S.A.R.L Aquatonic Laboratoires PBE v. Marie Katelle, Inc.

Filing 93

ORDER denying Plaintiff's supplement to petition for order to show cause 82 . This is without prejudice to plaintiff's right to properly serve Mr. Le Blond and initiate contempt proceedings against him. IT IS FURTHER ORDERED granting 80 Mr. Gildar's Motion to Withdraw as Attorney for defendant Marie Katelle, Inc., Attorney Joel A Gildar terminated. Signed by Judge Frederick J Martone on 10/7/08.(LSP)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WO

NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

S.A.R.L. Aquatonic Laboratories PBE, a ) ) French corporation, ) ) Plaintiff, ) ) vs. ) ) ) Marie Katelle, Inc., an Arizona ) corporation, ) ) Defendant. )

No. CV-06-0640-PHX-FJM ORDER

The court has before it plaintiff's supplement to petition for order to show cause regarding contempt (doc. 82) and defendant's response (doc. 84). We also have before us Joel A. Gildar's motion to withdraw as counsel for defendant (doc. 80), plaintiff's response (doc. 81), and Mr. Gildar's reply (doc. 83). On February 13, 2008, plaintiff sought an order compelling defendant to attend a hearing to show cause why it should not be held in contempt for failing to comply with a subpoena duces tecum and notice of deposition. Plaintiff's Petition at 1. The order was granted and a hearing was held on June 27, 2008. Minute Entry (doc. 79). At the hearing, we found the defendant in contempt under rule 45(e) and granted leave for the plaintiff to seek supplemental relief for the defendant's contempt. We also denied Mr. Gildar's oral motion to withdraw as counsel. Plaintiff now requests that we hold Jean-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Carlo Sitzia Le Blond, president and CEO of Marie Katelle, Inc., in contempt, and Mr. Gildar again moves to withdraw. Plaintiff claims that Mr. Le Blond may be held in contempt for the defendant's failure to comply with the court's order because he had knowledge of the order and aided or abetted defendant's contempt. See U.S. v. Laurins, 857 F.2d 529, 535 (9th Cir. 1988); N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 618 (9th Cir. 1973). Before we may hold Mr. Le Blond in contempt, however, we must have personal jurisdiction over him. In re Estate of Ferdinand Marcos Human Rights Litigation, 94 F.3d 539, 545 (9th Cir. 1996) ("`[W]hen it is sought to charge a person with contempt who was not a party to the original action and thus not already within the jurisdiction of the court, that party must be served with process as in any other civil action.'") (citation omitted). Because Mr. Le Blond is not a party to this action, holding him in contempt is not proper at this time. The remaining issue is Mr. Gildar's motion to withdraw as counsel for the defendant. Because a corporation may appear only through a licensed attorney, Mr. Gidar is in the unenviable position of continuing as counsel for a non-responsive client through post-judgment proceedings. We will grant Mr. Gildar's motion to withdraw and order that all further papers be served on defendant's statutory agent. We also refer defendant's continued contempt to the Arizona Attorney General. The Attorney General is authorized to bring a petition in state court for the dissolution of a corporation where the corporation "continue[s] to exceed or abuse the authority conferred on it by law." A.R.S. § 10-1430(A)(1). It is our view that defendant has continued to abuse the privilege of corporate status by failing to comply with the court's order. Accordingly, IT IS HEREBY ORDERED DENYING plaintiff's supplement to petition for order to show cause (doc. 82). This is without prejudice to plaintiff's right to properly serve Mr. Le Blond and initiate contempt proceedings against him.

-2-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS FURTHER ORDERED GRANTING Mr. Gildar's motion to withdraw as counsel for defendant Marie Katelle, Inc. (doc. 80). All further notice to the defendant shall be to its statutory agent at: CT Corporation System, 2394 East Camelback Road, Phoenix, AZ 85016. DATED this 7th day of October, 2008.

cc: Office of the Attorney General Civil Section

-3-