Jawful writ, process, order, rule, decree, or command.” When criminal contempt is not committed
in the presence of the court, Fed. R. Crim. P. 42(a) requires notice prior lo prosecution. The notice
“must state the time and place of the trial; (b) allow the defendant a reasonable time to prepare a
defense; and (c) state the essential facts constituting the charged criminal contempt and describe it
as such.” Fed. R. Crim. P. 42(a). If the defendant is not present in court, noticc is given by an order
to show cause or an order of arrest. Jd. A conviction for criminal contempt requires a showing that
the violation was willful. Betts, 927 F.2d at 986. A standard of reasonable doubt is applied and a
jury trial is permitted for some forms of criminal contempt. Grove Fresh, 888 F. Supp at 1436.
Civil contempt is authorized by 28 U.S.C. § 1826(a). Generally “[a] district court has broad
discretion to fashion an appropriate coercive remedy in a case of civil contempt, based on the nature
of the harm and the probable effect of alternative sanctions. Tis determinations will not be disturbed
absent a clear showing of abuse of discretion or if clearly erroneous.” Cannon v. Loyola University
of Chicago, 676 F. Supp 823, 828 (N.D. 1. 1987)(internal citations omitted). The remedy may
include imprisonment, 28 U.S.C. § 1826(a) states that “[w]henever a witness in any procceding
before or ancillary to any court... refuses without just cause shown to comply with an order of the
court to testify... the court. .. may summarily order his confinement at a suitable place until such
time as the witness is willing to give such testimony ....” The period of the confinement is limited
to the lesser of eightecn months, or the life of the court proceeding, Jd. A court also may impose
fines as a civil contempt sanction as long as those fines are intended to compe] compliance with the
court’s orders rather than punish disobedience. £.g. International Union, United Mine Workers of
America y, Bagwell, 512 U.S. 821, 823 (1994). The court may also impose remedial sanctions to

compensate a party for losses sustained due to the contemptor’s disobedience, United States v.

13



plaintiff moved to hold Maria (sic) Stallone, Marlene Stallone and Laura Stallone in contempt of
court for failure to appear al the citation proceedings. [Dkt #50.] As further discussed below, after
the defendants failed to appear notwithstanding repeated orders for their appearance, the District
Judge entered a finding of civil contempt against the corporate defendant for failure to comply with
court orders. No ruling was entered regarding the individuals, apparently because Marlene and
Maria Stallone had filed bankruptcy petitions. (P1.’s Mot. to Hold Marlene Stallone and Maria (sic)
Stallone in Contcmpt at 2.) Both bankruptcy petitions have since been dismissed. (/d., Exs. A, B.)

A further citation was issued to Marlene Stallonc on September 10, 2002, to appear for a
citation proceeding on October 1, 2002. The citation was also issued to Bernice Ventresca as trustee
for the Shur Trust, based on the allegation that the trust had received property without consideration
from Marlene Stallone. (P1.’s Mot. to Hold Bernice Ventresca in Contempt, {J 5-7, and attached
Citation in Supp. Proceedings to Discover Assets at 2.) On October 4, 2002, the plaintiff again
moved to have Marie and Marlene Stallone held in contempt for failure to appear for the citation.
[Dkt# 63.] In addition, the plaintiff moved to hold Bernice Ventresca in contempt and for atumovet
order against her. [Dkt # 64.] The casc was referred to the Magistrate Judge for resolution of these
motions. [Dkt # 66.] None of the respondents appcarcd at the Magistrate Judge’s initial status on
the plaintiff's motions. [Dkt # 69.] Plaintiff's counsel informed the Magistrate Judge that Marlene
Stallone had filed a Chapter 13 bankruptcy petition and this court accordingly stayed the motion
directed to her personally. The other respondents (Marie Stallone, Bernice Ventresca and Marlene

Stallone with respect to the citation to discover assets against A. Stallone Inc.) were ordered to file

responses by November 15, 2002. [Dkt # 69.] No responses were received or filed.



the motion be granted as to Marie Stallone, that she be found in civil contempt, and that a bench
warrant be issued for the arrest of Maria Stallone to compel her appearance before the Court and her
compliance with previous court orders and with citations to discover assets issued by the Clerk of
the Court as to her personally and as the representative of the corporate defendant A, Stallone, Inc.;
and (b) that the motion be stayed as to Marlene Stallone without prejudice during the pendency of
her bankruptcy case, so that if that case is dismissed, the plaintiff can renew the motion, This court
further respectfully recommends that the plaintiff's motion to hold Bernice Ventresca in contempt
be denied, and that the citation against Bernice Ventresca be dismissed, without prejudice to the
plaintiff's serving a citation upon Beatrice Ventresca.

