Opinion
97 Civ 03817.
July 20, 2007
AMENDED DECISION AND ORDER
By Decision and Order dated July 18, 2007 (the "Decision") the Court, adopting the recommendations of a report by Magistrate Judge Katz, granted the request of plaintiff Edwin B. Mishkin, as Trustee for the Liquidation of the Business of Adler, Coleman Clearing Corp. (The "Trustee") for an Order directing defendant Philip Gurian ("Gurian") to transfer to the Trustee, in satisfaction of a judgment in the underlying case, any interest he has in any deliverable assets he owns or controls. In a letter to the Court dated July 19, 2007, a copy of which is incorporated hereto and made part of the record, the Trustee seeks clarification of two points in the Decision's discussion of the Court's reasoning and conclusion. Gurian has responded by letter dated July 19, 2007, which is also incorporated herein.
First, the Trustee points to a sentence on page 8 of the Decision which states that "The Court finds nothing clearly erroneous in the factual details in the Report that warrant rejection of the Report's recommendation or remand for additional review." The Trustee expresses concern that this mention of the term "clearly erroneous" might be construed to refer to the standard applicable to Court's review of a Magistrate Judge's report to which no timely objection has been made, rather than the de novo review that governs where timely objections are filed. Gurian finds no ambiguity in the Decision on this point but, to avoid potential for confusion, does not object to the clarification the Trustee seeks.
The Decision explicitly acknowledges that the de novo standard applies where timely objections are submitted. (See Decision at 2.) The Court then expressly indicated that because it had decided not consider the Trustee's argument that Gurian's objections were untimely, it had conducted a de novo review of the record before Magistrate Judge Katz. On that basis the Court stated that it found no merit in any of Gurian's objections, see Decision at 3, and that the Trustee had established sufficient grounds for the relief requested, see Decision at 7-8. More specifically confirming its separate review, the Court stated that "It finds, as did Magistrate Judge Katz," that Gurian has "failed to refute the substantial documentation produced by the Trustee establishing Gurian's financial interest in the Turnover Assets." Id. at 8.
The Court's use of the phrase "clearly erroneous" was not intended as a reference to the applicable standard of review. Rather, the phrase was meant merely as an expression of the Court's view, in addressing Gurian's request for a remand to the Magistrate Judge for further review of certain details he contended Magistrate Judge Katz had either inaccurately stated or misunderstood, that in fact there were no such errors or uncertainty warranting a rejection of the recommendation to grant the turnover order as recommended by Magistrate Judge Katz, and a remand on that ground alone. In other words, on its de novo examination of the record, the Court read the evidence on the specific points in question precisely the way Magistrate Judge Katz had described the facts, and on that separate review the Court had reached the same understanding of the matters raised by Gurian's objections.
Second, the Trustee noting the unquantifiable temporal reference associated with the term "forthwith" in the Order directing Gurian to turn over deliverable assets, proposes that the Court provide a specific deadline, particularly in light of the well-documented longstanding record of Gurian's dilatory practices in this case. By using the term "forthwith" in this context it is the Court's intent that the Order commands Gurian to turn over to the Trustee immediately any assets he owns on controls that are now deliverable, and that any other assets not immediately deliverable for any legitimate reasons would be turned over promptly upon the resolution of any valid ground impeding immediate delivery. To the extent that the term "forthwith" leaves any room for uncertainty as to the deadline for compliance, it is the Court's view that any time more than ten business days after the date of the Decision would not comply with the intent of the Order, and would entitle the Trustee to seek additional relief, including, as appropriate, contempt of court proceedings.
The Court has considered Gurian's objection that the date proposed by the Trustee is unreasonable, in part because Mr. Gurian is currently outside the United States until early August and that a compliance date of August 17, 2007 would be more appropriate. The Court leaves it to the parties to stipulate to a compliance date later than that stated by the Court, subject to a satisfactory sworn undertaking by Gurian that he shall take no action to alter in any way the legal or physical status of his interest in any assets within the scope of the turnover Order. If the parties cannot come to such an agreement, the compliance date stated by the Court will remain in effect. Accordingly, it is hereby
ORDERED that the Court's Decision and Order dated July 18, 2007 is amended to incorporate the clarifications set forth above as part of this Order.