United States District Court, D. Connecticut
DANIEL F. KELLEHER AUCTIONS, LLC
RULING ON MOTION FOR SANCTIONS AND CERTIFICATION OF
FACTS TO THE DISTRICT JUDGE PURSUANT TO 28 U.S.C. §
M. SPECTOR UNITED STATES MAGISTRATE JUDGE
FACTUAL AND PROCEDURAL BACKGROUND
9, 2016, the plaintiff, Daniel F. Kelleher Auctions, LLC,
commenced this action 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),
followed, on April 18, 2017, by a default judgment under
Fed.R.Civ.P. 55(b), in the amount of $203, 575.10 in favor of
the plaintiff. (Doc. No. 11; see also Doc. No. 10).
FIRST MOTION FOR SANCTIONS - REQUEST FOR CIVIL CONTEMPT
& MOTION FOR ORDER TO SHOW CAUSE
November 15, 2017, the plaintiff moved to compel the
defendant to appear for a post-judgment deposition and to
produce certain documents (Doc. No. 14), which the Court
granted on January 2, 2018 by electronic order, after no
brief in opposition was filed. (Doc. No. 16).
months later, 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). In the Motion, the plaintiff requested that the
defendant be found in civil contempt, ordered to pay a fine
of $1, 000 for every day that he failed to comply with the
award compelling his attendance, and award costs and fees to
the plaintiff. (Doc. No. 17 at 1-2). Additionally, in its
brief in support of its Motion, the plaintiff stated that
counsel for the 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 22, 2018, the Motion
was referred to this Magistrate Judge. (Doc. No. 19).
next day, 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[, ]”and
ordered the defendant to appear before the Court on June 18,
2018. (Doc. No. 20 at 2).
13, 2018, the plaintiff filed an affidavit of service of the
Order to Show Cause which detailed 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 detailed
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. No. 23).
JUNE 2018 SHOW CAUSE HEARING
defendant neither filed a response to the plaintiff's
motion as ordered by this Court, nor appeared at the June
18th show cause hearing. (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; the plaintiff
subpoenaed the Ebay records, and confirmed that the email
address was attached to the defendant's active Ebay
account. Thus, in addition to the service made on the
defendant's wife, as referenced above, plaintiff's
counsel emailed the defendant a copy of the Court's Order
on May 24, 2018.
plaintiff reiterated its request for the issuance of a civil
arrest warrant so that the plaintiff could “figure
out” the defendant's assets, which might 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.
SECOND MOTION FOR SANCTIONS AND REQUEST FOR CONTEMPT
accordance with the Court's direction at the hearing, on
June 25, 2018, the plaintiff filed another Motion for
Sanctions (Doc. No. 25), pursuant to Fed.R.Civ.P. 37(b)(2),
seeking $9, 850.20 of attorney's fees and costs incurred.
(Doc. No. 25-1, Ex. 1). 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).
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 that 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,
including attorney's fees and costs incurred by the
plaintiff in pursuing this matter” and may also issue
a civil arrest warrant. (Doc. No. 26 at 4).
THIRD MOTION FOR SANCTIONS
August 17, 2018, the plaintiff filed another Motion for
Sanctions. (Doc. No. 27), which was referred to this
Magistrate Judge three days later. (Doc. No. 28). In this
motion, plaintiff's counsel represented that his process
server made nine unsuccessful attempts to serve the defendant
at his known personal residence with a copy of the
Court's July 10, 2018 order and a subpoena for the
defendant to appear at a scheduled August 7, 2018 deposition.
(Doc. No. 27 at 1). The process server noted that the air
conditioning units in the defendant's residence were on
at the time of his attempts and that the vehicles parked at
the residence had been moved in between attempts at service.
(Doc. No. 27 at 1). In addition, a neighbor advised the
process server that the defendant was inside the residence
when the process server was knocking on his front door. (Doc.
No. 27 at 1). Moreover, according to the plaintiff, on July
18, 2018 and July 31, 2018, the process server effected
service by both affixing copies of the Court's July 10,
2018 order and the deposition subpoena to the front door of
the defendant's residence and by mailing copies of these
same documents to the residence in an envelope marked
“Personal and Confidential.” (Doc. No. 27 at 1;