United States District Court, S.D. New York
DR. EUBULUS J. KERR, III, Plaintiff,
JOHN THOMAS FINANCIAL, et al ., Defendants.
HONORABLE KATHERINE B. FORREST, United States District Judge.
CERTIFICATION OF FACTS, CONCLUSIONS OF LAW AND
PITMAN United States Magistrate Judge.
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
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. §
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).
reasons set forth below, I decline to certify the facts as
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
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).
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)).
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).