated and Bayer
CropSciences, and Gore's solicitation of the purchase of grinding
media from Nisuma International, Limited." (footnote omitted)
The May 26th Memorandum and Order further noted that the
court was "mindful of the fact that further undisclosed
violations of the October and November orders may have occurred,
as suggested by Gore's admission that Titon Industries was
`heavily involved in grinding media' after the issuance of these
Orders." To determine the extent of any additional violations,
which could be the subject of additional penalties or damages,
the Court directed Gore to "comply forthwith, with all
obligations, including specifically the disclosure obligations,
placed on him by the April 16th Order."
Prior to the issuance of the May 26th Memorandum and Order,
the plaintiff, by letter dated May 3, 2004, wrote to the
undersigned to alert the court to "an ongoing circumstance that
materially and prejudicially hampers Fox's ability to present
evidence of the appropriate contempt damages and sanctions to be
imposed" based on the April 28th order. 5/3/04 Saffer Letter
at 1. The plaintiff interpreted Judge Platt's entry of an April
16, 2004 Order to Show Cause to require the defendants to provide
various statements that would enable Fox "to identify the scope
of the defendants' contumacious conduct." Id. at 1-2. The
plaintiff argues that, pursuant to the April 16th Order to
Show Cause, the information was due by April 21, 2004.
The defendants, on the other hand, in a Motion for
Reconsideration of the Memorandum and Order dated May 26, 2004,
argued that the April 16th Order did not compel the
production of the information sought by the plaintiff, and that
the April 16th Order imposed no disclosure obligations on the
defendants, but merely required them to show cause whether such
disclosure obligations, together with other relief, should be
imposed on them.
The undersigned declines to construe the disclosure obligations
imposed on the defendants by Judge Platt's April 16th
Memorandum and Order, but must move forward with the referral of
the determination of damages as clarified in the May 26th
Order. Thus, the undersigned orders the defendants to produce, by
June 28, 2004, those documents or statements listed in
paragraphs c, d, f, and g of the April 16th Order to Show
Cause, and described in the May 3, 2004 Letter of Michael Saffer.
If the defendants claim that any of the documents do not exist,
Gore must submit a sworn statement to that effect. After
receiving the documents, the plaintiff shall submit to the
undersigned, by July 7, 2004, its proposal, supported by
affidavits and/or documentary evidence and legal argument, of the
appropriate punishment to be imposed pursuant to Judge Platt's
May 26th Memorandum and Order. That punishment may include
damages, fines, attorney's fees and costs, and/or a jail term.
The defendants shall oppose the plaintiff's submission no later
than July 12, 2004. Reply papers, if any, shall be submitted by
the plaintiff no later than July 15, 2004. These dates indicate
the days on which the relevant papers must be in the hands of the
court and the opposing party. Simply mailing or fed-exing the
papers on the ordered dates will not suffice.
The court notes that this order is independent of any earlier
orders issued in this case by Judge Platt and is not subject to
the determination of any pending motions.
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