Specific written objections to this report and recommendation may be served and filed within
10 business days from the date that this order is served. Fed. R. Civ. P. 72(a). Failure to file
objections with the District Court within the spcecificd time will result in a waiver of the right to
appeal all findings, factual and legal, made by this Court in the report and recommendation.

Lorentzen vy. Anderson Pest Control, 64 F.3d 327, 330 (7" Cir. 1995).

GERALDINE SOAT BROWN
United States Magistrate Judge

Dated: December 23, 2002

17



citations for supplemental proceedings and to discover assets as to Marlene and Marie Stallone and
as to Bernice Ventresca. These are the subject of the present motion.

With respect to Bernice Ventresca, the plaintiff's motion attaches copies of quitclaim deeds
apparently executed by Marlene Stallone in October, 2001, conveying real estate to the ABLE 2001
Trust, and a conveyance in November, 2001, of that real estate by Marlene Stallone as trustee of the
ABLE 2001 Trust to Beatrice Ventresca as the trustee of the Shur Trust. (See Exhibits to Mot. Hold
Bemice Ventresca in Contempt.) It also includes a Declaration of Trust, showing that the ABLE
2001 Trust was created by Marlene Stallone in October, 2001, and a Declaration of Trust dated
November, 3, 2001, for the Shur Trust for which Beatrice Ventresca is the trustee. The Shur
Declaration of Trust states that Beatrice Ventresca is the sister of Marlenc Stallone and the aunt of
Marie Stallone. (/d.) However, there is no mention in the trust documents of Bernice Ventresca,
the person to whom the citation was issued. The citation was served by certified mail addressed to
“Bemice Ventresca.” The receipt was signed by “B. Ventresca” as “addressee or agent.” (Mot. Hold
Bernice Ventresca in Contempt, Ex, A.) It is possible that the plaintiff simply mistakenly used
“Bernice” instead of “Beatrice.” However, the factual premise of the plaintiff's motion — that
Bemice Ventresca is the trustee of the Shur Trust (Mot. Hold Bernice Ventresca in Contempt { 6)
—appcars unsupported by the record. Because Beatrice Ventresca has not been named in a citation
or served, she cannot properly be held in contempt of court for failure to respond.

Based on the foregoing facts which appear in the record of this case, this Court finds as
follows:

A. The corporate defendant A. Stallone, Inc. has violated both the District Judge’s order

of February 12, 2002 to appear on March 8, 2002 for citation proceedings, and the District Judge’s



Stallones] have stopped communicating with me for two weeks . .. my faxes aren’t being received.
My phone calls aren’t being returned. My messages aren’t being responded to.” (Tr. May 15, 2001
at 4.) He told the District Judge that he had advised his clients that they were to be present in court,
but he could not communicate with them. (/d. at 5.) As a result, the District Judge ordered that the
individual defendants appear personally on May 24, 2001 in court, with the corporate defendant to
appear through its president, and that the failure to appear could result in a default judgment. (/d.
at 7; Order, May 15, 2001.)[Dkt # 16.] When the defendants failed to appear at that hearing, their
counsel told the District Judge, “T need a client that... understands when a court makes an order it
means what it says.” (Tr. May 24, 2001 at 4.) That counsel was given leave to withdraw. (/d. at 7-
8.) Again the District Judge ordered the individual defendants to appear, and suggested that a body
attachment might issuc if they continued to disregard court orders. (Jd. at 8-9.) The District Judge
stated, “I’m going to order again those individual defendants to be here or they will be held in
contempt. The way that you get recalcitrant individuals to cooperate is to basically have them
arrested, and I don’t want to have to do that, but that is what I may have to do... .” (dd. at 8.)
Marie, Marlene and Laura Stallone appeared at the subsequent hearing on May 30, 2001, with a
number of excuses as to why they had not appeared on May 24, 2001, and the District Judge
exonerated them from the rule to show cause. (Tr. May 30, 2001 at 9.) A second counsel was given
leave to file his appearance. (/d. at 11.) The defendants were given until June 6, 2001 to comply
with outstanding discovery in the Mandolini case, with payment of sanctions ordered if there was
non-compliance. (/d, at 23; Order, May 30, 2001.)[Dkt1 # 17.]

