United States District Court, D. Nevada
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
LEAVE TO WITHDRAW MONTHLY EXPENSES FROM THE FANE TRUST (ECF
P. GORDON UNITED STATES DISTRICT JUDGE.
Francine Magliarditi moves to withdraw over $40, 000 per
month to pay expenses. She also seeks a one-time distribution
to pay over $109, 000 in attorney's fees for both her own
counsel and for her husband Dominic's counsel. She filed
a breakdown of her requests in an in camera
submission to the court. The plaintiffs oppose, arguing there
is no support for the requested distributions, and over $40,
000 per month is unreasonable on its face.
previously indicated in the preliminary injunction order that
Francine could move to withdraw funds "for specific
purposes upon a showing of good cause." ECF No. 109 at
17. I have discretion to modify the preliminary injunction to
release funds to Francine to pay living expenses. See
S.E.C. v. Dowdell, 175 F.Supp.2d 850, 854 (W.D. Va.
2001) (stating if courts have the power to freeze assets they
logically have the "corollary authority" to release
funds for living expenses) (quoting S.E.C. v. Diicland
Gonzalez de Castilla, 170 F.Supp.2d 427, 429 (S.D.N.Y.
2001)). To determine whether to release funds, I weigh
Francine's interest in having funds for "ordinary
and necessary living expenses" against the
plaintiffs' interest in preventing the dissipation of
assets. See S.E.C. v. Dobbins, No. 3:04-CV-0605-H,
2004 WL 957715, at *3 (N7D7Tex. Apr. 14, 2004). In making
this evaluation, I consider whether Francine has access to
other sources of funds and whether the requested
distributions are for luxury items rather than necessities.
Duclaud Gonzalez de Castilla, 170 F.Supp.2d at 430.
I address below the various categories of requested
a monthly distribution of $1, 000 per month to pay rent on
the 9501 Canyon Mesa property in Las Vegas so that Francine
has a place to live. However, Francine provides no reason why
she requires $6, 400 per month for another home in
California. Although she denies that home is a vacation home
(ECF No. 144 at 6-7), she provides no explanation for why she
needs it given that she resides in Las Vegas. Based on the
lease Francine provided, the California home is a
month-to-month rental, and thus she will not suffer severe
financial hardship by cancelling it. See Francine
Magliarditi's In Camera Submission of Monthly
Budget Items for July 2017, Ex. A. I therefore deny the
request for monthly rent for the California property.
I have denied rent for the California property, I also deny
the related utility expenses. As for the Nevada property,
Francine requests $58 for her gas bill and $300 for her
energy bill. I allow monthly distributions for these bills,
but only for the exact amount of the bills. As the weather
changes, Francine's gas bill may go up while her energy
bill (which is $256, not $300) may go down. Consequently, I
currently approve $58 to pay the gas bill and $256.39 to pay
for the energy bill for the 9501 Canyon Mesa property. Future
bills will need to be submitted for approval in the amount
requests $3, 500 per month for food. That amount is
unreasonable on its face. Per the U.S. Bureau of Labor
Statistics for 2015 (the last available year), a family of
2.5 persons spent an average of $7, 023 per year on food.
Francine offers no explanation why each month she needs half
the amount that an average family spends on food for an
entire year. She offers no evidentiary support for this
request. I will allow a quarter of the annual average amount
($1, 755.75) for food for the the remainder of 2017.
asks for $1, 000 per month for "miscellaneous"
expenses. She provides no explanation as to what might fall
into this category nor offers any evidence in support. This
request is unreasonable on its face. I therefore deny it.
requests $633.08 per month for lease of a Mercedes Benz. She
also requests $91.41 to pay for insurance on the Mercedes
Benz. She seeks to pay insurance on three other vehicles,
although she provides no explanation for who owns the
vehicles or why she is paying the insurance. Finally, she
requests $400 per month in gas.
the $633.08 per month for the lease of the Mercedes Benz. Per
the lease contract Francine provided, she may suffer a
substantial penalty if the lease is terminated early. See
In Camera Submission, Ex. H. Additionally, I grant
$91.41 to pay the insurance on the Mercedes Benz.
Id., Ex. I at 2 (6-month premium of $548.51).
the request to pay insurance on the other vehicles. There is
no explanation for why insurance for a Mazda, a Toyota, and a
Saturn are necessary living expenses for Francine.
I allow $175 per month for gas. Per the U.S. Bureau of Labor
Statistics for 2015 (the last available year), the average
family spent $2, 090 per year for gas and motor oil. Francine
has not presented evidence that her driving needs exceed that
of an average family.
the request to pay for health insurance for Francine, her
husband Dominic, and their adult child Alexandra. However,
the evidence provided does not show what period the premium
amount of $1, 132.55 covers. Upon proof that this amount is
the monthly premium, it will be approved for a monthly
distribution. If this is a semi-annual payment, I will
approve a lump sum distribution.