Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 1 of 9
IN THE UNITED STATES COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
:
Jill and Ron Ryan, et al., :
individually and on behalf of others :
similarly situated, :
:
Plaintiffs, : No. 2:06-CV-0146 (WCO)
:
-against:
Class Action
:
Hidden Lake Academy, Inc., et al., :
:
Defendants. :
:
MOTION AND INCORPORATED MEMORANDUM OF LAW OF THE
SETTLEMENT CLASS REPRESENTATIVES TO ENFORCE
SETTLEMENT AND JUDGMENT
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 2 of 9
The Settlement Class Representative1 plaintiffs, individually and on behalf
of the Class, respectfully submit this motion in support of their request that the
court order the Defendants to comply with the parties’ settlement Stipulation, and
actually pay the $400,000 Settlement Fund to which they agreed to pay.
In further support thereof, plaintiffs state as follows.
FACTS
1. On December 13, 2007, the parties entered into their settlement
Stipulation. The settlement Stipulation was filed with the court that same day.
2. By order filed March 6, 2008 (Doc. 89), the court preliminarily
approved the parties’ Stipulation; appointed a Claims Administrator and directed
that the Claims Administrator send notice of the settlement to members of the
Class; set July 3, 2008 as the deadline for Class members to opt out of the Class
and to file objections to the settlement; set August 1, 2008 as the deadline for Class
members to file claims forms to participate in the settlement; and set September 9,
1
All capitalized terms not otherwise defined have the meanings set
forth in the parties’ Stipulation of Settlement dated December 13, 2007 (the
“Stipulation”), which was filed with the court on December 13, 2007 (Doc. 85-3).
The Settlement Class Representative plaintiffs include Doff Meyer, Robin Brecker,
Walter Coles, Theresa Pines, Dr. Edward Roberson and Madeleine Roberson.
-2
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 3 of 9
2008 for a final “fairness” hearing under Fed.R.Civ.P. 23(e) to consider whether
the court should grant final approval to the settlement.
3. In accordance with the court’s March 6, 2008 Order, the Claims
Administrator sent a total of 1,982 notices to Class members and other interested
parties who requested the notice.2 In response to the notice, no class member or
any other person filed an objection to the parties’ settlement.3 In addition, the
Claims Administrator received 243 claims from persons seeking to share in the
parties’ settlement. See Sincavage Decl. ¶ 10.
4. Also as part of the court’s consideration as to whether to approve the
parties’ settlement, the Defendants filed: (a) Defendants’ Memorandum of Law in
Support of Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement
(Doc. 86 filed Dec. 13, 2007), and (b) Defendants’ Memorandum in Support of
Settlement Class Representatives’ Motion for Final Approval of Class Action
2 See Declaration of Edward J. Sincavage, CPA Regarding
Dissemination of Notice to Class (Doc. 91-3 filed Aug. 22, 2008) (the “Sincavage
Decl.”) at ¶ 8.
3
See Joint Declaration of Michael J. Gorby and Lawrence J. Lederer in
Support of the Settlement Class Representatives’ Motion for Final Approval of
Class Action Settlement and Motion of Class Counsel for Payment of Certain
Costs and Expenses (Doc. 90-3 filed Aug. 22, 2008) (the “Joint Declaration”) at
¶ 26. Accord Sincavage Decl. at ¶ 9.
-3
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 4 of 9
Settlement (Doc. 92 filed Aug. 22, 2008). Defendants attached to their August 22,
2008 filing notices of the settlement given to 37 state Attorneys General and the
U.S. Attorney General in accordance with ¶ 12 of the parties’ Stipulation and 28
U.S.C. § 1715. These notices afforded these Attorneys General notice so that they
could file objections to the parties’ settlement. In response to these notices, the
Defendants stated in their August 22, 2008 filing that they did not receive any
objections. See Doc. 92 at p.3.
5. On September 9, 2008, the court held a hearing to consider whether to
grant final approval to the parties’ settlement. All parties appeared at the hearing.
No objectors appeared at the hearing.