The attorney who replaced the first counsel also had difficulty with the Stallones. When the

Stallones failed to attend the hearing on his motion to withdraw he stated, “These ladies arc cvading



c. Previous Efforts to Obtain Compliance by the Defendants

In the decision granting summary judgment, the District Judge observed that on July 12,
2001, the court had entered a preliminary injunction ordering the defendants to pay the amount of
$20,517.40, of which $20,165.90 was still outstanding. (Order, October 9, 2001.)[Dkt #39.] The
District Judge stated, “Additionally, there is evidence in the record which establishes that defendants
have knowingly attempted to evade, disregard and circumvent this court’s orders of July 12, 2001
we. (ld)

Previously, in August, 2001, the plaintiff had filed two motions to hold the Stallones in
contempt of court. [Dkt ## 28, 31.] The first motion alleged that the Stallones were attempting to
evade a court order requiring that funds belonging to A. Stallone, Inc. in the hands of third partics
be paid to the plaintiff. (P1.’s Mot. to Hold Defs. in Contempt at { 2, 10.)[Dkt # 28.] The Stallones
had allegedly formed anew company, Produce Quest, Inc., and directed parties that owed A. Stallone
Inc. money (o make payments to Produce Quest. /d. at { 5-10. The second motion for contempt
alleged that Marlene Stallone had told a company that owed moncy to A. Stallone, Inc. to disobey
the court order regarding payment to the plaintiff. (PI.’s Additional Motion to [old Defs. in
Contempt at 5.) [Dkt #31.] The decision granting summary judgment did not rule on cither of the
contempt motions. (Order, Oct. 9, 2001.)[Dkt # 39.]

As the following history demonstrates, time after lime, the Stallones failed to comply with
orders. On various occasions they obtained new counsel, and the District Judge gave them another
chance. However, after a succession of attormeys have appeared and withdrawn, the defendants have

ho right to expect any further accommodation by the court.

In moving to withdraw from the case, the Stallones’ first attorney complained that “they [the



the District Judge ordered that they appear personally, and that a corporate representative appear for
citation proceedings on March 8, 2002. (Order, February 12, 2002.) (Dkt #58.] The rule to show
cause why Marlene and Laura Stallone should not be held in contempt was continued to March 12,
2002. (/d.) Defendants’ fourth attomey moved to withdraw. [Dkt # 59.] On March 12, 2002, that
counsel’s motion to withdraw was denied. The defendant corporation, A. Stallone, Inc., was found
to be in contempt of court. Marie Stallone was ordered to appear as the corporate representative at
a deposition, with a fine of $100 per day until the corporation’s contempt is purged. No ruling was
made as to Laura and Marlene Stallone.? [Dkt # 62.]

It appears that none of the citation proceedings ordered by the court ever took place. Maric
Stallone filed for bankruptcy protection on February 12, 2002; that proceeding was dismissed on
May 17, 2002. (02B5423, N. D. Ill. Bankr.) Marlene Stallone filed for bankruptcy protection on
March 7, 2002; that proceeding was dismissed on May 17, 2002. (Case No. 02B8999, N. D. Ill.
Bankr.) Laura Stallone also filed for bankruptcy protection on March 7, 2002; that proceeding is still

pending. (Case No. 02B08994, N. D. Ill. Bankr.) On September 10, 2002, the plaintiff served the

