Biscayne Contractors, Inc. v. Redding , 219 F. Supp. 3d 41 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BISCAYNE CONTRACTORS, INC.,
Plaintiff,
v. Civil Action No. 14-mc-284 (GK)
JAMES REDDING,
Defendant.
MEMORANDUM OPINION
This case concerns the ongoing efforts of Plaintiff Biscayne
Contractors, Inc. ("Plaintiff") to collect on a Final Judgment
entered against Defendant James Redding ("Defendant" or "Redding")
in the District Court for the Eastern District of Virginia in Case
No. 13-765, Biscayne Contractors, Inc. v. James Redding. See
Registration of Foreign Judgment [Dkt. No. 1]. As part of
Plaintiff's collection efforts, on July 30, 2015, it obtained a
Judgment of Condemnation against Garnishee Mohammed Abu-El-Hawa
("Garnishee" or "Abu-El-Hawa"). See Order Granting Plaintiff's
Motion for Judgment of Condemnation [Dkt. No. 13].
On September 2, 2015, Abu-El-Hawa filed a Motion to Set Aside
the Judgment entered against him. Motion to Set Aside ·Judgment
Entered Against Garnishee Mohammed Abu-El-Hawa ("Garnishee's Mot."
or "Motion to Set Aside") [Dkt. No. 16]. On September 28, 2015,
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Plaintiff filed its Opposition to Garnishee's Motion ("Opp.")
[Dkt. No. 19], and on October 15, 2015, Abu-El-Hawa filed his Reply
("Reply") [Dkt. No. 24].
On October 22, 2015, Plaintiff filed a Motion for Leave to
File Surreply ("Surreply") [Dkt. No. 26]. On December 1, 2015, the
Court granted Plaintiff's Motion to file a Surreply and ordered
the parties to file responses to questions the Court posed in the
Order of December 1, 2015 Order [Dkt. No. 27]. On December 1, 2015,
Plaintiff filed a Surreply [Dkt. No. 28]. On January 14, 2016,
Plaintiff and Abu-El-Hawa both filed responses to the Court's
December 1, 2016 Order. Plaintiff's Supplemental Brief in
Opposition to Garnishee's Mot. To Set Aside Judgment ("Pl's Supp.
Br.") [Dkt. No.· 29]; Garnishee's Response to Questions Posed in
Court's December 1, 2015 Order ("Garnishee's Resp.") [Dkt. No.
30] .
Upon consideration of the Motion, Opposition, Reply, and
Sur reply, and the entire confusing record herein, and for the
reasons that follow, Abu-El-Hawa' s Motion to set Aside Judgment
shall be granted in. part.1
1 Although it was not filed as a motion, Plaintiff's Opposition
also included a request that the Court amend a previously entered
Charging Order. For the reasons stated below, Plaintiff's request
to amend the Charging Order shall be denied without prejudice.
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I . BACKGOUND
On March 18, 2014, Plaintiff Biscayne Contractors, Inc. filed
with the Clerk of this Court a Final Judgment entered against
Defendant James Redding in the District Court for the Eastern
District of Virginia in Case No. 13-765, Biscayne Contractors,
Inc. v. James Redding. See Registration of Foreign Judgment.
On March 31, 2014, Garnishee Mohammed Abu-El-Hawa, along with
Ahmad Ayyad, entered into an agreement with Defendant Redding to
purchase an interest in Defendant's company, TMB Holdings, LLC.
Under the agreement, Defendant transferred to Abu-El-Hawa and
Mr. Ayyad a 49% interest in TBM Holdings, LLC in exchange for a
Promissory Note ("the Note") with a principal amount of $350,000
(i.e., Defendant gave Abu-El-Hawa and Mr. Ayyad a 49% interest in
TBM Holdings, LLC in exchange for their promise to pay him $350,000
at a future date) . According to Attachment A appended to the Note,
Defendant Redding retained a 51% interest in TBM Holdings.
Garnishee's Aff. at 10 [Dkt. No. 16-2].
On April 10, 2014, Plaintiff filed a Motion for a Charging
Order as to Defendant's interests in several companies, including
TBM Holdings, LLC. Motion for a Charging Order [Dkt. No. 2]. On
May 5, 2014, the Court granted Plaintiff's Motion for a Charging
Order. Charging Order of May 5, 2014 ("the Charging Order") [Dkt.
