Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kerr v. Financial

United States District Court, S.D. New York

February 3, 2017

DR. EUBULUS J. KERR, III, Plaintiff,
v.
JOHN THOMAS FINANCIAL, et al ., Defendants.

          HONORABLE KATHERINE B. FORREST, United States District Judge.

          CERTIFICATION OF FACTS, CONCLUSIONS OF LAW AND PROPOSED REMEDY

          HENRY PITMAN United States Magistrate Judge.

         I. Introduction

         By notice of motion dated September 19, 2016, plaintiff seeks an order holding defendant Anastasios Belesis in civil contempt for failure to satisfy a money judgment, failure to comply with subpoenas and committing perjury, pursuant to Fed.R.Civ.P. 37 and N.Y. C.P.L.R. § 5104 (Docket Item ("D.I.") 119).

         In the absence of the parties' consent to a magistrate judge's exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c), a magistrate judge can neither grant nor deny a motion for contempt. As explained by the Honorable John G. Koeltl, United States District Judge, a magistrate judge's role with respect to such a motion is limited by 28 U.S.C. § 636(e)(6) to certifying or declining to certify the facts as constituting contempt:

[28 U.S.C. § 636(e)(6)] provides that a United States Magistrate Judge shall, in a case other than one over which the magistrate judge presides with the consent of the parties under 28 U.S.C. § 636(c) or a misdemeanor case proceeding before the magistrate judge under 18 U.S.C. § 3401, certify facts constituting civil contempt to the district judge. See 28 U.S.C. § 636(e)(6)(A), (e)(6)(B)(iii). The magistrate judge may also issue an order requiring the individual found to have committed the acts in question to show cause before the district court why the individual should not be adjudged in contempt of court. See 28 U.S.C. § 636(e)(6).
Where the magistrate judge has certified facts constituting contempt, the district court must make an independent determination of the facts certified and consider any additional evidence. See 28 U.S.C. § 636(e)(6). The determination of whether the conduct constitutes contempt and, if so, what sanctions are appropriate are left to the discretion of the district court. 28 U.S.C. § 636(e)(6)(B).

JSC Foreign Econ. Ass'n Technostroyexport v. International Dev. & Trade Servs., Inc., 03 Civ. 5562 (JGK)(AJP), 2006 WL 1148110 at *1 (S.D.N.Y. Apr. 28, 2006); see also Hunter TBA, Inc. v. Triple V Sales, 250 F.R.D. 116, 117-18 (E.D.N.Y. 2008); Jones v. J.C. Penney's Dep't Stores, Inc., 228 F.R.D. 190, 198 (W.D.N.Y. 2005).

         For the reasons set forth below, I decline to certify the facts as constituting contempt.

         II. Facts

         A. Background

         The facts that give rise to this action are set forth in detail in the Opinion and Order of the Honorable Katherine B. Forrest, United States District Judge, dated July 16, 2015 (D.I. 88), granting plaintiff's motion to confirm a Financial Industry Regulatory Authority ("FINRA") arbitration award against the defendants. Familiarity with that opinion is assumed. I recite the facts here only to the extent necessary for an understanding of the dispute before me.

         On August 5, 2014, a FINRA arbitration resulted in an award of $920, 107.96 in favor of plaintiff and against the defendants (the "Award") (Amended Petition to Confirm Arbitration Award and Entry of Judgment thereon, dated Jan. 8, 2015 (D.I. 12) ("Petition") ¶ 13). Belesis and two other defendants were found to be liable, jointly and severally, for $915, 107.96 of the Award; defendant Joseph Castellano was found to be liable for $5, 000.00 of the Award (Petition ¶ 13). On October 20, 2014, plaintiff commenced an action in Supreme Court, New York County, seeking to confirm the Award (Notice of Removal, filed Nov. 18, 2014 (D.I. 1) ("Notice of Removal") ¶ 1). The defendants removed the action to this court on November 18, 2014 (Notice of Removal).

         On July 16, 2015, Judge Forrest granted plaintiff's motion to confirm the Award (Opinion and Order, dated July 16, 2015 (D.I. 88)), and a judgment confirming the Award was entered on July 22, 2015 (the "Judgment") (Judgment, dated July 22, 2015 (D.I. 89)).[1]

         In an effort to enforce the Judgment, on October 21, 2015, plaintiff attempted to serve Belesis with an information subpoena, pursuant to N.Y. C.P.L.R. Rule 5224, and a subpoena for documents, pursuant to Fed.R.Civ.P. 45 (Declaration of Brian J. Neville, Esq., dated Sept. 16, 2016 (D.I. 119-2) ("Neville Decl.") ¶¶ 6-7; Neville Decl., Ex. A). According to plaintiff, "[s]ervice was effected upon [Belesis'] doorman" (Neville Decl. ¶ 6). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.