3Similar difficulties were encountered in the Mandolini Co. case. On one occasion the
District Judge held the individual defendants in criminal contempt and warmed them that “. . any
violation of any subsequent order . .. entered by the magistrate judge or me, in connection with this
case will cause each of the defendants to be subject to further sanctions, including fines and jail.”
(Tr. Nov. 26, 2001 at 183.)[Dkt # 67](00-C-7016). The District Judge also granted several other
motions and issued orders, some of which also affected the related cases, that demonstrated the
Stallones’ repeated failure to comply with basic requirements. These motions and orders included
a motion for court assistance to effect service [dkt ## 10-2](00-C-7016), a motion to compel
appcarance at a settlement conference [dkt # 32](00-C-7016), [dkt # 8](00-C-8019), an order to
comply with outstanding discovery under threat of sanctions (dkt # 45](00-C-7016), and an order
to show cause why the Stallones should not be held in contempt for failure to appear. [Dkt #
65](00-C-7016), [dkt # 16](00-C-8019). In September, 2002 Judge Denlow issued an order
authorizing the Sheriff to use “all necessary force” to seize the personal property trom Marie and
Marlene Stallone. [Dkt # 94](00-C-7016).



Powe Order Fornse(O6r7)

United States District Court, Northern District of Tllinois

Name of Assigned Judge
or Magistrate Judge

James F, Holderman

Sitting Judge if Other
than Assigned Judge

Geraldine Soat Brown

CASE NUMBER 00 C8019 DATE 12/23/2002
CASE Anthony Marano Co. vs. A. Stallone Inc., et al.
TITLE
[in the folluwing box (a) indicate the party fifing the motion, ¢.g., plaintit, defendant, 3rd party plaintiff, and (b) state briefly the natuce
MOTION: of the motion being presented. |

DOCKET ENTRY:

a) im] Filed motion of ( use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) oO Answer brief to motion duc ___.- Reply to answer brief due.

(a) im Ruling/Hearing on __ Set for_ at

(5) oO Status hearing(held/continued to] [sct for/re-set for] on __—sset for___att

(6) Qa Pretrial conference{held/continucd to] [set for/re-set for]on set for at

(7) Qo Trial{set for/re-set for] on __ at.

(8) oO [Bench/Jury trial] [Hearing] held/continued to alt

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CIFRCP4(in) CLocal Rule 41.1 Oo rRCPa(ay(L) OO FRCP41(a)(2).

| [Other docket entry] Report and Recommendation to Hon. James Holderman recommending that

plaintiff's motion to hold Marlene Stallone and Maria Stallone in contempt of court [63-1] be GRANTED
IN PART AND STAYED IN PART, and that plaintiff's motion to hold Bernice Ventresca in contempt
of court and for a turnover order for certain property [64-1] be DENIED WITHOUT PREJUDICE is
submitted herewith. Specific written objections to this report and recommendation may be served and
filed within 10 business days from the date that this order is served. Fed. R. Civ. P. 72(a). Failure to file
objections with the District Court within the specified time will result in a waiver of the right to appeal
all findings, factual and Icgal, made by this Court in the report and recommendation. Lorentzen ».
Anderson Pest Control, 64 F.3d 327, 330 (7" Cir. 1995). A,

(al) {For further detail see order attached to the original minute order.]

No notices required, advised in open court Document

No notices required, ‘ber ott Number
| Notices mailed by judge's stall. pec 2 4 2002

