Opinion

Marchella of NY Inc. v. Mejia Tropical Products LLC

Court
District Court, E.D. New York
Filed
Jun 22, 2022
Cited by
0 cases
Authority
More cited than 26.7%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MARCHELLA OF NY INC. No. 22-cv-551 (JS)(ST)

and NORTHEAST BANANA CORP.,

MEMORANDUM & ORDER

Plaintiffs, Re: Motion for Contempt

- against -

MEJIA TROPICAL PRODUCTS LLC

and MARVIN E. MEJIA,

Defendants.

APPEARANCES

For Plaintiffs: Gregory A. Brown, Esq.

McCarron & Diess

576 Broadhollow Road, Suite 105

Melville, New York 11747

For Defendants: No appearance.

SEYBERT, District Judge:

Presently before the Court is the unopposed Motion for

Contempt (hereafter, the “Motion”) of Plaintiffs Marchella of NY

Inc. (“Marchella”) and Northeast Banana Corp. (“Northeast”; together

with Marchella, the “Plaintiffs”) seeking an order (1) holding

defendants Mejia Tropical Products LLC (“Mejia Tropical”) and Marvin

E. Mejia (“Mejia”; together with Mejia Tropical, the “Defendants”)

in civil contempt, (2) directing the U.S. Marshals Service hold

Mejia in custody pending the purging of the Defendants’ contempt,

and (3) awarding Plaintiffs the fees and expenses incurred in

bringing this Motion. (See Motion, ECF No. 20; see also Support

Memo, ECF No. 22; Brown Support Decl., ECF No. 21.) For the

following reasons, the Motion is GRANTED to the extent articulated

herein.

BACKGROUND

The Court presumes familiarity with the facts underlying

this case, but provides the following summary for the reader’s

convenience, with the facts being drawn primarily from Attorney

Brown’s Support Declaration (see ECF No. 21).

Marchella commenced this action on January 31, 2022,

seeking to recover monies from Defendants, jointly and severally,

pursuant to the trust provisions of the Perishable Agricultural

Commodities Act, 7 U.S.C. § 499a, et seq. (“PACA”) for wholesale

quantities of produce it delivered to Defendants. (See Compl.,

ECF No. 1.)

Together with its Complaint, Marchella also sought an

emergency temporary restraining order against Defendants (see ECF

No. 2), which was granted; thus, on January 31, 2022, this Court

entered its “Temporary Restraining Order & Order to Show Cause Why

a Preliminary Injunction Should Not Be Issued Under Fed. R. Civ.

P. 65(b)” (hereafter, the “TRO”). (See ECF No. 9.) Among other

things, the TRO scheduled a February 10, 2022 hearing on

Marchella’s motion for a preliminary injunction against

Defendants. (See Prelim. Inj. Mot., ECF No. 3.)

On February 7, 2022, Northeast joined in this action

with the filing of an amended complaint (See Am. Compl., ECF No.

11). In aggregate, the Plaintiffs seek $209,252.50 in PACA trust

assets from Defendants. Northeast also joined Marchella’s request

for a preliminary injunction. (See Am. Mot. Prelim. Inj., ECF No.

12.)

At the February 10, 2022 preliminary injunction hearing,

no one appeared for the Defendants. (See Feb. 10., 2022 Min.

Entry, ECF No. 16; see also Brown Support Decl. ¶ 7 (“Despite

Defendants having been served twice, they failed to appear at the

February 10 preliminary injunction hearing.”).) Upon a showing

that Plaintiffs were entitled to a preliminary injunction under

PACA, the Court granted the amended preliminary injunction motion.

(See Minute Entry, ECF No. 16.) In its Preliminary Injunction

Order (hereafter, the “PI Order”), the Court directed, in relevant

part, that Defendants and others, including Defendants’

successors, “deliver to Plaintiffs’ counsel the sum of $209,252.50

by bank check or wire transfer” and:

that within five business days of the date of

this Order, Defendants shall supply to

Plaintiffs’ counsel the following documents

regarding the assets of Mejia Tropical, its

successors, subsidiaries and related

companies: (1) most recent balance sheets and

profit/loss statements; (2) all accounts

receivable records showing all funds collected

by or on behalf of Defendants in the last sixty

days in addition to all records showing

accounts receivable currently outstanding,

including names, addresses, amounts and other

documentation such as invoices and account

statements necessary for collection purposes;

(3) all documents related to funds owed to

Defendants on behalf of credit/debit card

processors and any other electronic funds

transfers due Defendants; and (4) all

financial records, such as income tax returns,

bank account statements, checking account

registers and cash receipt records, showing

transfer of funds to or from Mejia Tropical in

the last six months; and . . . .

Defendants shall take such steps as are

necessary to preserve all of Mejia Tropical’s

books and records, whether electronic or

otherwise, and are required to fully cooperate

with Plaintiffs’ attorneys’ efforts to effect

collection of the accounts receivable of Mejia

Tropical, its successors, subsidiaries and

related companies by, among other things,

providing Plaintiffs’ attorneys with any and

all documents and things, including but not

limited to computers, software, usernames,

passwords and documents, reasonably requested

by Plaintiffs’ counsel in connection with

their collection efforts.

