United States District Court, D. Connecticut
DANIEL F. KELLEHER AUCTIONS, LLC
RULING ON MOTION FOR SANCTIONS
M. Spector United States Magistrate Judge
9, 2016, the plaintiff, Daniel F. Kelleher Auctions, LLC,
filed a complaint against the defendant, Eugene Huh,
alleging, inter alia, breach of contract, fraud and
violations of New York General Business Law § 349. (Doc.
No. 1). On October 5, 2016, the Court entered a default
against the defendant under Fed.R.Civ.P. 55(a). (Doc. No. 9).
October 28, 2016, the plaintiff moved for entry of default
judgment against the defendant under Fed.R.Civ.P. 55(b), and,
on April 18, 2017, the Court granted this motion in a
separate order. (Doc. No. 11). The order entered a judgment
by default in the amount of $203, 575.10 in favor of the
November 15, 2017, the plaintiff moved to compel the
defendant to appear for a post-judgment deposition and to
produce certain documents. The Court granted the motion on
January 2, 2018 by electronic order, after no brief in
opposition was filed. (Doc. No. 16).
April 3, 2018, the plaintiff filed a Motion for an Order to
Show Cause and for sanctions against the defendant for
failure to pay the judgment and failure to comply with the
Court's January 2, 2018 order. (Doc. No. 17). On May 22,
2018, the Motion was referred to this Magistrate Judge. (Doc.
No. 19). In the Motion, the plaintiff requests that the
defendant be found in civil contempt, ordered to pay a fine
of $1, 000 for every day that the defendant fails to comply
with the order compelling his attendance, and award costs and
fees to the plaintiff for “maintaining this
proceeding.” (Doc. No. 17 at 1-2). Additionally, in its
brief in support of its Motion, the plaintiff states that
counsel for plaintiff notified the defendant of the
Court's January 2, 2018 order via electronic mail, but
was unable to serve him with the notice and the subpoena for
the deposition. (Doc. No. 18 at 1-2).
23, 2018, this Court issued an Order to Show Cause in which
the defendant was ordered to “file and serve any
written response to the plaintiff's motion for an order
to show cause on or before June 11, 2018[,
]” (Doc. No. 20 at 2)(emphasis in original), and
ordered the defendant to “appear before the United
States District Court, Courtroom 5, 141 Church Street, New
Haven, Connecticut on June 18, 2018 at 2:00
p.m. to show cause why he should not be adjudged in
civil contempt of this Court and why the sanctions sought by
the plaintiff should not be granted.” (Doc. No. 20 at
13, 2018, the plaintiff filed an affidavit of service of the
Order to Show Cause which details the five attempts made to
effectuate in hand service on the defendant at his address:
26 Leigh Street, Williston Park, NY 11596. (Doc. No. 22). A
copy of the Order was also mailed to the defendant at that
address. (Doc. No. 22). On the same day, the plaintiff filed
a second affidavit of Order to Show Cause which details that
service was made upon Yuvarka Huh, the defendant's wife,
at 26 Leigh Street, Williston Park, NY 11596. (Doc. No. 23).
A copy of the Order was also mailed to that address. (Doc.
defendant failed to file a response to the plaintiff's
motion, and failed to appear at the show cause hearing before
this Court on June 18, 2018. (Doc. No. 24). At the hearing,
counsel for the plaintiff represented that he has an email
address for the defendant, linked to the defendant's Ebay
account from which the defendant sells stamps; the plaintiff
subpoenaed the Ebay records, and the email that the plaintiff
has used is attached to the defendant's active Ebay
account. Plaintiff's counsel emailed the defendant a copy
of the Court's Order on May 24, 2018, and, as detailed in
the affidavit referenced above, the plaintiff effectuated
service on the defendant's wife at their residence on May
plaintiff reiterated its request for the issuance of a civil
arrest warrant so that the plaintiff can “figure
out” the defendant's assets, which may include
money made from selling these stamps on Ebay. Additionally,
the plaintiff reiterated its request for sanctions for the
fees and costs of the original deposition, the filing of the
Motion to Compel, the filing of the Motion for Order to Show
Cause, and the fees and costs incurred in connection with the
hearing. The plaintiff also requested that additional
sanctions be imposed upon the defendant, up to $1, 000 a day.
accordance with the Court's direction at the hearing, on
June 25, 2018, the plaintiff filed the pending Motion for
Sanctions (Doc. No. 25), along with an affidavit of counsel
(Doc. No. 25-1), and time sheet substantiating the
attorney's fees and costs incurred (Doc. No. 25-1, Exh.
plaintiff moves pursuant to Fed.R.Civ.P. 37(b)(2) for
attorney's fees and costs totaling $9, 850.20. (Doc. No.
25). A party may move for sanctions from the court where the
action is pending, if a party “fails to obey an order
or permit discovery[.]” See Fed. R. Civ. P.
37(b)(2)(A). “Instead of or in addition to the orders
[listed in Rule 37(b)(2)(A), ] the court must order the
disobedient party, . . . to pay the reasonable expenses,
including attorney's fees, caused by the failure . . .
.” Fed.R.Civ.P. 37(b)(2)(C). Rule 37(d) provides that
if a party fails to appear for a properly noticed deposition,
the court may impose sanctions, including an award of
reasonable attorney's fees and expenses. Fed.R.Civ.P.
case, the plaintiff seeks an award of: (1) $1, 278.00 in
attorney's fees and costs associated with the September
17, 2017 deposition that the defendant failed to attend; (2)
$4, 242.50 in attorney's fees and costs associated with
the Motion to Compel (Doc. No. 14), and notifying the
defendant of the Court's Order; and, (3) $4, 330.00 in
attorney's fees and costs associated with the Motion for
Order to Show Cause (Doc. No. 17) and the hearing regarding
the same. (Doc. No. 25 at 1). Additionally, the plaintiff
repeats its request for additional sanctions of up to $1, 000
per day from January 12, 2018, the date of the Court's
Order granting the plaintiff's Motion to Compel (Doc. No.
16), and requests that this Court issue an order adjudging
the defendant in civil contempt of this Court's Order and
issue a Form AO442. (Doc. No. 25 at 1).
plaintiff's Motion for Sanctions (Doc. No. 25) is GRANTED
IN PART such that attorney's fees and costs are
awarded in the amount of $9, 850.20. The defendant
is ORDERED to appear at his deposition which shall take place
no later than AUGUST 15, 2018.
defendant is hereby warned that if he fails to comply
with this Court's order to attend his deposition, the
Court may, and likely will, impose further sanctions,
including attorney's fees and costs incurred by the
plaintiff in pursuing this matter.See Dichiara
v. Pelsinger, No. 3:08-CV-1038(CSH), 2010 WL 3613798, at
*1-2 (D. Conn. Aug. 30, 2010); see also State Farm Fire
and Cas. Co. v. Brown, No. 3:08 CV 1778(RNC), 2009 WL
3734067, at *1 (D. Conn. Nov. 6, 2009). Additionally, the