PNC Bank, N.A. v. Colmenares Brothers, LLC

• Court: District Court, S.D. Florida
• Decided: October 13, 2023
• Docket: 1:21-cv-24229
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 21-24229-CIV-SMITH

PNC BANK, N.A.,

Plaintiff, vs.

COLMENARES BROTHERS, LLC, et al.,

Defendants. /

ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE

This matter is before the Court upon the Magistrate Judge’s Report and Recommendation [DE 63] on Plaintiff PNC Bank, N.A.’s (“Plaintiff”) Motion for Entry of Order to Show Cause [DE 39]. In the Report and Recommendation, the Magistrate Judge recommends that Defendants, Colmenares Brothers, LLC, and Jose Colmenares (collectively “Defendants”), be found in civil contempt for violating several Court Orders and for failing to appear at a Show Cause Hearing. On November 15, 2022, the Court entered Final Default Judgment for Plaintiff and against Defendants, jointly and severally, in the amount of $114,337.87. The Court ordered Defendants to complete under oath Florida Rule of Civil Procedure Form 1.977 Fact Information Sheets and serve them on Plaintiff within forty-five (45) days from the date of the Final Judgment. (See DE 33.) Defendants failed to comply with the Court’s Order, causing Plaintiff to file its Motion to Compel Debtors to Complete Fact Information Sheet (“Motion to Compel”) [DE 34]. When Defendants failed to respond to the Motion to Compel, the Magistrate Judge issued an Order to Show Cause [DE 37]. In the Order, the Magistrate Judge warned Defendants that their failure to comply could result in sanctions and a finding of contempt. Defendants failed to comply with the Order to Show Cause. For that reason, the Magistrate Judge granted Plaintiff’s Motion to Compel by default and once again ordered each Defendant to complete the Form 1.977 Fact Information Sheets. When Defendants once again failed to comply with the Magistrate Judge’s directive, Plaintiff filed its Motion for Entry of Order to Show Cause,

based on Defendants’ violation of multiple Court Orders. The Magistrate Judge issued another Order to Show Cause [DE 40] why the Magistrate Judge should not find each Defendant in civil contempt for failure to comply with the multiple orders Defendants violated. This time, the Magistrate Judge ordered Defendants to appear for a hearing on July 10, 2023, to respond to the Order [DE 40]. On June 27, 2023, Plaintiff filed Notice of Filing Proof of Delivery of the Court’s Show Cause Order to Defendants by FedEx delivery [DE 41]. Attached to the Notice was the FedEx delivery receipt showing that someone signed for the Show Cause Order at Defendants’ address in Sunny Isles Beach, Florida. Notwithstanding this, on July 10, 2023, Defendants failed to appear for the Show Cause hearing. At the hearing, Plaintiff’s counsel advised the Magistrate Judge that

efforts to contact Defendants failed. Defendants’ repeated violations of the Magistrate Judge’s Orders and failure to attend the Show Cause Hearing, of which Defendants were duly notified, support the Magistrate Judge’s finding that Defendants are in civil contempt of Court. “Courts have the inherent power to enforce compliance with their orders through civil contempt.” U.S. Commodity Futures Trading Comm’n v. Escobio, 946 F.3d 1242, 1255 (11th Cir. 2020) (citing Shillitani v. United States, 384 U.S. 364, 370 (1966)). A party’s repeated violations of a court’s valid orders subjects that party to a finding of civil contempt. See Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1302 (11th Cir. 1991). The party seeking civil contempt must show by clear and convincing evidence that the contemnor failed to comply with the court’s prior order. Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998). The burden then shifts to the alleged contemnor to produce detailed evidence explaining why after making reasonable efforts it cannot, in good faith, comply. United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988); Chairs, 143 F.3d at 1436.

The Magistrate Judge found that Plaintiff showed by clear and convincing evidence that Defendants violated the Court’s Orders and had not made “all reasonable efforts” to comply with the Court’s Orders requiring each Defendant to submit completed Fact Information Sheets to Plaintiff and failed to appear before the Magistrate Judge on July 10, 2023. Under these circumstances, the Magistrate Judge found that Defendants should be held in contempt and have fines, fees, and costs assessed against them. The Court agrees. Based on the foregoing the Court finds Defendants, Colmenares Brothers, LLC, and Jose A. Colmenares, in civil contempt for their failure to comply with the Court’s Orders requiring them to submit completed Form 1.977 Fact Information Sheets [DE 33, 38] and for their failure to appear before the Court for the Show Cause Hearing on July 10, 2023.

Pursuant to the Local Rules for the Unite d States District Court, Southern District of Florida, the Magistrate Judge ordered that the parties had “fourteen (14) days from the date of receipt of this Report and Recommendation within which to serve and file written objections.” Neither party has filed Objections to the Magistrate Judge’s Report and Recommendation. Having reviewed, de novo, the Magistrate Judge’s Report and Recommendation to District Judge and the record, and given that no Objections have been filed, it is ORDERED that 1. The Report and Recommendation to District Judge [DE 46] is AFFIRMED and ADOPTED and incorporated by reference into this Court’s Order. 2. Plaintiff's Motion for Order to Show Cause [DE 39] is GRANTED. 3. Defendants are in civil contempt for their failure to comply with the Court’s Orders requiring them to submit completed Form 1.977 Fact Information Sheets [DE 33, 38] and to appear before the Court for a show cause hearing [DE 40] 4. Defendants, jointly and severally, shall pay a fine of $300.00 per day until they have purged themselves of the contempt. This sanction shall be assessed retroactively from July 17, 2023, until the date when Defendants purge themselves of the contempt. 5. Plaintiff is entitled to its reasonable attorneys’ fees and costs. Plaintiffs Application for Attomeys’ Fees and Costs Per Magistrate’s July 17, 2023 Report and Recommendation Following Show Cause Hearing [DE 47] is referred to the Magistrate Judge for a report and recommendation. DONE and ORDERED in Fort Lauderdale, Florida, this 13th day of October 2023.

RODNEY SMITH UNITED STATES DISTRICT JUDGE

ce: Counsel of record