(PI Order, ECF No. 18, at 4, 5 (emphases added).) The PI Order

“was served on Defendants in the same manner as required by the

Federal Rules for service of a summons. Plaintiffs caused a copy

of the PI Order to be left with a person of suitable age and

discretion at Mejia’s home and by delivering a copy of the PI Order

to the New York State Secretary of State.” (Brown Support Decl.

¶ 10 (citing ECF Nos. 17 and 19, respectively).) Further,

Plaintiffs’ counsel “personally sent a text message to . . .

Mejia’s last known cell phone number providing a link Mejia could

use to view a PDF of the PI Order.” (Id. ¶ 11.) However,

“[d]espite Plaintiffs’ efforts to ensure Defendants received a

copy of the PI Order, Defendants have not contacted [Plaintiffs’

counsel’s] office or either of the Plaintiffs since the

commencement of this action.” (Id. ¶ 12.)

To date, Plaintiffs’ counsel has collected $10,522.00 of

the aggregate $209,252.50 due the Plaintiffs from the PACA trust

assets held by Defendants. (See Brown Support Decl. ¶¶ 3, 15.)

Plaintiffs’ counsel has not received any documentation from

Defendants. (See id. ¶ 12 (“Defendants have not produced a single

document to my office, turned over so much as a penny, nor have

they participated in any way with my office’s efforts to collect

Mejia Tropical’s accounts receivable.”).) Further, a review of

the Case Docket comports with Plaintiffs’ counsel’s averment that

“Mejia has completely ignored this action and has not taken any

steps to comply with the clear provisions of the PI Order.” (Id.;

cf. Case Docket, in toto.)

DISCUSSION

I. Applicable Law

A party or nonparty may be held in civil

contempt for failure to comply with a court

order if (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.

CF Fresh, LLC v. Carioto Produce, Inc., No. 20-CV-0884, 2022 WL

247743, at *4 (N.D.N.Y. Jan. 27, 2022) (quoting Fox v. Lee, No.

15-CV-0390, 2018 WL 1187404, at *3 (N.D.N.Y. Feb. 5, 2018); further

citation omitted). “A party who violates an injunction entered by

the district court faces the threat of both civil and criminal

contempt.” Paramedics Electromedicina Comercial, Ltda v. GE Med.

Sys. Info. Techs., Inc., 369 F.3d 645, 657 (2d Cir. 2004); see

also 18 U.S.C. § 401 (“A court of the United States shall have

power to punish by fine or imprisonment, at its discretion, such

contempt of its authority, and none others as . . . [d]isobedience

or resistance to its lawful writ, process, order, rule decree, or

command.”); Leser v. U.S. Bank Nat’l Ass’n, No. 09-CV-2362, 2011

WL 1004708, *6 (E.D.N.Y. Mar. 18, 2011) (“[C]ourts have inherent

power to enforce compliance with their lawful orders through civil

contempt.” (citations omitted)).

“The imposition of civil contempt sanctions may serve

dual purposes: to secure future compliance with court orders and

to compensate the party that has been wronged.” Paramedics

Electromedicina, 369 F.3d at 657 (citation omitted). “A district

court has ‘considerable discretion in determining whether a

coercive sanction is necessary and, if so, the form it will take.’”

Leser, 2011 WL 1004708, *14 (quoting Leadsinger v. Cole, No. 05-

CV-5606, 2006 WL 2266312, at *21 (S.D.N.Y. Aug. 4, 2006), and

collecting cases). Factors a court should consider when

determining whether civil contempt sanctions should be imposed

are: “(1) the character and magnitude of the harm threatened by

continued contempt, (2) the probable effectiveness of the proposed

sanction, and (3) the financial consequences of that sanction upon

the contemnor [(hereafter, the “Contempt Sanction Factors”)].” In

re Grand Jury Witness, 835 F.2d 437, 443 (2d Cir. 1987) (citing

United States v. United Mine Workers of Am., 330 U.S. 258, 304

(1947); further citation omitted)). “Arrest is an appropriate

sanction for civil contempt as long as the confinement is

conditioned upon compliance.” Leser, 2011 WL 1004708, at *14

(quoting Leadsinger, 2006 WL 2266312, at *21, and collecting

cases). However, “in selecting contempt sanctions, a court is

obligated to use the ‘least possible power adequate to the end

proposed.’” Id. at *11 (quoting Shillitani v. United States, 384

U.S. 364, 371 (1966); further citation omitted).

II. Application

The record in this action convincingly supports finding:

(1) Defendants had notice of the PI Order (see, e.g., Affs. of

Serv., ECF Nos. 17, 19; see also Brown Support Decl. ¶¶ 10-11,

18); (2) the PI Order is clear and unambiguous, especially as to

the Defendants’ obligations to, inter alia, “deliver any and all

PACA trust assets held on Defendants’ behalf, up to $209,252.50,

to counsel for Plaintiffs” (PI Order at 4), and turn over to

Plaintiffs’ counsel various documents regarding the assets of

Mejia Tropical (see id.; see also id. at 5.); (3) Defendants

clearly are in noncompliance with the PI Order having failed to

deliver to Plaintiffs’ counsel the subject PACA trust assets, with

counsel having been able to recover only $10,522.00 of the

$209,252.50 owed to Plaintiffs (see, e.g., Brown Support Decl.

