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Capital Distribution Services, Limited v. Ducor Express Airlines

November 16, 2006

CAPITAL DISTRIBUTION SERVICES, LIMITED, PLAINTIFF,
v.
DUCOR EXPRESS AIRLINES, INC.; MABUTU M. KAMARA, SIMON BARRY; KHADY KAMARA, ABOU KAMARA; AND VIVIAN KAMARA, DEFENDANTS.



The opinion of the court was delivered by: Gershon, United States District Judge

OPINION AND ORDER

In this action, plaintiff Capital Distribution Services, Ltd. ("CDS") seeks to recover funds paid to defendant Ducor Express Airlines, Inc. ("Ducor") for the provision of cargo flights that Ducor failed to provide. Ducor has confessed judgment on CDS's claim of breach of contract and, on July 21, 2006, this court granted CDS summary judgment against defendants Mabutu M. Kamara ("Mabutu"), Khady Kamara ("Khady"), and Abou Kamara ("Abou") on its claims of fraudulent conveyance. In the same order, defendant Abou was preliminarily enjoined from taking any actions pertaining to certain real properties in Las Vegas, Nevada (the "Las Vegas Properties"), owned by Abou and defendant Vivian Kamara ("Vivian").

CDS now moves for certification of a final judgment on its fraudulent conveyance claim against Abou pursuant to Rule 54(b) of the Federal Rules of Civil Procedure and is prepared to withdraw its remaining claims against that defendant. In addition, CDS is prepared to withdraw all of its claims against Abou's wife, Vivian. CDS also seeks an award of its attorney's fees. No opposition to either the Rule 54(b) motion or the request for an award of attorney's fees has been filed.

The July 21, 2006 Partial Summary Judgment Order

The facts underlying the claim against Abou are detailed in the partial summary judgment order entered on July 21, 2006. See Capital Distrib. Servs., Ltd. v. Ducor Express Airlines, Inc., 440 F. Supp. 2d 195 (E.D.N.Y. 2006). Those facts, for brevity's sake, will not be reproduced here. Suffice to say that, after considering CDS's claims, this court found that "the transfers from Ducor to Abou, made between November 30, 2004 and February 2, 2005, totaling $242,500, constitute fraudulent conveyances . . . ." Id. at 207. This court, therefore, "grant[ed] summary judgment accordingly" and noted that "[u]pon a properly supported application at the conclusion of this action, CDS shall be entitled to recover its attorney's fees for prosecuting this claim from Ducor and Abou." Id.

Also based on the facts considered at the time, this court found that "Abou has taken steps to dissipate and conceal his assets and, unless the court issues an injunction, will continue to do so, which would frustrate CDS's attempts to collect a judgment against him, causing CDS irreparable injury." Id. at 210. This finding was based largely on Abou's purchase of the Las Vegas Properties with the funds he improperly received from Ducor. In response to his doing so, CDS commenced an action against Abou and Vivian in Nevada state court in November 2005 and filed notices of pendency on the Las Vegas Properties to prevent their transfer or encumbrance.*fn1 Shortly thereafter, Abou took steps to borrow an additional $43,000 against the property located at 6052 Draft Horse Drive and to put the property up for sale. After detailing these facts in the July 21, 2006 partial summary judgment order, this court found that "the record as a whole demonstrates that Abou . . . has been engaged in a pattern of conduct designed to frustrate any efforts by CDS to collect the money owed to it by Ducor", and thus enjoined Abou "from taking any action to transfer, dispose of, encumber, or otherwise reduce or jeopardize his interest in the real properties located at 6052 Draft Horse Drive, North Las Vegas, Nevada, 89031; 1732 Mizzenmast Avenue, North Las Vegas, Nevada 89032; and 3313 Conterra Park Avenue, North Las Vegas, Nevada 89081 during the pendency of this action." Id. at 211.

Facts Arising After the July 21, 2006 Partial Summary Judgment Order

On September 1, 2006, Abou's Las Vegas attorneys, Lin & Associates, served upon CDS's Las Vegas attorneys, Sylvester & Polednak, Ltd., a "Notice of Lien for Attorneys' Fees and Costs" against the Las Vegas Properties in order to secure Lin & Associates' claim for attorneys' fees for their representation of Abou and Vivian in the Las Vegas action. (See Schneider Aff., Ex. A, Notice of Lien.) The lien, dated August 31, 2006, was filed in the Nevada state court action, and is in the amount of $28,803.76, "plus additional attorneys' fees and costs owed . . . which have not yet been billed." Id. The lien was filed, albeit by Lin & Associates, despite the preliminary injunction prohibiting Abou from taking any action which would reduce his interest in the Las Vegas Properties. It was also filed despite the fact that Lin & Associates had not commenced an action against Abou on their claim for unpaid fees.

CDS's Motion for Rule 54(b) Certification

Approximately one month after learning of the lien, on October 9, 2006, CDS moved this court for certification of a final judgment against Abou pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. In its papers, CDS argues that 54(b) certification is necessary to avoid the prejudice which it is likely to suffer as a result of delay in entering and enforcing its judgment against Abou. CDS offers two bases for its conclusion that delay will result in prejudice: (1) the actions of Abou and his attorneys will render an eventual final judgment uncollectible; and (2) the value of the Las Vegas Properties will plummet as a result of the decline of the Las Vegas real estate market.

In support of its first point, CDS alleges that Lin & Associates improperly filed the August 31, 2006 lien either with Abou's consent or at his direction in order to thwart CDS's recovery on its judgment against Abou. CDS argues that, notwithstanding the preliminary injunction, there exists a serious risk that absent prompt entry of final judgment, Abou and his attorneys will succeed in rendering an eventual final judgment either partially or wholly uncollectible. With regard to its second point, CDS asks this court to take note of the "continuing slide in the residential housing market in Las Vegas and nationally", and argues that delay in securing final judgment will render the Las Vegas Properties, which were improperly purchased with CDS's funds, significantly less valuable. Pl.'s Mem.,10.

Finally, CDS seeks recovery of the attorney's fees it incurred in pursuing its fraudulent conveyance claim against Abou. To that end, CDS draws the court's attention to its prior ruling that "[u]pon a properly supported application at the conclusion of this action, CDS shall be entitled to recover its attorney's fees for prosecuting this claim from Ducor and Abou." Capital Distrib. Servs., 440 F. Supp. 2d at 207.

DISCUSSION

I. CDS's Motion for Certification ...


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