Mellott v. MSN Communications, Inc.

Filing 257

ORDER granting 252 [Defendant's] Motion Seeking Leave for Wheeler Trigg O'Donnell LLP to Withdraw from Prosecution of Contempt Citation. Defendant's Attorney Julie W. Walker is withdrawn as the Special Prosecutor for the pending Cont empt Citations and Orders to Show Cause. This court appoints as Special Prosecutor United States Attorney for the District of Colorado John Walsh or one of Mr. Walsh's duly authorized designated Assistant United States Attorneys. A copy of this order shall be served upon United States Attorney for the District of Colorado John Walsh by the Clerk of Court. Each party shall pay their own attorney fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 4/28/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02418-PAB-MJW
MELISSA MELLOTT,
Plaintiff,
v.
MSN COMMUNICATIONS, INC.,
Defendant.

ORDER REGARDING
[DEFENDANT’S] Motion Seeking Leave for Wheeler Trigg O’Donnell LLP to
Withdraw from Prosecution of Contempt Citation
(Docket no. 252)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on [Defendant’s] Motion Seeking Leave for
Wheeler Trigg O’Donnell LLP to Withdraw from Prosecution of Contempt Citation
(docket no. 252). The Plaintiff did not file any timely response to the subject motion
(docket no. 252). The court has reviewed the subject motion (docket no. 252). In
addition, the court has taken judicial notice of the court file and has considered
applicable Federal Rules of Civil Procedure and case law. The court now being fully
informed makes the following findings of fact, conclusions of law, and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

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2.

That venue is proper in the state and district of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Plaintiff Mellott has not filed any timely response to the subject
motion (docket no. 252) and has confessed this motion;

5.

That Magistrate Judge Watanabe never ORDERED the law firm of
Wheeler Trigg O’Donnell, LLP, to prosecute the pending contempt
citations. Instead, Magistrate Judge Watanabe ORDERED
Defendant’s Attorney Julie M. Walker to prosecute the pending
contempt citations. [Magistrate Judge Watanabe informed Ms.
Walker that she was the person who shall prosecute the pending
contempt citations against Plaintiff Mellott on the record in open
court on March 21, 2011]. See minutes and listen to the digital
record of the Show Cause Hearing held before Magistrate Judge on
March 21, 2011 (docket no. 236). Also, see written Advisement of
Rights (docket no. 237);

6.

That during the Show Cause Hearing on March 21, 2011, Plaintiff
Mellott, following Magistrate Judge Watanabe oral and written
Advisement on Contempt, requested that another judge (i.e.,
someone either than Magistrate Judge Watanabe who initiated the
pending contempt citations) hear the pending contempt citations
against her. Magistrate Judge Watanabe granted that request [oral
motion], and District Judge Phillip A. Brimmer has set the Contempt

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Hearing on the pending contempt citations and orders to show
cause (docket nos. 131, 150, and 205 as amended in docket no.
209) on June 15, 2011, at 1:30 p.m. See docket no. 239;
7.

That courts have the inherent authority to initiate contempt
proceedings for disobedience of court orders which necessarily
includes the ability to appoint a private attorney to prosecute
contempt. The court’s authority to initiate contempt prosecution is
not limited to summary punishment of in-court contempt but
extends to out-of-court contempts as well, and thus the court may
appoint a special attorney to prosecute out-of court contempts.
Although Fed. R. Crim P. 42(b) does not authorize the appointment
of private attorneys, its reference to such appointments
acknowledges the long-settled rule that courts possess inherent
authority to initiate contempt proceedings for disobedience to their
orders, which authority necessarily includes the ability to appoint a
private attorney to prosecute the contempt. The contention that
only the United States Attorney’s Office may bring a contempt
prosecution is unavailing, since the Judiciary must have an
independent means to vindicate its own authority without
dependence on Executive Branch of Government to decide
whether contempt proceedings should be initiated.

While contempt proceedings are sufficiently criminal in nature to

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warrant the imposition of many procedural protections, their
fundamental purpose is to preserve respect for the judicial system
itself. The distinction between in-court and out-of-court contempt
has been drawn not to define when a court has or does not have
authority to initiate a prosecution for contempt, but for the purpose
of prescribing what [due process] procedures must attend such
exercise of such authority. However, a party that is a beneficiary of
a court order may not be appointed as prosecutor in a contempt
proceeding alleging violation(s) of a court order, even if the charged
contempt is not serious contempt involving a sentence exceeding
six months. A private attorney appointed to prosecute a criminal
contempt should be as disinterested as a public prosecutor, since
such attorney is appointed solely to pursue the public interest in
vindication of the court’s authority. See Young v. United States ex
rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), and United States
Attorney’s Manual, Title 9, Criminal Resource Manual 768; and
8.

That Defendant MSN has multiple requests for attorney fees
pending in this case. See docket nos. 85, 104, 182, 198, 200, 201,
203, and 234. These requests are all pending before this court. In
addition, on March 28, 2011, Plaintiff Mellott filed a Motion for
Sanctions against Defendant and Its Attorneys for Materially
Deceiving the Court (docket no. 248). This motion is pending
before this court. Here, I find, that in the interest of justice and

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consistent with Young v. United States ex rel. Vuitton et Fils S.A.
481 U.S. 787 (1987), and United States Attorney’s Manual, Title 9,
Criminal Resource Manual 768, that Defendant’s Attorney Julie W.
Walker should be removed as Special Prosecutor for the pending
Contempt Citations and Orders to Show Cause (docket nos. 131,
150, and 205 as amended in docket no. 209).
ORDER
WHEREFORE, based upon these finding of fact and conclusion of law this court
ORDERS:
1.

That [Defendant’s] Motion Seeking Leave for Wheeler Trigg
O’Donnell LLP to Withdraw from Prosecution of Contempt Citation
(docket no. 252) is GRANTED as follows. Defendant’s Attorney
Julie W. Walker is WITHDRAWN as the Special Prosecutor for the
pending Contempt Citations and Orders to Show Cause (docket
nos. 131, 150, and 205 as amended in docket no. 209). This court
appoints as Special Prosecutor, consistent with Young v. United
States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), and United
States Attorney’s Manual, Title 9, Criminal Resource Manual 768,
for the pending Contempt Citations and Orders to Show Cause
(docket nos. 131, 150, and 205 as amended in docket no. 209),
United States Attorney for the District of Colorado John Walsh or
one of Mr. Walsh’s duly authorized designated Assistant United

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States Attorneys;
2.

That this case is set for a Contempt Hearing before Judge Phillip A.
Brimmer on June 15, 2011, at 1:30 p.m.;

3.

That a copy of this ORDER shall be served upon United States
Attorney for the District of Colorado John Walsh by the Clerk of
Court; and

4.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 28th day of April 2011.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE