Opinion
Case No. 10-58583 Adv. Pro. No. 10-2508
08-04-2015
In re: GEORGE A. BAVELIS, Debtor. George A. Bavelis, Plaintiff, v. Ted Doukas, et al., Defendants.
Copies to: Ted Doukas, 70 Split Rock Road, Syosset, NY 11791 Ted Doukas, 4713 Villa Mare Lane, Naples, Florida, 34103-3473 Ted Doukas, 19202 Cloister Lake Lane, Boca Raton, FL 33498-4856 Franklin Connor Davis, Counsel for Ted Doukas (electronically) Attorneys for Plaintiff Attorneys for Defendants
Chapter 11
OPINION AND ORDER DENYING MOTIONS OF GEORGE A. BAVELIS RELATING TO IMMEDIATE REGISTRATION OF THE COURT'S JUDGMENT
On July 31, 2015, the Court entered its Memorandum Opinion and Order Awarding George A. Bavelis Attorneys' Fees and Expenses Incurred as a Result of Ted Doukas's Civil Contempt (Adv. Doc. 624) and its Judgment Entry Holding Ted Doukas in Civil Contempt and Awarding George A. Bavelis Attorneys' Fees and Expenses Incurred as a Result of the Contempt ("Judgment") (Adv. Doc. 625).
On August 3, 2015, George A. Bavelis ("Bavelis") filed his Emergency Motion for an Order Permitting Plaintiff to Immediately Register the Court's July 31, 2015 Judgment with the U.S. District Court for the Eastern District of Tennessee ("Registration Motion") (Adv. Doc. 628) and his Motion for Immediate Consideration and Disposition of His Emergency Motion for an Order Permitting Plaintiff to Immediately Register the Court's July 31, 2015 Judgment with the U.S. District Court for the Eastern District of Tennessee ("Immediate Disposition Motion") (Adv. Doc. 629). In the Registration Motion, Bavelis argues that "[g]ood cause exists here for the issuance of an order authorizing Mr. Bavelis to immediately register the . . . Judgment with the U.S. District Court for the Eastern District of Tennessee." Registration Mot. at 2. In the Immediate Disposition Motion, he requests that the Court immediately consider and dispose of the Registration Motion without providing Ted Doukas ("Doukas")—the party against whom the Judgment was entered—an opportunity to respond to the Registration Motion. For the reasons explained below, the Court denies both motions.
In seeking registration of the Judgment in the Eastern District of Tennessee, Bavelis relies on 28 U.S.C. § 1963, which states:
A judgment in an action for the recovery of money or property entered in any court of appeals, district court, bankruptcy court, or in the Court of International Trade may be registered by filing a certified copy of the judgment in any other district or, with respect to the Court of International Trade, in any judicial district, when the judgment has become final by appeal or expiration of the time for appeal or when ordered by the court that entered the judgment for good cause shown. Such a judgment entered in favor of the United States may be so registered any time after judgment is entered. A judgment so registered shall have the same effect as a judgment of
the district court of the district where registered and may be enforced in like manner.28 U.S.C. § 1963 (emphasis added).
A certified copy of the satisfaction of any judgment in whole or in part may be registered in like manner in any district in which the judgment is a lien. The procedure prescribed under this section is in addition to other procedures provided by law for the enforcement of judgments.
"Although the statute does not define good cause, [c]ourts have interpreted [it to require] a mere showing that the defendant has substantial property in the other [foreign] district and insufficient [property] in the rendering district to satisfy the judgment." Celtic Marine Corp. v. James C. Justice Cos., Inc., No. 11-3005, 2014 WL 4635539, at *1 (E.D. La. Sept. 15, 2014) (internal quotation marks omitted). See also Columbia Pictures Television, Inc. v. Krypton Broad., 259 F.3d 1186, 1197-98 (9th Cir. 2001) ("[T]he courts that have found good cause have generally based their decisions on an absence of assets in the judgment forum, coupled with the presence of substantial assets in the registration forum."). Accordingly, a party seeking registration of a judgment under § 1963 must not only allege the existence of assets outside the district where the judgment was issued, he also must allege that the judgment debtor has insufficient property located in the district where the judgment was issued. Of course, the movant also must give the judgment debtor an opportunity to object to the motion, and the court must address any objections before making the findings required to determine that good cause exists. See Plaza Bank v. Alan Green Family Trust, No. 2:11-cv-00130, 2013 WL 3716446, at *2 (D. Nev. July 15, 2013) ("The Court does not find that Plaintiff has demonstrated good cause. Although there is no apparent dispute that Defendants lack sufficient assets in this District, Defendants argue that they no longer hold any assets in Arizona. Consequently, Plaintiff's belief that Defendant might have assets in Arizona, 'either now, or at some point in the future,' is not a sufficient showing of good cause.").
In United States v. D'Elegance Management, Ltd., No. 98-2758, 2000 WL 966034, at *8 (4th Cir. July 13, 2000), the district court granted a motion to register the judgment under § 1963, but did so only after: (1) the movant stated in the motion to register the judgment that an asset search indicated that the judgment debtor owned assets in the district where the movant sought to register the judgment and that the movant had been unable to locate any assets owned by the judgment debtor in the district where the judgment was issued; and (2) the judgment debtor did not dispute those allegations. See also Chicago Downs Ass'n, Inc. v. Chase, 944 F.2d 366, 372 (7th Cir. 1991) ("In the present case, Chicago Downs' motion to register the judgment in other districts during the pendency of appeal noted that Chase owns no property in the district in which the deciding district court sits, that Chase does own substantial property in other districts, that Chicago Downs fears that Chase can and may transfer or conceal such property otherwise necessary to satisfy the judgment if given time to do so, that registering judgment will forestall his ability to do so, and that Chase declined the possible alternative of posting a supersedeas bond. The district court found in the absence of a bond that the conditions set forth in Chicago Downs' motion constituted 'good cause' for registration of the judgment in other districts under § 1963. This was not an abuse of discretion."); Global Traffic Techs., LLC v. Morgan, No. 10-4110, 2014 WL 5089850, at *3 (D. Minn. Oct. 9, 2014) (judgment debtors admitted that they had insufficient assets in district where judgment was issued to satisfy judgment); Ambac Assurance Corp. v. Adelanto Public Util. Auth., No. 09- 5087, 2014 WL 2893306, at *4 (S.D.N.Y. June 26, 2014) ("A judgment creditor need not provide exact evidence of the debtor's assets, and good cause may be supported by a 'lesser showing.' See Lankler Siffert & Wohl, LLP v. Rossi, No. 02 Civ. 10055, 2004 WL 1627167, at *2 (S.D.N.Y. July 21, 2004) (unrebutted asset searches sufficient) . . . ."); AT&T Corp. v. Public Serv. Enters. of Pa., Inc., No. 98CIV6133LAP, 1999 WL 672543, at *6 (S.D.N.Y. Aug. 26, 1999) ("AT&T claims that PSE does not have sufficient assets in the State of New York to pay the amount of the judgment sought and, to the extent PSE has assets that they are located in the Commonwealth of Pennsylvania and/or other jurisdictions. (Nissen Aff. ¶ 30). . . .[I]n the absence of any objections or contrary evidence by PSE, I accept as true the sworn affidavit of AT & T's attorney William J. Nissen and grant AT & T's request.").
Bavelis failed to allege in the Registration Motion that Doukas has insufficient property in this District to satisfy the Judgment. In fact, Bavelis's counsel did not cite any case law in the Registration Motion or even acknowledge the standards discussed above that courts apply when considering motions for registration of judgments under 28 U.S.C. § 1963. That is troubling in and of itself. See United States v. Agrell, 965 F.2d 222, 227 n.10 (7th Cir. 1992) (taking counsel to task for "fail[ing] to acknowledge the applicable case law . . . and . . . fail[ing] to cite any case law in support of his position"). Further, in the Immediate Disposition Motion, Bavelis requests that the Court enter an order granting the Registration Motion immediately without providing Doukas an opportunity to respond to it. That request is inconsistent with Rule 9073-1(a)(5) of the Local Rules of Bankruptcy Procedure ("LBRs"), under which a party seeking relief must include "the proposed shortened notice or response period being sought and any proposed date or dates and time for any expedited hearing being sought." LBR 9073-1(a)(5).
Any further motion that Bavelis files for expedited disposition of a motion for registration of the Judgment should, consistent with LBR 9073-1(a)(5), include the proposed shortened notice or response period being sought and any proposed date or dates and time for any expedited hearing being sought. In addition, "[t]he motion for expedited hearing or disposition shall be accompanied by a proposed form of notice and a proposed order which, if signed, will set an expedited hearing date and/or shortened response time on the underlying filing." Id. The Court would not be inclined to grant a request shortening the response deadline to less than seven days after the refiling of any further motion.
As other courts have noted when admonishing attorneys for failing to abide by applicable rules, "[i]t is not too much to expect counsel to comply with straightforward procedures" that "are not arbitrary [but that] are [in place] for a reason: to improve the quality of justice for all litigants." Howard v. Value City Furniture, No. 12-02923, 2014 WL 1227559, at *2 (N.D. Ill. Mar. 25, 2014). Indeed, granting the Registration Motion without affording Doukas an opportunity to respond to it would not comport with the dictates of due process, especially in light of the fact that "registration under § 1963 is the equivalent of a new judgment[.]" Condaire, Inc. v. Allied Piping, Inc., 286 F.3d 353, 357 (6th Cir. 2002).
Under the circumstances, the Court cannot make the findings required to conclude that good cause exists to grant the Registration Motion. In light of the foregoing, the Registration Motion and the Immediate Disposition Motion are DENIED without prejudice.
IT IS SO ORDERED.
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
/s/_________
John E. Hoffman, Jr.
United States Bankruptcy Judge
Dated: August 4, 2015
Copies to: Ted Doukas, 70 Split Rock Road, Syosset, NY 11791
Ted Doukas, 4713 Villa Mare Lane, Naples, Florida, 34103-3473
Ted Doukas, 19202 Cloister Lake Lane, Boca Raton, FL 33498-4856
Franklin Connor Davis, Counsel for Ted Doukas (electronically)
Attorneys for Plaintiff
Attorneys for Defendants