Opinion
CIVIL NO. 1:CV-01-2159
September 3, 2003
ORDER
THE BACKGROUND OF THIS ORDERS IS AS FOLLOWS:
Defendant, Thurston Paul Bell ("Bell"), is presently before the court pursuant to the order dated August 14, 2003 (Doc. 128) to show cause why the court should not hold him in contempt for failure to comply with the orders dated January 10, 2003 (Doc. 91, ¶ 2) and July 15, 2003 (Doc. 120), and on plaintiff's motion for contempt (Doc. 133) for failure to comply with the court's order dated July 15, 2003 (Doc. 119). The court held a contempt hearing on September 3, 2003. For the following reasons, the court will grant the motions and hold Bell in civil contempt of court. I. Legal Standard for Civil Contempt
Bell failed to attend the contempt hearing in violation of this court's orders dated August 14, 2003 (Doc. 128) and August 26, 2003 (Doc. 141). At the contempt hearing, Bell was represented by counsel who entered an appearance "for the limited purpose of representing Defendant at the Hearing on the issue of Contempt." (Doc. 146).
"To prove civil contempt the court must find that (1) a valid court order existed, (2) the defendant had knowledge of the order, and (3) the defendant disobeyed the order." John T. ex rel. Paul T. v. Del. County Intermediate Unit. 318 F.3d 545, 552 (3d Cir. 2003) (quoting Harris v. City of Philadelphia. 47 F.3d 1311, 1326 (3d Cir. 1995)). The court must find the existence of each of the civil contempt elements by clear and convincing evidence. John T., 318 F.3d at 552. "Clear and convincing" evidence
produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts. . . .Travelhost. Inc. v. Blandford. 68 F.3d 958, 961 (5th Cir. 1995) (quotingCruzan by Cruzan v. Director. Mo. Dept. of Health. 497 U.S. 261. 285 n. 11 (1990)); see also NJ, Sports Prods., Inc. v. Don King Prods., Inc., 15 F. Supp.2d 546, 551 (D.N.J. 1998).
II. Findings of Fact Conclusions of Law
The court finds the following upon clear and convincing evidence. By order dated January 10, 2003, the court preliminarily enjoined Bell from selling or promoting his fallacious U.S. Sources argument. (Doc. 91). In pertinent part, the court ordered as follows:
Bell shall forthwith send a letter to:
a. All persons to whom he gave, sold, or distributed any materials espousing or related to the U.S. Sources argument;
b. All persons for whom Bell prepared or assisted in the preparation or drafting of any federal returns or tax-related documents; and
c. All persons who contacted Bell regarding the U.S. Sources argument (in paper, via telephone, or through electronic means);
and inform those persons of the entry of the court's findings concerning the falsity of Bell's representations, the falsity of the tax returns based in whole or in part on the U.S. Sources argument, the possibility of the imposition of frivolous-return penalties against them, the possibility that the United States may seek to recover any erroneous refund they may have received, and the fact that a preliminary injunction has been entered against Bell (and attach a copy of this Order to the letter); and Bell shall simultaneously serve copies of all such letters (without attachment) to counsel for the United States at the address listed on the docket of this matter. . . .
(Doc. 91, ¶ 2).
By order dated April 1, 2003 (Doc. 106), the court amended the last clause of the second paragraph of its January 10, 2003 preliminary injunction order to read:
and Bell shall simultaneously serve copies of all such letters (without attachment) under seal to the Clerk of Court of the United States District Court for the Middle District of Pennsylvania.
(Doc. 106, pg. 2) (emphasis in original).
By order dated July 15, 2003, the court vacated its order dated April 1, 2003 (Doc. 106), and reinstated the original text of paragraph two of the preliminary injunction order. (Doc. 120). By a separate order also dated July 15, 2003, the court granted plaintiff's motion to compel in part, and ordered Bell to "comply with the United States' discovery requests as set forth in the accompanying memorandum within fifteen (15) days of the date of this order." (Doc. 119). (See also Doc. 118, pp. 12-13 20).
It is undisputed that Bell has knowledge of the aforementioned orders. The court has held telephone conferences to discuss Bell's compliance with the preliminary injunction order. See, e.g., Minutes from January 16, 2003 telephone, conference (Doc. 92). Bell has also filed motions to stay and/or suspend both of the orders subjudice pending appeal. (See Docs. 93, 123, 125). Except to the extent that the court temporarily amended the preliminary injunction order, the court denied each of Bell's motions. (See Docs. 106, 126, 127).
At the contempt hearing, the United States informed the court that Bell has failed to produce a single letter pursuant to the second paragraph of the preliminary injunction order, and has yet to disclose the requested discovery documents. This much Bell admits; hence, clear and convincing evidence supports a conclusion that Bell knowingly disobeyed the aforementioned court orders.
Regarding the latter documents, the court notes with interest that Bell has failed even to retrieve his documents from the court subsequent to our in camera review.
AND NOW, this 3d day of September, 2003, Thurston Paul Bell is hereby ADJUDGED in civil contempt of this court for violating the orders dated January 10, 2003 (Doc. 91, ¶ 2) and July 15, 2003 (Docs. 119 120) and for failing to appear at the contempt hearing in violation of the orders of August 14, and August 26, 2003. (Docs. 128 141). In lieu of immediate incarceration, Bell shall be fined $200.00 for failing to appear at the hearing. In addition, Bell shall be fined $20.00 per diem until he establishes his compliance with the aforementioned orders. Bell shall pay this amount to the Clerk of Court of the Middle District of Pennsylvania. If Bell fails to achieve compliance within twenty (20) days, the court shall order the U.S. Marshal to take Bell into custody and to detain Bell until he establishes compliance with the court's orders in this case. The determination of the total amount of any fine shall include any term of incarceration necessitated by Bell's failure to achieve compliance within twenty (20) days.
The parties shall advise the court when Bell is in full compliance with the outstanding orders.