6. On October 24, 2008 (Doc. 94), the court granted final approval to the
parties’ settlement. The court’s Order (at ¶ 6) specifically directed the parties “to
consummate the Settlement in accordance with the terms and provisions of the
Stipulation.” The court’s Order also provides (at ¶ 12) that the court retains
“[e]xclusive jurisdiction ... over all of the parties and the Class Members for all
matters relating to this Action, including the administration, interpretation,
effectuation or enforcement of the Stipulation ... .”
7. Paragraph 4(a) of the parties’ Stipulation provides as follows:
-4
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 5 of 9
Settlement Consideration
4.
(a) In full and complete settlement of the Released Claims,
the Defendants shall pay the Settlement Fund on or
before December 31, 2008 into an account established by
Class Counsel for the benefit of the Class Members. The
Defendants, collectively and individually, are each bound
and obligated to timely pay personally the full Settlement
Fund.4
8. The Defendants have failed to pay timely to the Class the Settlement
Fund or any portion thereof.
ARGUMENT
Based on the foregoing facts, plaintiffs seek an Order directing that the
Defendants pay to the Class within 10 days from the date of the Order, by certified
funds, the full $400,000 Settlement Fund, plus interest and costs in an amount to be
approved by the court, or show cause why they should not be held in contempt and
sanctioned. See, e.g., Fed.R.Civ.P. 70(e) (“The court may also hold the disobedient
party in contempt.”); Fed.R.Civ.P. 23(d)(1)(A) (providing that the court may issue
orders that determine the course of proceedings); Citronelle-Mobile Gathering, Inc.
v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991) (citing Shillitani v. United States,
4
Class counsel gave wire transfer instructions to Defendants’ counsel
on November 26, 2008.
-5
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 6 of 9
384 U.S. 364 (1966)) (“There can be no question that courts have inherent power to
enforce compliance with their lawful orders through civil contempt.”); Abbott
Laboratories v. Unlimited Beverages, 218 F.3d 1238 (11th Cir. 2000) (holding
defendant in contempt for violating injunction in settlement agreement for which
court entered consent judgment). Indeed here, this court has exclusive jurisdiction
over all matters in this litigation, including the enforcement of the parties’
settlement Stipulation as noted above. Accordingly, this court has exclusive
jurisdiction to order the Defendants pay to the Class the Settlement Fund.
Plaintiffs also seek an Order to enforce the parties’ settlement to enable
plaintiffs to commence post judgment execution proceedings in accordance with the
Federal Rules of Civil Procedure in the event that the Defendants still fail to pay,
even upon imposition of sanctions and a finding of contempt. Rule 69 of the
Federal Rules of Civil Procedure governs the procedure regarding execution on a
federal court money judgment. Rule 69(a) provides:
In General.
(1) Money Judgment; Applicable Procedure. A money judgment is
enforced by a writ of execution, unless the court directs otherwise.
The procedure on execution--and in proceedings supplementary to and
in aid of judgment or execution--must accord with the procedure of the
-6
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 7 of 9
state where the court is located, but a federal statute governs to the
extent it applies.
(2) Obtaining Discovery. In aid of the judgment or execution, the
judgment creditor or a successor in interest whose interest appears of
record may obtain discovery from any person--including the judgment
debtor--as provided in these rules or by the procedure of the state
where the court is located.
Fed.R.Civ.P. Rule 69(a).
In addition, Rule 64 of the Federal Rules of Civil Procedure provides a
judgment creditor a variety of remedies to seize property of a defendant:
Rule 64. Seizing a Person or Property.
(a) Remedies Under State Law--In General. At the commencement of
and throughout an action, every remedy is available that, under the law
of the state where the court is located, provides for seizing a person or
property to secure satisfaction of the potential judgment. But a federal
statute governs to the extent it applies.
(b) Specific Kinds of Remedies. The remedies available under this
rule include the following--however designated and regardless of
whether state procedure requires an independent action:
• arrest;
• attachment;
• garnishment;
• replevin;
• sequestration; and
• other corresponding or equivalent remedies.
