Daniel F. Kelleher Auctions, LLC v. Huh

          RULING ON MOTION FOR SANCTIONS

          Robert M. Spector United States Magistrate Judge.

         Although familiarity with the proceedings in this action is presumed (see Doc. Nos 11, 16-20, 22-26, 29), a recitation of the procedural history follows.

         On June 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).

         On 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 plaintiff.

         On 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).

         On 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 requested that the defendant be found in civil contempt, and ordered both to pay a fine of $1, 000 for every day that the defendant failed to comply with the order compelling his attendance, and to reimburse the plaintiff for costs and fees for “maintaining this proceeding.” (Doc. No. 17 at 1-2). Additionally, in its brief in support of its Motion, the plaintiff stated 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).

         On May 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 omitted), 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 2) (emphasis omitted).

         On June 13, 2018, the plaintiff filed an affidavit of service of the Order to Show Cause which detailed 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 this address. (Doc. No. 22). On the same day, the plaintiff filed a second affidavit indicating that service was made upon Yuvarka Huh, the defendant's wife at the same Leigh Street address. (Doc. No. 23).

         The 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 had an email address for the defendant, linked to the defendant's Ebay account from which the defendant sold stamps. In addition to his various attempts at service detailed above, plaintiff's counsel emailed the defendant a copy of the Court's Order on May 24, 2018.

         At the hearing, the plaintiff reiterated its request for the issuance of a civil arrest warrant so that the plaintiff can “figure out” the defendant's assets, which could include money made from selling 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 for non-compliance.

         In accordance with the Court's direction at the hearing, on June 25, 2018, the plaintiff filed another 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, Ex. 1). In particular, the plaintiff moved pursuant to Fed.R.Civ.P. 37(b)(2) for attorney's fees and costs totaling $9, 850.20. (Doc. No. 25). Additionally, the plaintiff repeated 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 requested 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).

         On July 10, 2018, the Court granted, in part, the plaintiff's Motion for Sanctions (Doc. No. 25) in that it awarded attorney's fees and costs in the amount of $9, 850.20, but did not issue a civil arrest warrant or an order of civil contempt. (Doc. No. 26 at 4). The Court also ordered the defendant to appear at his deposition no later than August 15, 2018. (Doc. No. 26 at 4). In this order, the Court warned the defendant that, if he failed to comply with this Court's order to attend his deposition, the Court “may, and likely will, impose further sanctions, ...