No. 3]. Among other things, the Charging Order states that "TBM
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Holdings, LLC shall pay and/ or deliver over to Plaintiff all
present and future proceeds, distributions, drawings, payments,
and property to which Defendant may be entitled as a result of
this interest in TBM Holdings, LLC[.]" Charging Order at 2.
On May 6, 2014, Plaintiff filed the Charging Order with the
D.C. Department of Regulatory and Consumer Affairs, and on August
9, 2014, Plaintiff finally delivered a copy of the Charging Order
to Abu-El-Hawa.
On June 16, 2015, Plaintiff served on Abu-El-Hawa a Writ of
Attachment on Judgment Other Than Wages, Salary and Commissions,
by which Plaintiff sought to garnish the stream of payments due
under the Note in order to satisfy its Judgment against Defendant.
See Affidavit of Service [Dkt. No. 11]. Abu-El-Hawa, who was an
experienced business man, did not retain an attorney and, acting
pro se, failed to respond to the Writ.
On July 9, 2015, Plaintiff filed a Motion for Judgment of
Condemnation Pursuant to Title 16, § 526(b) D.C. Code [Dkt. No.
12], seeking a Judgment against Abu-El-Hawa in the amount of
$350,000, i.e., the value of the Note Abu-El-Hawa and his partner
had executed payable to Defendant. Because Abu-El-Hawa, still
proceeding pro se, did not respond to Plaintiff's Motion for
Judgment, on July 30, 2015, the Court entered an Order granting
the Motion. Order of July 30, 2015 [Dkt. No. 13].
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On August 3, 2015, the Clerk of the Court entered a Judgment
against Abu-El-Hawa in the amount of $350,000. Clerk's Judgment of
August 3, 2015 ("the Judgment") [Dkt. No. 14]. Slightly less than
a month later, on September 2, 2015, Abu-El-Hawa, having finally
retained counsel, filed his Motion to Set Aside the Judgment,
contending that the Judgment should be vacated under Federal Rule
of Civil Procedure 60(b) because Abu-El-Hawa had already paid the
$350,000 due on the Note and that his failure to respond to the
Writ was due to "mistake, inadvertence, surprise, or excusable
neglect." Garnishee's Mot. at 4 (quoting Fed. R. Civ. P. 60(b)).
After requesting an extension of time, which was granted on
September 28, 2015, Plaintiff filed its Opposition, arguing that
the Court should not vacate the Judgment because Abu-El-Hawa did
not, in fact, pay off the Note; Abu-El-Hawa's default was willful;
and Abu-El-Hawa made payments in violation of the Charging Order.
Pl.'s Opp'n at 3.
After requesting an extension of time, which was granted on
October 15, 2015, Abu-El-Hawa filed his Reply. On October 22, 2015,
Plaintiff filed his Motion for Leave to File Surreply along with
a copy of the Sur reply itself, which was granted on December 1,
2015 [Dkt. No. 27], and the Surreply was filed the same day.
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II. STANDARD OF REVIEW
"Pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure a district court is permitted to 'relieve a party or its
legal representative from a final judgment, order, or proceeding'
on one of six enumerated grounds." Jarvis v. Parker, 13 F. Supp.
3d 74, 77 (D.D.C. 2014) (quoting Fed. R. Civ. P. 60 (b)). What is
relevant in this case is that Rule 60(b) permits a Court to vacate
a judgment for "mistake, inadvertence, surprise, or excusable
neglect" or "any other reason that justifies relief." Fed. R. Civ.
P. 60 (b) . "The party seeking relief under Rule 60 (b) bears the
burden of showing that he or she is entitled to the relief."
Jarvis, 13 F. Supp. 3d at 77 (citing Norris v. Salazar, 277 F.R.D.
22, 25 (D.D.C. 2011).
III. ANALYSIS
A. Garnishee's Motion to Set Aside
Although Abu-El-Hawa is not the defendant in Plaintiff's
action, the Judgment against him arose from his failure to respond
to Plaintiff's filings, and thus, it is properly regarded as a
default judgment. "Default judgments are not favored by modern
courts, perhaps because it seems inherently unfair to use the
court's power to enter and enforce judgments as a penalty for
delays in filing." Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir.