Notified counsel by telephowe Lygod ineisi'sia dave duekesl

Ducketing to mail notices ,

Mail AO 450 form, tdesShg Hoey nse

soma Lobe Se ouge9

Y | Copy to jndgermagistrate judee. GF VG Oo

add

courtroom,
depuly’s
initials

MW

Date/time received in
central Clerk's Office

mailing deputy initials



establishes a procedure under which a judgment creditor is entitled to a supplemental proceeding to
discover assets of the debtor and compel their payment towards the satisfaction of the judgment. 735
Ml. Comp. Stat. § 5/2-1402 (2002). This legislation is to be liberally construed, Zantop
International Airlines, Inc. v. Joyce Expediting Service Inc., No. 89 C 6279, 1991 WL 147376 at *|
(N.D. Ill. 1991)(Bucklo, M.J.). The supplemental proceeding is commenced by the issuing of a
citation by the court, 735 Il. Comp. Stat. § 5/2-1402. The citation orders the judgment debtor to
appear and be deposed by the creditor regarding the debtor’s assets. (See, ¢.g-, Citation in Supp.
Proceedings to Discover Assets at 2, attached to Pl.’s Mot. to hold Bernice Ventresca in Contempt.)
‘The court is then empowered to order that non-exempt assets discovered in this proceeding be turned
over to the judgment debtor. 735 Ill. Comp. Stat. § 5/2-1402. The precise procedure “is left largely
to the judge’s discretion, and the proceedings are meant to be swift, cheap and informal.”
Michaelson v. Schor, No. 95 C 6573, 1997 WL 282929 at *3 (N.D. Ill. 1997)(Holderman, J,).
Complications are created when a judgment debtor fraudulently transfers assets in an attempt
to avoid payment. Fraudulent transfers may be sct aside. Zantop, 1991 WL 147376 at *1. However
the third party claimant to whom the transfer was made has a right to a hearing prior to the entry of
afinal tumover order. Under § 5/2-1402(g), “if it appears that any property . . . is claimed by any
person, . . . the court shall, as in garnishment proceedings, permit or require the claimant to appear
and maintain his or her right.” Moreover, § 5/2-1402(g) provides that the tights of adverse claimant
are to be determined pursuant to (he law of garnishment proceedings. /d. Under 735 Ill. Comp.
Stat. § 5/12-711, garnishees are granted the right toa hearing to contest the garnishment. However
735 I. Comp. Stat. § 5/12-706 allows the court to enter a conditional judgment against a garnishee

who fails to appear. A summons is then sent to the garnishee ordering it to show cause why the

il



order of March 12, 2002 that it appear through its corporate representative for citation proceedings;
further, A. Stallone, Inc has not purged itself of contempt as found by the District Judge on March
12, 2002.

B. Marie Stallone has violated the District Court’s order of March 12, 2002 that she
appear as corporate representative for a deposition of the corporation in connection with the citation
procccdings.

Cc, Marie Stallone has failed to appear for citation proceedings pursuant to the District
Court's order of February 7, 2002; that although that order may have been stayed during the period
in which her bankruptcy case was pending, she has failed to present hersclf for citations procecdings
following the dismissal of her bankruptcy case.

D. Marlene Stallone failed to appear in court on January 31, 2002 or February 7, 2002,
in violation of the District Court’s express order to show cause why she did not appear for citation
proceedings. She also failed to present hersclf for citation proceedings following the dismissal of
her first bankruptcy case. Because of the pending bankruptcy proceedings, no action can be taken
to enforce Marlene Stallone’s persona] liability.

dD. The plaintiff has failed to show that Bernice Ventresca has any assets that might be
used to satisfy the judgment. The plaintiff has shown a basis to believe that such assets may have
been transferred to the Shur Trust of which Beatrice Ventresca is the trustee; however, no citation
has been served upon Beatrice Ventresca.

LEGAL ANALYSIS
A, Citations to Discover Assets and Turnover Orders

Under Fed. R. Civ. P. 69, enforcement of a judgment is governed by state law. Illinois law

10



process, and they just can’t be served with anything.” (Tr. Sept. 27, 2001 at 3.) He further stated
that his clients failed to produce their documents even for his use in representing them. (/d. at 5.)
Later, in response to a motion to compel him to produce documents sought by the plaintiff in
discovery, he stated, “I think it’s pretty clear by now that these Defendants that we’re dealing with
are not particularly honest.” (Tr. Nov. 8, 2001 at 8.) He also stated that “[a] major problem in this
case, at least for me, was that my clients refused to turn over documents to me.” (/d. at 3.) The
District Judge again ordered the individual Stalloncs to appear before him in connection with their
counscl’s motion to withdraw. (Tr. Sept. 27, 2001 at 3.) At the subsequent hearing, that counsel was
given leave to withdraw, and a third attomey filed an appearance for the defendants. (Tr. Oct. 9,
2001 at 2.) Although the individual defendants did not appear in response to the court’s order, on
the representation of their new attorncy that they had provided him the necessary documents, the
District Judge again excused their absence. (Jd, al 6-7.)

