Opinion
No. MISC.S-01-0219 DFL DAD.
November 18, 2005
ORDER
This matter came before the court on November 18, 2005, for hearing on plaintiff's motion for civil contempt sanctions due to defendants' failure to appear at a judgment debtor examination as ordered by the court. Kelly S. Kern appeared on behalf of plaintiff. Nathaniel D. Potratz appeared on behalf of defendants. After considering all written materials submitted with respect to the motion, and after hearing oral argument, for the reasons discussed on the record and set forth below, the court will continue the date of the examinations sought by plaintiff to afford defendants a final opportunity to fully comply with the court's orders.
PROCEDURAL BACKGROUND
Plaintiff initiated this action by filing a certification of judgment received from the United States Bankruptcy Court for the District of Montana. Pursuant to plaintiff's request, defendants Kenneth Richard Pruett and Susan Michelle Pruett were ordered in writing to appear for a judgment debtor examination on September 30, 2005, in Courtroom no. 27, the department of the undersigned magistrate judge. Defendants failed to appear as ordered. Rather, counsel for defendants appeared and represented to opposing counsel and the courtroom deputy of the undersigned that defendants were on a pre-paid vacation in Europe. At that time the court, through its courtroom deputy, directed the parties to reach a mutually agreeable date to re-schedule the examinations. This motion for civil contempt sanctions followed due to counsel for plaintiff's suspicion that defendants in fact were not on vacation as represented, a suspicion which, according to plaintiff, was confirmed by a private investigator who photographed Mr. Pruett outside of his home on October 13, 2005.
Defendants assert they returned from Europe on October 11, 2005.
Plaintiff filed the instant motion on October 18, 2005. Defendants filed their opposition through counsel on November 1, 2005. Plaintiff's reply was filed on November 10, 2005. Plaintiff and defendants also appeared through counsel at the hearing. Accordingly, the record indicates that all parties have been provided with notice of these contempt proceedings.
In their opposition defendants argue that this court lacks jurisdiction to adjudge them in contempt, plaintiff having failed to personally serve defendants with the contempt motion. In this regard, counsel for defendants relies on statutory provisions and case law governing contempt proceedings in California state courts. This reliance is misplaced. As the applicable legal standards set forth below make clear, this is proceeding under this federal court's inherent power to enforce compliance with its lawful orders through civil contempt. Service of plaintiff's motion by mail upon defendants' counsel is fully effective. See Fed.R.Civ.P. 5(b); L.R. 5-135(f).
LEGAL STANDARDS
"'[C]ourts have inherent power to enforce compliance with their lawful orders through civil contempt.'" Spallone v. United States, 493 U.S. 265, 276 (1990) (citation omitted); see also United States v. United Mine Workers of America, 330 U.S. 258, 303-304 (1947); United States v. Ayres, 166 F.3d 991, 994 (9th Cir. 1999). A civil contempt sanction such as the one sought here is coercive, designed to force the contemnor to comply with an order of the court and must include a "purge" condition. Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 207-08 (1999); Ayres, 166 F.3d at 997; Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992). To support a judgment of contempt, the district court must find, based on clear and convincing evidence, that the party violated the order; the violation did not constitute "substantial compliance" with the order; and the violation was not based on a good faith and reasonable interpretation of the order. Ayres, 166 F.3d at 994;In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)."Because civil contempt sanctions are viewed as nonpunitive and avoidable, fewer procedural protections for such sanctions have been required." Ayres, 166 F.3d at 995 (quoting International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 831 (1994). Civil contempt "may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required."Id. (quoting Bagwell, 512 U.S. at 827). See also Thomas, Head and Greisen Employees Trust v. Buster, 95 F.3d 1449, 1458 (9th Cir. 1996) (rejecting argument that evidentiary hearing is required so that alleged contemnor may explain why court should not make contempt finding).
A challenge to the validity of the order the contemnor is alleged to have violated cannot excuse a failure to comply with that order. "It is a 'long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.'" Ayres, 166 F.3d at 995 (quoting United States v. Rylander, 460 U.S. 752, 756-57 (1983)).