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1980). "Modern courts are also reluctant to enter and enforce
judgments unwarranted by the facts." Id.In exercising the discretion to grant relief from a judgment
courts should consider (1) whether the alleged defense is
meritorious, (2) whether the default was willful, and (3) whether
a set-aside would prejudice the ·plaintiff. Keegel v. Key W. &
Caribbean Trading Co., 627 F.2d 372, 373 (D.C. Cir. 1980) (setting
forth three factors as they apply to motions to set aside under
Fed. R. Civ. P. 55 (c)); Int' 1 Painters & Allied Trades Union &
Indus. Pension Fund v. H.W. Ellis Painting Co., 288 F. Supp. 2d
22, 26 (D.D.C. 2003) (applying Keegel factors to motion under Rule
60 (b)) .
1. Merits of the Alleged Defense
By his own admission, Abu-El-Hawa failed to respond to
Plaintiff's filings and to make an appearance when he should have.
For that reason, he faces a ~udgment in the amount of $350,000.
However, Abu-El-Hawa claims to have a meritorious defense against
the Judgement because he paid off the Note that gives rise to that
Judgment. He claims he has already paid $350, 000 as the Note
requires, and if the Judgment stands, he will have to pay another
$350,000 to Plaintiff, Defendant's creditor.
Needless to say, if he is correct, $350,000 would be a sizable
"penalty for [a] delay[] in filing." Jackson, 636 F.2d at 835. If
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Abu-El-Hawa did in fact pay the same debt earlier, and therefore
would be paying it twice if the Judgment stands, the situation
would weigh strongly in favor of granting relief. Wrecking Corp.
of Am., Virginia v. Jersey Welding Supply, Inc., 463 A.2d 678, 680
(D.C. 1983) ("[A] critical factor for this court [the D.C. Court
of Appeals] to consider in reviewing the trial court's exercise of
discretion is whether the garnishee was in fact indebted to the
judgment debtor or possessed any property belonging to the
debtor.").
Many of the payments Abu-El-Hawa states were made in
satisfaction of the Note were made from accounts bearing the names
of Abu-El-Hawa's business interests rather than his personal
account, and the vast majority of those same payments were made to
Defendant's creditors rather than directly to Defendant himself as
required in the Note.
According to Plaintiff, none of these payments count as
performance in satisfaction of the Note. Plaintiff points to
language in the Note stating "Ahmad Ayyad and Mohammed Abu-El-Hawa
[] promise[] to pay to the order of James T. Redding [] . the
principal amount of Three Hundred Fifty Thousand Dollars and 00/100
Cents[.]" Garnishee's Aff. at 5. Plaintiff takes this language to
mean that only a check drawn on Abu-El-Hawa's personal account
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made payable to James Redding could satisfy the $350,000 debt owed
under the Note.
While it is true that the record is not entirely clear as to
whether all of the payments Abu-El-Hawa claims were made in
satisfaction of the Note, Plaintiff is wrong that none of them
were.
It is black letter contract law that an obligor (in this case,
Abu-El-Hawa) may fulfill his contractual obligations through
performance that does not conform precisely to the terms of the
contract. See Restatement (Second) of Contracts § 278 (1) (1981)
("If an obligee accepts in satisfaction of the obligor's duty a
performance offered by the obligor that differs from what is due,
the duty is discharged."). Moreover, the fact that payments might
have come from Abu-El-Hawa's business interests -- that is, from
distinct legal persons-or institutions--does not preclude those
payments from satisfying the Note. See id. § 278 (2) ("If an obligee
accepts in satisfaction of the obligor's duty a performance offered
by a third person, the duty is discharged . • II) • 2
2Abu-El-Hawa's payments from his business interests to Defendant's
creditors might also be characterized as a "novation," which the
Restatement (Second) of Contracts defines as a substituted
contract that includes as a party one who was neither the obligor
nor the obligee of the original duty." See Restatement (Second)
of Contracts § 2 8 0 ( 1981) . "A novation discharges the original
duty[.]" Id. Comment b.
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Thus, as long as Defendant accepted payments made by Abu-El-
Hawa's business interests (rather than by Abu-El-Hawa himself) as
well as payments made to Defendant's creditors (rather than to
Defendant himself), then those payments would serve to satisfy
Abu-El-Hawa's obligations under the Note.