As outlined above, following the entry of summary judgment, the plaintiff served citations
to discover assets on Marie, Laura and Marlene Stallone, which were ignored. At the proceedings
on the plaintiff's motion to have Marie and Marlene Stallone and the corporation held in contempt,
the defendants’ appellate counsel appeared. [Dkt # 51.] That counsel subsequently filed his
appearance, defendants’ fourth attomey in this case. [Dkt # 53.] The contempt motion was
continued until January 31, 2002, and again until February 7, 2002, at which time the defendants
were ordered to appear . [Dkt ## 51, 54.] Marie Stallone appeared at the hearing on February 7";
she was ordered to appear al citation proceedings on February 12, 2002 at 10:00 a.m., and the

hearing on the contempt motion against Marlene and Laura Stallone was continued to February 12,

2002 at 1:30 p.m. [Dkt #57.] Marlene and Laura Stallone did not appear on February 12, 2002, and



Judge Holderman, [Dkt #2.] Judge Holderman granted the motion in the sense that he requested
that this case be reassigned to him [dkt # 3], and it was reassigned to him. [Dkt #4.] Subscquently,
a third case against the same defendants, Heartland Produce Co, v. A, Stallone dne., No. 01-C-3560,
was reassigned to Judge Holderman. [Dkt # 3}(01-C-3560). The cases were never formally
consolidated in the District Court. On November 29, 2001, Mandolini Co. was referred to
Magistrate Judge Denlow. [Dkt # 69](00-C-7016).

The plaintiff in this case, Anthony Marano Co., moved for summary judgment on August 10,
2001. [Dkt # 26.] On October 9, 2001, the District Judge granted the plaintiffs motion, and
Judgment was entered in favor of the plaintiff and against the defendants (A. Stallone, Inc., Marie
Stallone, Marlene Stallone and Laura Stallone) jointly and severally as follows: $20,165.90, plus
interest in the amount of $2,579.79 from November 1 » 2000 through October 9, 2001, plus attorneys’
fees and costs in the amount of $17,312.50, plus an additional $5.52 in interest for each day past
October 9, 2001 until the plaintiff receives payment. The defendants were ordered to pay the
judgment in full and the attomeys’ fees and costs by October 31, 2001. {Dkt ## 39, 40.) The
defendants appealed that judgment, but the appeals of all but Laura Stallone (who had filed for
bankruptcy) were dismissed by the Court of Appeals in May, 2002 (as to A. Stallone, Inc.) and
September, 2002 (as to Marie and Marlene Stallone).?
B. The Citations and the Present Motion

On October 31, 2001, following the entry of judgment in this case, a Citation to discover

assets was issued by the court to Maria, Marlene and Laura Stallone. On January 15, 2002, the

The defendants’ appeals from this judgment and the judgment in the Mandolini case were
consolidated by the Court of Appeals. [Dkt # 47,]

3


Dowell, 257 F.3d 694, 699 (7" Cir. 2001). Such sanctions may include attorncy’s fees. Jn re
Establishment Inspection of Microcosm, 95\ F.2d 121, 121 (7" Cir. 1991).

A finding of civil contempt requires: “(1) that the court entered a lawful order of reasonable
specificity; (2) the order was violated.” Grove Fresh, 888 F. Supp 1436 (quoting Jn re Betts, 927
F.2d 983, 986 (7" Cir. 1991)). The specificity of an order is a “question of fact to be resolved with
reference to the context in which the order is entered and the audience to which it is addressed.” Jd.
at 1438. The violation of the order need not be willful, and a court “may find a party in civil
contempt if he has not been reasonably diligent and energetic in attempting to accomplish what was
ordered.” Federal Trade Commission v. Think Achievement Corp., 144 F. Supp. 2d 1029, 1034
(internal quotations omitted). To avoid contempt, the defendant may come forward with evidence
to establish his inability to comply. The elements of civil contempt must be established by clear and
convincing evidence. Grove Fresh, 888 F. Supp at 1436.

Equal Employment Opportunity Commission v. Paragon Restaurant, Inc., No, 95 C 667,
1999 WL 231678 at *1 (N.D. Ill. Mar. 26, 1999)(Coar, J.) involved facts similar to the present case.
In Paragon, the defendant failed to comply with a citation to discover assets and was the subject of
a contempt motion. The court ordered the defendant to present himself for discovery on a date
selected by the plaintiff and stated that a failure to appear or to deliver required materials would
result in a fine of $100 per day until the defendant complied. /d. The court also ordcred defendants
to pay plaintiff's attorney’s fees and costs. /d. at *9