¶ 13); and (4) the Defendants have not diligently attempted to

comply in a reasonable manner with the PI Order (see, e.g., id.

¶¶ 12-14).

More specifically as to Defendants’ lack of diligence in

compliance: To the extent Mejia has formed a new entity, i.e.,

Island Banana Corp., as a means of avoiding the consequences of

the PI Order (see, e.g., id. ¶¶ 16-18; see also Ex. D, ECF No. 21-

1 at ECF pp.14-17), that effort is unavailing. As Plaintiffs

astutely argue, “Island Banana Corp. is run by the same

principal[], out of the same location, and sells produce to the

same customers” and “appears to be a clear successor to Mejia

Tropical, [which] is thus subject to the PI Order, and is also

subject to Mejia Tropical’s PACA liability.” (Support Memo at 4

(citing S. Katzman Produce, Inc. v. JAT Bev. Inc., No. 17-CV-7930,

2018 WL 6437058, at *4 (S.D.N.Y. Dec. 7, 2018)).) Indeed, the

Court clearly states at several points in the PI Order that it

also applies to the Defendants’ successors. (See PI Order at 4

(unnumbered Decretal ¶¶ 2-3); id. at 5 (unnumbered Decretal ¶¶ 5-

6).) This, together with the Court’s findings delineated above,

warrants holding Defendants in civil contempt for willfully

failing to comply with their obligations under the PI Order.

Given the Defendants’ civil contempt, Plaintiffs request

the Court issue an order directing the U.S. Marshals Service hold

Mejia in custody pending Defendants purging of that contempt;

Plaintiffs further seek an award of their legal fees and expenses

incurred in bringing this Motion. (See Motion at 5.) Despite the

evidence that (i) Defendants know of the PI Order and are

deliberately violating it, (ii) Mejia Tropical’s successor, Island

Banana Corp., is also in noncompliance of the PI Order, to which

it is subject, and (iii) Defendants are on notice of this Motion,

including the relief sought by Plaintiffs (see Affs. Serv., ECF

Nos. 23, 24); and, notwithstanding (iv) this Court’s discretion to

fashion a coercive remedy, which may include detention, see, e.g.,

EEOC v. Local 28 of the Sheet Metal Workers Int’l Ass’n, 247 F.3d

333, 336 (2d Cir. 2001); N.Y. State Nat’l Org. for Women v. Terry,

886 F.2d 1339, 1353 (2d Cir. 1989), and (v) the likelihood that

(a) the subject trust assets have been dissipated, and (b) that

Defendants cannot or will not comply with a monetary sanction, the

Court will afford Defendants a final, short opportunity to come

into compliance with the PI Order and, thus, voluntarily purge

their contempt before imposing the draconian condition of

detention to coerce said compliance. However, DEFENDANTS ARE ON

NOTICE: Failure to turn over to Plaintiffs’ counsel within five

(5) business days from the date of service of this Memorandum &

Order either the balance of the trust assets or the requested

documents will result in the Court directing the U.S. Marshals

Service to hold Mejia in custody pending the perjuring of

Defendants’ contempt. This interim approach strikes a balance

between the Court’s consideration of the Contempt Sanction Factors

and the relief requested by Plaintiffs; by providing Defendants

with a final, short time within which to comply with the PI Order

before issuing an order for Mejia’s detention, this Order is

intended to impact Defendants using the “least possible power

adequate to the end proposed.”

CONCLUSION

Accordingly, IT IS HEREBY ORDERED:

A. Plaintiffs’ Motion (ECF No. 20) is GRANTED, with the Court

finding the Defendants are in contempt of the PI Order;

B. Defendant shall have five (5) business days from the date of

service of this Memorandum & Order to turn over to Plaintiffs’

counsel either (1) the balance of the trust assets or (2) the

requested documents as more fully detailed in the PI Order

(see PI Order at 4 (unnumbered Decretal ¶ 3), and at 5

(unnumbered Decretal ¶7));

C. If Defendants fail to timely turn over to Plaintiffs’ counsel

either the balance of the trust assets or the requested

documents, then upon the filing of an affidavit by Plaintiffs

that Defendants are also in noncompliance with this

Memorandum & Order, the Court WILL issue a further order

directing the U.S. Marshals Service to hold Mejia in custody

pending the purging of Defendants’ contempt;

D. Plaintiffs shall have until July 29, 2022 to move for an award

of their legal fees and expenses incurred in bringing this

Motion; and

E. Plaintiffs are to serve Defendants with a copy of this Order,

either personally or by an express, overnight delivery

service (e.g., Federal Express) by no later than 6:00 p.m.

(E.S.T.) on Friday, June 24, 2022 and file proof of said

service forthwith.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: June 22, 2022

Central Islip, New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.