United States District Court, S.D. New York
TRUSTEES OF THE TEAMSTERS LOCAL 456 PENSION, HEALTH & WELFARE ANNUITY, EDUCATION & TRAINING, S.U.B., INDUSTRY ADVANCEMENT AND LEGAL SERVICES FUNDS and THE WESTCHESTER TEAMSTERS LOCAL UNION NO. 456, Plaintiffs,
A.G. CONSTRUCTION CORPORATION, a/k/a A.G. CONSTRUCTION OF NEW JERSEY, Defendant.
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
the Trustees of the Teamsters Local 456 Pension, Health &
Welfare Annuity, Education & Training, S.U.B., Industry
Advancement and Legal Services Funds and the Westchester
Teamsters Local Union NO. 456 brought this action against
Defendant A.G. Construction Corporation seeking payment for
unpaid contributions owed to the benefit funds. On August 10,
2012, the Court issued a default judgment against Defendant.
Before the Court is Plaintiffs' motion for civil contempt
pursuant to Federal Rule of Civil Procedure 45(g).
reasons stated below, Plaintiffs' motion for contempt is
filed the Complaint on April 16, 2012. (Doc. 1) Defendant was
served on May 2, 2012. (Doc. 2) On June 27, 2012, Plaintiffs
filed a request for the Court to enter a default judgment due
to Defendant's failure to appear or answer the Summons
and Complaint. (Doc. 3) Two days later, on June 29, the Court
issued an Order to Show Cause ordering Defendant to appear
for a conference to explain why default judgment should not
be entered against it. (Doc. 4) The Order to Show Cause was
amended and Defendant was ordered to appear on August 10,
2012. (Doc. 5) The Show Cause hearing was held, but neither
Defendant, nor its counsel, appeared. Consequently, that day,
the Court entered a default judgment against Defendant in the
amount of $261, 516.01 (the “Judgment”). (Doc. 7)
to enforce the Judgment, on December 16, 2015, Plaintiffs
filed a letter motion seeking to compel Defendant's Chief
Executive Officer Antonio Goncalves to respond to
Plaintiffs' post-judgment discovery requests and appear
for a deposition. (Doc. 11) In the letter, Plaintiffs
explained that Goncalves was personally served with a copy of
a subpoena to testify at a deposition and appeared at
Plaintiffs' office requesting additional time to obtain
counsel for the deposition. Id. On April 30, 2015,
Michael A. McLaughlin, Esq., who indicated that he was
counsel for Goncalves, contacted Plaintiffs and requested
copies of the Complaint and the Judgment. Plaintiffs promptly
emailed Mr. McLaughlin the documents requested and inquired
about Goncalves's availability for a deposition.
Id. Plaintiffs claim that Mr. McLaughlin did not
respond to their email or any subsequent requests for
discovery. Id. Consequently, Plaintiffs sought an
order directing Goncalves to respond to discovery requests
and appear for a deposition. Id. On December 18,
2015, Magistrate Judge Paul E. Davison issued the order to
than two months later, Plaintiffs filed a letter requesting a
pre-motion conference to seek leave to file a motion for
civil contempt against Goncalves for failure to comply with
the subpoena and Magistrate Judge Davison's order. (Doc.
20) The Court granted Plaintiffs' request and scheduled a
conference for March 15, 2016. (Doc. 22) Though the
pre-motion conference was held, Defendant, Defendant's
counsel, Goncalves, and his counsel did not appear. As a
result, the Court issued an Order directing Goncalves to
produce all documents sought in the subpoena by April 7, 2015
and appear for a deposition on April 28, 2016. (Doc. 24) The
Order further warned Goncalves that “failure to comply
with this order may result in a finding of contempt and such
punishment may consist of a fine or imprisonment or both
according to law.” Id. However, neither
Goncalves nor his counsel appeared for the deposition on
April 28, 2016. See Declaration of Jonathan Bardavid
in Support of Plaintiffs' Motion for Contempt
(“Bardavid Decl.”) (Doc. 30) Ex. E.
19, 2016, after receiving no response from Defendant or
Goncalves, Plaintiffs filed the instant motion. (Doc. 29)
Plaintiffs request that the Court hold Goncalves in contempt
and impose a fine of $250.00 and award Plaintiffs'
attorneys' fees and expenses in the amount of $5, 387.56.
Id. To date, neither Defendant nor Goncalves has
filed a response to Plaintiffs' motion nor appeared
before this Court.
Rule of Civil Procedure 45(g) provides that a court
“may hold in contempt a person who, having been served,
fails without adequate excuse to obey the subpoena or an
order related to it.” Fed.R.Civ.P. 45. “A
contempt order is warranted only where the moving party
establishes by clear and convincing evidence that the alleged
contemnor violated the district court's edict.”
Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties,
Ltd., No. 07 Civ. 7983 (DAB), 2014 WL 1201905, at *3-4
(S.D.N.Y. Mar. 24, 2014) (citing Hart Schaffner &
Marx v. Alexander's Dep't Stores, Inc., 341 F.2d
101, 102 (2d Cir. 1965) (per curiam )). A movant
must establish that (1) the order the contemnor failed to
comply with is clear and unambiguous, (2) the proof of
noncompliance is clear and convincing, and (3) the contemnor
has not diligently attempted to comply in a reasonable
manner. See Nimkoff, 2014 WL 1201905, at *4 (citing
New York State Nat'l Org. for Women v. Terry,
886 F.2d 1339, 1351 (2d Cir.1989)).
it is clear from the record that Goncalves has failed to
comply with the Court's orders. First, the orders from
both this Court and Magistrate Judge Davison were clear and
unambiguous. The orders simply directed Goncalves to either
appear for a conference or produce discovery pursuant to the
subpoena. Indeed, since December 2015, Goncalves has been
directed to appear or otherwise respond to Plaintiffs'
subpoena and discovery requests four times. It is also clear
from the docket that Goncalves has not responded, nor has he
made any attempt to respond, to any of the orders. As such,
the Court holds Goncalves in contempt and awards Plaintiffs
their reasonable attorneys' fees and costs. See
Sprint Nextel Corp. v. Ace Wholesale, Inc., No. 12 Civ.
2902 (JEC), 2014 WL 4308355, at *1-2 (S.D.N.Y. Aug. 26, 2014)
(holding defendant in contempt for failure to comply with
plaintiffs' subpoena and awarding plaintiffs'
reasonable attorneys' fees and costs).
the motion, Plaintiffs have submitted a declaration detailing
the attorneys' fees incurred attempting to secure
production of the requested discovery. See Bardavid
Decl. Ex. G. The total amount of attorneys' fees
requested is $3, 677.50. Plaintiffs also assert that they
have incurred $1, 710.06 in costs associated with its
enforcement attempts in court reporter costs, service fees,
and mailings. The Court finds that Plaintiffs' request
for $5, 387.56 is reasonable and hereby directs Goncalves to
pay Plaintiffs' attorneys that sum by March 10,
reasons set forth above, Plaintiffs' motion for contempt
is GRANTED. The Clerk of Court is respectfully ...