Not only did the Judge deny the request for a stay, he totally slammed the request in the process:
Again, stolen from xrayviscion:
05/02/2008 321 ORDER denying 317 Motion for Extension of Time and Altomare remains obliged to surrender to the Marshal in this District on 5/2/08. Failure to appear will result in the issuance of a warrant for his arrest.. (Signed by Judge Gerard E. Lynch on 5/1/08) (cd) (Entered: 05/02/2008)
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OCR extract
04 Civ. 2322 (GEL)
ORDER
GERARD E. LYNCH, District Judge:
Defendant Richard Altomare moves "for an extension of time or stay of proceedings on any finding of contempt pending further evidentiary hearing on that issue." The motion will be denied.
The sorry history of this case is set forth at length in a series of prior opinions. See SEC v. Universal Express, Inc., 475 F. Supp. 2d 412, 415-21 (S.D.N.Y. 2007); SEC v. Universal Express, Inc., No. 04 Civ. 2322, 2007 WL 2469452, at *1-3 (S.D.N.Y. Aug. 31, 2007) ("Universal Express II"); SEC v. Universal Express, Inc., F. Supp. 2d 2008 WL 1790437, at *1 (S.D.N.Y. April 18, 2008) ("Universal Express III"). The present motion is occasioned by this Court's opinion and order of April 18, 2008, following an evidentiary hearing, finding Altomare in contempt of this Court's judgment of March 8, 2007, by reason of his failure to make reasonable efforts to comply with a disgorgement order. Universal Express III, 2008 WL 1790437, at *7. The Court's opinion of April 18 sets forth extensive fact findings regarding Altomare's complete failure to demonstrate inability to comply with the order. M. at *2-8.
Altomare appears to assume that the Court's order does not mean what it says. He begins by expressing "appreciat[ion]" for the Court's "apparently providing for an additional opportunity to produce documentation to show 'categorically and in detail' that any further payment is impossible." (D. Mem. 2.) That is not what the order provides. Rather, the Court expressly and unequivocally ordered that Altomare "surrender to the United States Marshal for the Southern District of New York on May 2, 2008, to be incarcerated until such time as he purges himself of the contempt, unless he has paid the disgorgement amount in full by that date." Universal Express III, 2008 WL 1790437, at *7. There is no mention of a further hearing. Rather, the passage quoted by Altomare provides, equally clearly, that Altomare is found to be in contempt, and that in order to compel his compliance with the Court's orders, he "will be incarcerated until he pays the disgorgement and prejudgment interest in full, or produces documentation to show categorically and in detail that any further payment is impossible." Id. at * 1. The Court does not contemplate further evidentiary hearings before making an adjudication of contempt, nor are further proceedings in this matter necessary. Rather, the Court has held extensive proceedings, and has provided Altomare with every opportunity to make the showing that he was directed to make at a prior hearing, and that he has so manifestly failed to make.
Like any civil contemnor, Altomare may purge himself of contempt, and win his release, by compliance with the Court's orders or by making a showing that he is unable to do so. But it is too late to stave off the adjudication or contempt, and the imposition of coercive sanctions.
Altomare appears to suggest that he received insufficient time to prepare for the evidentiary hearing, contending that the hearing was scheduled on January 18 and held on February 4. (D. Mem. 3.) This is a remarkable distortion of the record. In the first place,Altomare made no objection at the January 18 hearing to the date selected for the evidentiary hearing (see, e.g., 1/18/08 Tr. at 23-27),[1] nor did he seek an adjournment at the February 4 hearing, or suggest in any way that he was unprepared (see, e.g., 2/4/08 Tr. at 3-11).
[1] At that hearing, the Court noted "the history of this . . . proceeding has been that everything shows up the late afternoon the day before the hearing at which some hammer is supposed to come down." (1/18/08 Tr. at 22.)
In any event, such an argument would have been unavailing. Altomare has been in contempt of this Court's judgment since it was entered on April 2, 2007. In an extensive opinion filed on August 31, 2007, this Court determined that Altomare was in contempt not merely of the disgorgement order, but of the Court's injunction forbidding him from offering or selling unregistered securities in interstate commerce, participating in an offering of any equity security that has a price of less than five dollars, committing securities fraud, and acting as an officer or director of any issuer of registered securities. Universal Express II, 2007 WL 2469452, at *4-10. The only reason coercive sanctions were not imposed at that time with respect to his violation of these provisions was that the granting of the SEC's separate motion for the appointment of a receiver effectively put an end to Altomare's ability to engage in further violations of the injunction. The Court made clear at that time, more than five months in advance of the eventual February 4 hearing, that Altomare "[bore] the burden of producing evidence of [his] inability to comply with the Court's order requiring [him] to pay disgorgement and prejudgment interest." Id. at *9. The Court ordered Altomare to show cause on October 12, 2007, why he should not be held in contempt. Id. at *12. The Court then granted Altomare repeated extensions of time to comply or to prepare to make the requisite showing. As demonstrated in the Court's opinion of April 18, Altomare's failure either to comply or to demonstrate incapacity has been total.
Finally, Altomare submits a ten-paragraph affidavit that strikingly documents no additional efforts whatsoever at compliance. Nor does the brief affidavit even purport to constitute the required demonstration of inability to comply. At best, it expresses a promise at some future point to provide the documentation that Altomare has conspicuously failed, and indeed refused, to provide over more than a year since judgment was entered in this case. The time is well past for such futile gestures.
The submission of this motion, on the very eve of the ordered surrender, is completely inadequate to avoid the execution of the sanctions ordered by the Court. Altomare retains the ability to purge himself of contempt by complying with the Court's order. Moreover, as noted in the Court's April 18 opinion, the Court remains open to an application for release from contempt should Altomare provide full documentation of his economic circumstances demonstrating inability to comply. As of this time, however, he remains in contempt of the Court's order, and remains subject to the sanction of incarceration until such time as he purges that contempt.
Accordingly, the motion for an extension, stay, or further evidentiary hearing is denied. As directed in the Court's order of April 18, Altomare remains obliged to surrender to the Marshal in this District on May 2, 2008. Failure to appear will result in the issuance of a warrant for his arrest.
SO ORDERED.
Dated: New York, New York
May 1, 2008
GERARD E. LYNCH
United States District Judge