Likewise in /a re Joint Eastern and Southern Districts Asbestos Litigation, 71 F.3d 1319 qm
Cir. 1995), the defendant had failed to pay a prior contempt judgment in New York and failed to

appcar at a citation to discover assets in Illinois. /d. at 1320. He was ordered imprisoned until he

14



Marie Stallone, along with the other defendants, was previously warned by the District Judge
of the consequences of failure to comply with orders. They have not presented any response lo the
plaintiff's present motions, None of the defendants have complicd with the October 9, 2001 order
[dkt # 39] to pay the judgment, interest and attorneys’ fees to the plaintiff. The District Judge
previously entered an order finding the corporate defendant in contempt and ordering a daily fine to
compel compliance (Order, March 12, 2002)[dkt # 62], yet Marie Stallone has failed to appcar for
citation proceedings as the corporate representative, as ordered by the District Judge. Thus,
additional monetary sanctions are unlikely to be effective, and the time has come when a warrant for
the arrest of Marie Stallone is appropriate. See United States v. Lippitt, 180 F.3d 873, 874-875 (7"
Cir, 1999)(imposing imprisonment as a civil contempt sanction for failure to pay fine); United States
v. Herrera-Rivera, 25 F.3d 491, 494 (7" Cir, 1994)(attomey properly arrested and held in criminal
contempt for failure to appear at start of trial),

‘The plaintiff's objective in bringing the present motions is to collect the judgment and other
amounts awarded by the court. Civil rather than criminal contempt is better suited to accomplish
that result.

The authority of a Magistrate Judge to find and punish contempt is governed by 28 U.S.C.
§636(e). In this case, which is before this court on a referral from the District Judge and in which
the allegedly contemptuous conduct did not occur in connection with proceedings before this court,
this court cannot enter the order finding and punishing contempt, but must make a report and
recommendation to the District Judge.

Thus, this court respectfully recommends that the plaintiffs Motion to Hold Marlene

Stallone and Maria Stallone in Contempt be granted in part and stayed in part as follows: (a) that

16



and Marie Stallone have repeatedly failed to comply with a variety of court orders in this and
associated litigation, including previous orders to appear in court. For the reasons set out below, this
court believes that Marie Stallone should be held in contempt of court; however, under these
circumstances, a Magistrate Judge docs not have authority to hold aparty in contempt and must issue
areport and recommendation. Thus, this court respectfully recommends that the plaintiff's Motion
to Hold Marlene Stallone and Matia (sic) Stallone in Contempt be granted in part and stayed in part
as follows: (a) that the motion be granted as to Marie Stallone, and a bench warrant be issued for the
arrest of Marie Stallone to compel her appearance before the Court and her compliance with previous
court orders and with citations to discover assets previously issued by the Clerk of the Court; and
(b) that the motion be stayed as to Marlene Stallone without prejudice during the pendency of her
bankruptcy case, so that if that case is dismissed, the plaintiff can renew the motion. This court
further respectfully recommends that the plaintiff's motion to hold Bernice Ventresca in contempt
be denied, and that the citation against Bernice Ventresca be dismissed, without prejudice to the

plaintiff's serving a citation upon Beatrice Ventresca.

FACTUAL BACKGROUND
A Complaint and Judgment
On December 21, 2000, the plaintiff filed a complaint under the Perishable Agricultural
Commodities Act, 7U.S.C. § 499e(c)(5)(“PACA”), against A. Stallone Inc., Marie Stallone, Marlene
Stallone and Laura Stallone. [Dkt# 1.] Although this case was initially assigned to another District
Judge, the plaintiff brought a motion to consolidate it with a previously-filed case Mandolini Co.

y. A. Stallone Inc., No, 00-C-7016, involving the same Respondents, then pending before District



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ANTHONY MARANO COMPANY
Plaintiff,
vs. Case No. 00 C 8019

A. STALLONE, INC. et al., District Judge James F, Holderman

Detendant and Judgment Debtor Magistrate Judge Geraldine Soat Brown

Bernice Ventresca
Citation Third Party Respondent

Joseph M. Lucas
Citation Third Party Respondent

Marlene Stallone and Marie Stallone
Citation Respondent

wee Sw eS eS ev

To: Honorable James R. Holderman
United States District Judge

REPORT AND RECOMMENDATION

Geraldine Soat Brown, United States Magistrate Judge

INTRODUCTION
This casc has been referred by the District Judge for proceedings on the plaintiff's motion
to hold Marlene Stallone and Marie Stallone in contempt of court, and the plaintiff's motion to hold
Bemice Ventrescain contempt of court, and for a tumover order regarding property of which Bernice