-7
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 8 of 9
Fed.R.Civ.P. Rule 64.5
Plaintiffs also reserve all of their rights, including to seek that Defendants
pay their reasonable attorneys’ fees and expenses incurred in seeking to enforce and
collect the Settlement Fund owed to the Class by the Defendants. See, e.g.,
Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d at 1304 (affirming finding
of contempt and imposition of sanctions for judgment debtor’s failure to pay).
CONCLUSION
For the foregoing reasons, the Settlement Class Representative Plaintiffs
respectfully request that the court order the Defendants to pay to the Class the
$400,000 Settlement Fund and interest and costs within 10 days, or show cause why
the Defendants should not be held in contempt and sanctioned.
5
In order to facilitate obtaining a writ of execution under Fed.R.Civ.P.
69(a)(1), plaintiffs have already served post-judgment discovery on the Defendants
to ascertain the location and existence of any property or holdings of the
Defendants. A copy of that discovery is attached.
-8
Case 2:06-cv-00146-WCO Document 96 Filed 01/08/2009 Page 9 of 9
Dated: January __, 2009 Respectfully submitted,
BERGER & MONTAGUE, P.C. GORBY PETERS & ASSOCIATES,
LLC
/s/ Lawrence J. Lederer, Esq. /s/ Michael J. Gorby, Esq.
Merrill G. Davidoff, Esq. Michael J. Gorby, Esq.
mgorby@gorbypeters.com Lawrence J. Lederer, Esq. (Georgia Bar No. 301950)
mpeters@gorbypeters.com danziska@bm.net Telephone: (404) 239-1150
1622 Locust Street Fax: (404) 239-1179
Philadelphia, Pennsylvania 19103
Telephone: (215) 875-3000
Fax: (215) 875-4604
Counsel for the Settlement Class Representatives and the Class
-9
Case 2:06-cv-00146-WCO Document 96-2 Filed 01/08/2009 Page 1 of 3
IN THE UNITED STATES COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
:
Jill and Ron Ryan, et al., :
individually and on behalf of others :
similarly situated, :
:
Plaintiffs, : No. 2:06-CV-0146 (WCO)
:
-against:
Class Action
:
Hidden Lake Academy, Inc., et al., :
:
Defendants. :
:
[Proposed] ORDER
WHEREAS, following notice to Class Members1 and a hearing in
accordance with Fed.R.Civ.P. 23, the Court approved the parties’ settlement
Stipulation (Docs. 85 and 85-3);
1
All capitalized terms not otherwise defined have the meanings set
forth in the parties’ Stipulation of Settlement dated December 13, 2007 (the
“Stipulation”), which was filed with the Court on December 13, 2007 (Doc. 85-3).
The Settlement Class Representative plaintiffs include Doff Meyer, Robin Brecker,
Walter Coles, Theresa Pines, Dr. Edward Roberson and Madeleine Roberson.
Case 2:06-cv-00146-WCO Document 96-2 Filed 01/08/2009 Page 2 of 3
WHEREAS, the parties’ settlement Stipulation provides that the Defendants
were required to pay to the Class on or before December 31, 2008 the $400,000
Settlement Fund;
WHEREAS, the Defendants have failed to timely pay to the Class any
portion of that Settlement Fund;
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED THAT:
1. The Defendants have ten (10) calendar days from the date of this
Order to pay into the following account established by Class Counsel for the
benefit of the Class, by certified funds, the full Settlement Fund of $400,000, plus
interest in the amount of $__________ and the fees and costs of plaintiffs’ counsel
in seeking to enforce the parties’ settlement in the amount of $__________, c/o:
RBS Citizens, N.A.; ABA #011500120; Beneficiary: Institutional Services DDA
#15904938; For Further Credit: HLA Settlement Fund #5012278; Attn: Jean A.
Parillo (401) 282-3836. If the Defendants fail to timely and fully pay all of the
foregoing amounts within ten (10) calendar days hereof, each of the Defendants
shall, by said ten (10) calendar day deadline and without further order of the court,
2
Case 2:06-cv-00146-WCO Document 96-2 Filed 01/08/2009 Page 3 of 3
show cause why it or he (as the case may be), shall not be held in contempt and
sanctioned.