ANALYSIS
Plaintiff seeks an order adjudging defendants Kenneth Richard Pruett and Susan Michelle Pruett in civil contempt for their failure to comply with this court's orders directing each of them to appear for a judgment debtor examination on September 30, 2005. (See Orders filed August 22, 2005, Doc. nos. 17 (Kenneth Richard Pruett) 18 (Susan Michelle Pruett).) As set forth above, defendants failed to appear at their September 30, 2005, examinations. This fact is undisputed. There also is no evidence of "substantial compliance" with the court's order, In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d at 695; "a present inability to comply," Ayres, 166 F.3d at 994; or any other defense against a finding of contempt, and defendants asserts no such defense. Accordingly, clear and convincing evidence demonstrates that defendants have violated the court's August 22, 2005, orders.
As noted above (see fn. 1, supra), defendants' assertion of lack of notice is misplaced. Defendants' contention that plaintiff has failed to prove "willful disobedience" of the court's orders "beyond a reasonable doubt" also misapprehends the nature of plaintiff's motion.
Nonetheless, giving defendants the benefit of the doubt regarding their vacation plans and their assumption that their attorney had secured a continuance of the September 30, 2005 examinations, and considering that defendants are now represented by counsel, the court will afford defendants one final opportunity to appear for examination as directed by this court's orders filed August 22, 2005. In this regard, defendants will be ordered to appear for their examinations on December 2, 2005, at 10:00 a.m. If defendants do not appear as ordered, it is the court's intention to forthwith certify the facts to the assigned district and direct defendants immediately to appear before the district judge on the next available calendar to show cause why they should not be adjudged in civil contempt and incarcerated as a coercive sanction until full compliance with the court's orders is achieved. See 28 U.S.C. 636(e)(6)(B)(iii); Jones v. J.C. Penney's Dept. Stores, Inc., 228 F.R.D. 190, 198 (W.D.N.Y. 2005).
"[I]n determining how large a coercive sanction should be the court should consider the 'character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction.'" General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986) (quoting United Mine Workers, 330 U.S. at 304). In this regard, the court recognizes that defendants' failure to comply with the court's orders allegedly is due to a simple miscommunication between defendants, their counsel and plaintiff's counsel. Also, until recently defendants have been proceeding pro se and they did not flout the court's orders completely, at least appearing through counsel on September 30, 2005. Nonetheless, defendants have failed to comply with orders of this court issued nearly three months ago and may have made inconsistent representations to opposing counsel with respect to their failure to comply. Accordingly, the court finds that incarcerating defendants, in the event they do not appear as directed, is appropriate and likely to effectuate compliance with the court's orders. See S.E.C. v. Elmas Trading Corp., 824 F.2d 732 (9th Cir. 1987) (holding district court did not abuse its discretion in adjudging party in civil contempt and ordering him incarcerated until required documents produced).
The court has considered recommending the imposition of monetary sanctions against defendants for each day they continue to fail to comply with the August 22, 2005, orders as well as sanctions to cover the expenses incurred by plaintiff in bringing this motion. However, in the court's judgment such a coercive sanction is not likely to effectuate compliance with the court's orders.
CONCLUSION
Accordingly, for the reasons set forth above IT IS HEREBY ORDERED that:1. Plaintiff's motion for contempt sanctions is denied without prejudice;
2. Defendants will be afforded a final opportunity to comply with this court's orders filed August 22, 2005. In this regard, defendants Kenneth Richard Pruett and Susan Michelle Pruett are order to personally appear for their judgment debtor examinations on December 2, 2005, at 10:00 a.m. in Courtroom no. 27; and
3. If defendants do not appear as ordered, it is the court's intention to forthwith certify the facts to the assigned district and direct defendants immediately to appear before the district judge on the next available calendar to show cause why they should not be adjudged in civil contempt and incarcerated as a coercive sanction until full compliance with the court's orders is achieved.