Abu-El-Hawa has offered sufficient proof that at least some
of his payments satisfied these conditions. Abu-El-Hawa states in
his affidavits that "the $350,000 owed pursuant to the promissory
note generally went to pay creditors of TBM Holdings, LLC [in which
Defendant still maintains a 51% interest] as of March 31, 2014,"
Abu-El-Hawa Aff. CJI 10 [Dkt. No. 16-2], and that "[p] ayments against
the Note were made to creditors of Mr. Redding and his companies
pursuant to Mr. Redding's explicit request." Abu-El-Hawa Deel. CJI
Illustrations to § 280 demonstrate clearly that payment from
someone other than the obligor and payment to someone other than
the obligee may serve to satisfy a duty owed under the original
contract. See id. Illustration to Comment d. ("A owes B $1, 000. B
promises A that he will discharge the debt immediately if C will
promise B to pay B $1,000. C so promises. There is a novation under
which B's and C's promises are consideration for each other and A
is discharged."); id. Illustration to Comment f. ("A owes B $1,000
and B owes C $1,000. A promises B and C that he will assume B's
debt to C if B promises to discharge A's debt to Band if C promises
to discharge B's debt to C and accept A as his. debtor. Band C so
promise. There is a novation under which A's promise and B's and
C's promises are consideration for each other, and A's debt to B
and B's debt to Care discharged."). Accordingly, under a novation
theory, payments from businesses associated with Abu-El-Hawa to
Defendant's creditors would have served to satisfy the Note as
well.
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1 [Dkt. No. 30-1]. For these reasons, Abu-El-Hawa claims, "I am
not indebted to Defendant[.]" Abu-El-Hawa Aff. ~ 11. Abu-El-Hawa
also cites Defendant's deposition testimony, which is not
challenged by Plaintiff, to show that he accepted Abu-El-Hawa's
payments on the Note. [Dkt. No. 12-3] at 8.
Plaintiff does not challenge Abu-El-Hawa' s statements and
Defendant's deposition testimony with contrary deposition
testimony or competing affidavits. Instead, Plaintiff relies
mainly upon its theory that Abu-El-Hawa could not tender -- and
Defendant could not accept -- any performance in satisfaction of
the Note other than a personal check from Abu-El-Hawa made out
directly to Defendant. Pl.'s Opp'n at 10-11.
For the first time in its Supplemental Brief, Plaintiff cites
D.C. Code § 28:3-602 and § 28:3-301 in support of its theory.
Plaintiff argues that a promissory note may only be satisfied
through payments made to "person [ s] entitled to enforce" the
promissory note. D.C. Code§ 28:3-602. A "person entitled to
enforce" means "(i) the holder of the instrument, (ii) a non-
holder in possession of the instrument who has the rights of a
holder, or (iii) a person not in possession of the instrument who
is entitled to enforce the instrument pursuant to section 28:3-
309 or 28:3-418(d). D.C. Code§ 28:3-301.
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Although Plaintiff argues that none of the parties allegedly
paid in satisfaction of the Note and accepted by Defendant fit
into any of these categories, it has not provided any evidence to
support that argument. In contrast, Garnishee has provided
statements and testimony indicating that neither he nor Defendant
disputes that TBM's creditors were entitled to receive payments on
the Note. Thus, Plaintiff's mere theory of Abu-El-Hawa's
obligations under the Note is not enough to condemn Abu-El-Hawa to
pay the full amount of his substantial obligation twice.
Nonetheless, the Court does not hold that Abu-El-Hawa has, in
fact, satisfied all of the terms of the Note. Other defects with
payments he claims to have made in satisfaction of the Note remain.
Opp. At 11. Abu-El-Hawa submitted 5 payments totalling $18,855.98
made before the Promissory Note was signed. The terms of the Note
do not contemplate satisfaction by past payments, and in fact the
terms appear to require future payment. See Garnishee's Aff. at 5-
12. Abu-El-Hawa's defense as to these payments would not be
meritorious and the Judgment of Condemnation will stand against
these payments.