2. Further, if the Defendants fail to timely and fully pay all of the
foregoing amounts within ten (10) calendar days from the date of this Order,
plaintiffs may pursue all remedies to collect such sums as permitted by the Federal
Rules of Civil Procedure, including without limitation Rules 64, 69 and 70. The
Defendants are directed to comply with and timely respond fully and accurately to
all discovery plaintiffs serve relating to collection of the Settlement Fund for the
Class.
Dated: __________________, 2009
WILLIAM C. O’KELLEY
Senior United States District Judge
3
Case 2:06-cv-00146-WCO Document 96-3 Filed 01/08/2009 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
---------------------------------------------------)
J.O.R. and R.O.R., et al., )
INDIVIDUALLY AND BEHALF OF )
OTHERS SIMILARLY SITUATED, )
)
Plaintiffs, ) CIVIL ACTION FILE NO.:
) 2:06-CV-0146-WCO
-v)
) CLASS ACTION
HIDDEN LAKE ACADEMY, INC., )
et al., )
)
Defendants. )
-------------------------------------------------)
CERTIFICATION
Counsel for Plaintiffs hereby certifies that the text of this document has been
prepared with Times New Roman 14 point, one of the fonts and point selections
approved by the Court, and complies in all respects with Local Rule 5.1(C) of the
United States District Court, Northern District of Georgia.
This 8th day of January, 2009.
GORBY, PETERS, & ASSOCIATES,LLC
/s/Michael J. Gorby, Esq.
Michael J. Gorby, Esq.
mdavidoff@bm.net Lawrence J. Lederer, Esq.
lvines@bm.net Jonathan Stanwood, Esq.
danzinska@bm.net 1622 Locust Street
Philadelphia, Pennsylvania 19103
(215) 875-3000
(215) 875-4604 Fax
Attorneys for Plaintiffs and the Class
2
Case 2:06-cv-00146-WCO Document 96-3 Filed 01/08/2009 Page 3 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
---------------------------------------------------)
J.O.R. and R.O.R., et al., )
INDIVIDUALLY AND BEHALF OF )
OTHER)S SIMILARLY SITUATED,
)
Plaintiffs, ) CIVIL ACTION FILE NO.:
) 2:06-CV-0146-WCO
-v)
) CLASS ACTION
HIDDEN LAKE ACADEMY, INC., )
et al., )
)
Defendants. )
---------------------------------------------------)
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of PLAINTIFFS
MOTION AND INCORPORATED MEMORANDUM OF LAW OF THE
SETTLEMENT CLASS REPRESENTATIVES TO ENFORCE
SETTLEMENT AND JUDGMENT with the Clerk of Court using the CM/ECF
system which will automatically send email notification of such filing to the
following counsel of record:
Attorneys for Defendants Hidden Lake Academy, Inc., HLA, Inc.,
Hidden Lake Foundation, Inc., and Dr. Leonard Buccellato
Robert A. Barnaby, II, Esq.
mdavidoff@bm.net llederer@bm.net Mary Donne Peters, Esq.
Lane L. Vines, Esq.
lvines@bm.net (Georgia Bar No. 573595)
(Admitted Pro Hac Vice) Two Ravina Drive, Suite 1500
David Anziska, Esq. Atlanta, Georgia 30346-2106
mdavidoff@bm.net llederer@bm.net Mary Donne Peters, Esq.
Lane L. Vines, Esq.
lvines@bm.net (Georgia Bar No. 573595)
(Admitted Pro Hac Vice) Two Ravina Drive, Suite 1500
David Anziska, Esq. Atlanta, Georgia 30346-2106
danziska@bm.net Telephone: (404) 239-1150
1622 Locust Street Fax: (404) 239-1179
Philadelphia, Pennsylvania 19103
Telephone: (215) 875-3000
Fax: (215) 875-4604
Counsel for the Settlement Class Representatives and the Class
11