Ventresca is the trustee. [Dkt ## 63, 64]’. As the facts set out below demonstrate, Marlene Stallone

‘Those motions were captioned as if this case had been consolidated with Heartland Produce
Co. v. A. Stallone, Inc., 01 C 3560 (N.D. lL). However, as discussed herein, this case was never
formally consolidated with associated cases against the same defendants.



judgment should not be made final. Jd. If the garnishee fails to appear the court may then make the
conditional order final. Jd.
B. Contempt Proceedings

Subpoenas have “never been treated as an invitation to a game of hare and hounds in which
the witness must testify only if cornered at the end of the chase.” Charles A. Wright, Arthur R.
Miller and Richard L, Marcus, 2 Federal Practice and Procedure: Criminal, § 279 al 278 (3 ed.,
West., 1994) (“Wright & Miller”), quoting United States v. Bryan, 339 U.S. 323, 332 (1950). Thus,
“{ajn ordinary witness who fails to appear for the taking of his or her deposition after being
subpoenaed is guilty of contempt.” 8A Wright & Miller, § 2107 at 59 (2TM ed., West, 1994). Under
Fed. R. Civ, Pro. 45(e) the “[flailure by any person without adequate excuse to obey a subpoena .
. -may be deemed a contempt of the court... .” Illinois law also specifically provides that failure
to comply with a citation to discover assets may constitute contempt of court. 735 Ill. Comp, Stat.
§ 5/2-1402.

Contempt may be either civil or criminal. Civil contempt is designed to compel an action
and compensate the partics for losses resulting from non-compliance. United States v. United Mine
Workers of America, 330 U.S. 258, 303-304 (1947). Criminal contempt, in contrast, is designed to
punish prior disobedience. Gompers v. Buck's Stove and Range Co,, 221 U.S. 418, 450 (1911).
Parties can potentially be held in both civil and criminal contempt. Grove Fresh Distributors, Inc.
v, John Labatt Ltd., 888 F. Supp 1427, 1449 (N.D. Mil. 1995)(finding defendant in criminal and civil
contempt for failing to appear before district court.)

Criminal contempt is authorized by 18 U.S.C. § 401. This statute authorizes a court “to

punish by fine or imprisonment, or both, at its discretion, . . . (3) Disobedience or resistance to its

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cooperated in the discovery of his assets. /d. When the defendant appealed, ihe imprisonment was
stayed upon the posting of a bond exceeding the value of the judgment against him. /d. at 1321.

When the appeal was dismissed, the bond was disbursed to the plaintiff. /d.

RECOMMENDATION

In this case, the defendants have run the string out. Marie Stallone personally and on behalf
of the corporate defendant has shown a blatant disregard for orders of the court.’ The court’s
citations and orders to appear and show cause specifically indicated the time and place that Marie
Stallone was to appear personally and as the corporate representative. Those citations and orders
were clearly violated. The citation issued on September 10, 2002 states that the recipicnts “are
hereby summoned” to appear at a specific time and place. (Citation In Supp. Proceedings to
Discover Asscts at 2, attached to Pl.’s Mot. to Hold Bernice Ventresca in Contempt.) The citation
clearly notes, in all capital letters, that failure to appear “may result in the filing of a motion by the
judgment creditor requesting that you be arrested and brought before the court to answer a charge
of contempt of court, which may be punishable by imprisonment in a fedcral correctional facility.”
(Ud.) A notice stating the date and time when individuals “are” to appear is “uncquivocal” for the
putposcs of contempt. United States v. Dowell, 257 F.3d at 699. Moreover, the “timing and
context” ofa notice are significant and an individual previously wamed that failure to appear would
result in a contempt citation “cannot ercdibly argue that the court’s notice did not mandate his

appearance.” Jd.

4As discussed above, due to the pendency of Marlene Stallonc’s bankruptcy case, the motion
was stayed as to her personally. For that reason, this recommendation is limited to Marie Stallone
and the corporate defendant A. Stallone, Inc.

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