Plaintiff also asserts that Defendant owned only 51% of TBM
Holdings, LLC (a.k.a. Driftwood Kitchen), and was only responsible
for 51% of its debts. Thus, Plaintiff argues that only 51% of the
payments to creditors of TBM Holdings, LLC can constitute a payment
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by Abu-El-Hawa on the Note. If this were true, the Court assumes
that Abu-El-Hawa should only get credit for a portion of the
payments made by MAAJ, Inc.3 (a.k.a. DarNa Restaurant and Lounge)
corresponding to Defendant's ownership interest in MAAJ, Inc.
Abu-El-Hawa asserts that the payments made to creditors of
TBM Holdings, LLC were for debts incurred prior to the transfer of
the 49% interest. He makes no parallel assertions with regard to
the payments made by MAAJ, Inc. The Court finds that this defense
might be meritorious if it were supported by appropriate
documentation. At this time, the briefing and evidence submitted
by both parties is inconclusive on this issue. The Court will
reverse the Judgment of Condemnation as to these payments, and
will accept further submissions by both parties as to what
percentage of these payments can satisfy the Note.
2. Willfulness
Although Abu-El-Hawa's payment history and affidavit suggest
strongly that a Judgment in the full amount of $350,000 is not
supported by the facts, the Court must next consider whether Abu-
El-Hawa's failure to respond to the Writ of Attachment on Judgment
Other Than Wages, Salary and Commissions and its accompanying
3 DarNa Restaurant and Lounge is the d/b/a for MAAJ, Inc., another
restaurant owned in part by both Defendant and Abu-El-Hawa. Twelve
of Abu-El-Hawa's alleged payments on the Note were made by MAAJ,
Inc. or DarNa Restaurant and Lounge.
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.
interrogatories ("the Writ") [ Dkt. Nos. 9, 11] was sufficiently
willful to preclude relief. The Court concludes that it was not.
"The boundary of willfulness lies somewheie between a case
involving a negligent filing error, which is normally conside~ed
an excusable failure to respond, and a deliberate decision to
default, which is generally not excusable." Int'l Painters, 288 F.
Supp. 2d at 26 (citing Gucci Am., Inc. v. Gold Center Jewelry, 158
F.3d 631, 634 (2d Cir. 1998)). In order to discern on which side
of the boundary Abu-El-Hawa's conduct falls, both Parties point to
an opinion from the Court of Appeals for the District of Columbia:
Wrecking Corp. of Am., Virginia v. Jersey Welding Supply, Inc.,
463 A.2d 678 (D.C. 1983).
In Wrecking Corp., the D. C. Court of Appeals overturned a
trial court's denial of Wrecking Corporation of America's
("Wrecking Corp.") motion to reconsider a judgment of condemnation
in the amount of $5,271.70 entered against Wrecking Corp. 463 A.2d
at 678-79. Like Abu-El-Hawa, Wrecking Corp. produced evidence
showing that it neither owed a debt to the judgment debtor nor
held property belonging to it, but, again like Abu-El-Hawa,
Wrecking Corp. had failed to respond to the plaintiff's writ of
attachment. Id. Unlike Abu-El-Hawa, however, Wrecking Corp. did
respond to the plaintiff's motion for a judgment of condemnation.
Id. On those facts, the D.C. Court of Appeals held that "the trial
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court abused its discretion in not vacating the judgment of
condemnation." Id. at 680.
Abu-El-Hawa's failure to respond even after being served with
Plaintiff's Motion for Judgment of Condemnation is significant.
However, while Abu-El-Hawa, who was unrepresented by counsel until
shortly before filing his Motion to Set Aside, failed to formally
respond to Plaintiff's filings, he did cooperate with Plaintiff's
counsel and provided responses to Plaintiff's discovery requests
on a number of occasions beginning in late 2014.
For example, on December 19, 2014, Abu-El-Hawa provided
documents to Plaintiff. Garnishee's Aff. at 14-38 [Dkt. No. 16-
2]. He provided additional information to Plaintiff in early 2015,
and on June 23, 2015, sent Plaintiff copies of checks evidencing
other payments on the Note. Id. at 44-70. Even while Abu-El-Hawa
was neglecting his duty to respond to Plaintiff's Motion for
Judgment of Condemnation, which was filed on July 9, 2015, he sent
Plaintiff additional evidence of payments on the Note on July 15,
2015 and August 10, 2015. Id. at 72-86.
Thus, despite Abu-El-Hawa' s failure to formally respond to
Plaintiff's filings, he actually provided Plaintiff with much of
the information it sought. Abu-El-Hawa's informal cooperation
definitely cuts against a finding of willfulness.
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However, Plaintiff contends that Abu-El-Hawa demonstrated
willfulness by making a payment to Defendant from the assets of
TBM Holdings, LLC in violation of the terms of the May 5, 2014
Charging Order. Plaintiff contends, and Abu-El-Hawa does not deny,
that Abu-El-Hawa did not receive actual notice of the Charging
Order until August 9, 2014. The Court has not seen any evidence
that Abu-El-Hawa, operating pro se, had any knowledge of the
restrictions of the Charging Order before August 9, 2014 or of any
obligations associated with these proceedings before that date.
Therefore, the Court finds that Abu-El-Hawa did not willfully fail
to respond before he had actual notice of the Charging Order and
these proceedings. However, Abu-El-Hawa's decision to direct TBM
Holdings, LLC to make payments in violation of the Charging Order
after he had actual notice does cut in favor of a finding of
willfulness.
Finally, Abu-El-Hawa did not unreasonably delay in his
attempt to set aside the Judgment after it had been entered. The
Clerk of Court entered the Judgment against Abu-El-Hawa on August
3, 2015. Having finally hired an attorney, less than a month later
on September 2, 2015, Abu-El-Hawa filed his Motion to Set Aside
Judgment entered against him.
Thus, the Court finds that Abu-El-Hawa's failure to respond
was willful after August 9, 2014, when he had actual notice of the
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Charging Order, and by extension of these proceedings. The Court's
Judgment of Condemnation will therefore stand as to the $59,000 in
payments Abu-El-Hawa made after August 9, 2014.
As to the remaining payments, while Abu-El-Hawa
unquestionably failed to comply with his duty to respond to
Plaintiff's filings, his failure was not so willful as to merit
the penalty of potentially paying the full $350,000 debt twice.
The Judgement of Condemnation is therefore reversed as to the
remaining $272,144.02 that was neither paid before the date of the
Note (see supra at 12) nor after Abu-El-Hawa had actual notice of
the Charging Order.
3. Prejudice to the Plaintiff
Finally, the Court must consider any prejudice to Plaintiff
that granting Abu-El-Hawa's Motion to Set Aside would cause. As
the facts above make clear, it would appear that Abu-El-Hawa has
already paid a large portion of the amount due on the Note.
Substantively, therefore, setting aside the Judgment would not
prejudice Plaintiff as much as deny it the opportunity to receive
a windfall in the form of an additional source from which to
collect on its Final Judgment against Defendant James Redding. 4
4The Court is well aware that Defendant is currently incarcerated
for two years. However, that information is of no relevance in
this instance.
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Accordingly, the Court concludes that partial relief from the
Judgment entered against Abu-El-Hawa is justified under Rule
60 (b) .
B. Plaintiff's Request to Amend the Charging Order
In its Opposition, Plaintiff requests that the Court clarify
the Charging Order to state that Plaintiff has a lien on 100% of
TBM Holdings, LLC rather than just the 51% retained by Defendant.
Defendant's sale of a 49% interest in TBM Holdings, LLC on March
31, 2014 preceded issuance of the Charging Order on May 5, 2014,
so it is not clear why the lien should extend to Abu-El-Hawa's
interest in TBM Holdings, LLC. Plaintiff appears to contend that
a lien against Defendant's interest would extend to Abu-El-Hawa's
interest until the Note was fully satisfied. However, because the
record and the Parties' briefs on these points remain unclear, the
Court denies Plaintiff's request without prejudice. Plaintiff
remains free to renew its request as a separate motion.
IV. CONCLUSION
For the foregoing reasons, Abu-El-Hawa's Motion to Set Aside
Judgment shall be granted in part and denied in part; and
Plaintiff's request that the Court amend the Charging Order shall
be denied without prejudice. The Judgment entered against Abu-El-
Hawa shall be reversed and reduced by $272,144.02. The Judgment of
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Condemnation shall be amended to $77,855.98. An Order shall
accompany this Memorandum Opinion.
November ~'f, 2016
Copies to: attorneys on record via ECF
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