Mellott v. MSN Communications, Inc.

Filing 318

ORDER. On or before 5:00 PM on Friday, 11/4/2011, plaintiff's counsel, plaintiff, and Mr. Harmon shall jointly contact chambers to schedule a hearing on the 289 MOTION for Order to Set Hearing As To Status of Counsel for Contempt Proceedings. Plaintiff is ordered to be present at such hearing. On or before 5:00 PM on Monday, 11/7/2011, plaintiff shall file a response to the Motion for Order to Set Hearing As to Status of Counsel for Contempt Proceedings. By Judge Philip A. Brimmer on 10/31/11. (mnfsl, )

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

ORDER

This matter is before the Court on the Certification of Facts Pursuant to Remand
by Judge Brimmer and 28 U.S.C. § 636(e) (the “Certification”) [Docket No. 293] filed by
Magistrate Judge Michael J. Watanabe on June 21, 2011. A magistrate judge may
initiate contempt proceedings by “certify[ing] the facts to a district judge and . . .
serv[ing] or caus[ing] to be served, upon any person whose behavior is brought into
question under this paragraph, an order requiring such person to appear before a
district judge upon a day certain to show cause why that person should not be adjudged
in contempt by reason of the facts so certified.” 28 U.S.C. § 636(e)(6)(B) (“The district
judge shall thereupon hear the evidence as to the act or conduct complained of and, if it
is such as to warrant punishment, punish such person in the same manner and to the
same extent as for a contempt committed before a district judge.”). Pursuant to 28
U.S.C. § 636(e), Magistrate Judge Watanabe has certified facts that he believes
support initiation of both civil and criminal contempt proceedings against plaintiff.

Pursuant to Federal Rule of Criminal Procedure 42, which governs criminal
contempt proceedings,
[t]he court must give the person notice in open court, in an order to show
cause, or in an arrest order. The notice must:
(A) state the time and place of the trial;
(B) allow the defendant a reasonable time to prepare a defense; and
(C) state the essential facts constituting the charged criminal contempt and
describe it as such.
Fed. R. Crim. P. 42(a)(1). The Certification, see Docket No. 293 at 12 (recommending
that the Court “require Plaintiff Melissa Mellott to appear . . . to show cause why she
should not be adjudged in contempt, both civil and criminal”), and the present order
supply notice to plaintiff that criminal contempt proceedings have been initiated against
her. The “essential facts constituting the charged criminal contempt” are described in
the Certification [Docket No 293]. Furthermore, an “attorney for the government,” Mr.
Kenneth Harmon of the United States Attorney’s Office, has been appointed to
prosecute the contempt. Fed. R. Crim. P. 42(a)(2).1 In regard to the time and place of
the criminal contempt trial, the Court must resolve the government’s Motion for Order to
Set Hearing As to Status of Counsel for Contempt Proceedings [Docket No. 289] before
it can set the trial in this matter. To date, plaintiff has failed to respond to this motion.
For the foregoing reasons, it is
ORDERED that, on or before 5:00 p.m. on Friday, November 4, 2011, plaintiff’s
counsel, plaintiff, and Mr. Harmon shall jointly contact chambers to schedule a hearing
on the Motion for Order to Set Hearing As to Status of Counsel for Contempt
1

Plaintiff was notified in an Advisement of Contempt of certain rights, including
that the “maximum jail sentence upon a finding of contempt cannot exceed six months
unless [plaintiff has] been advised of the right to a jury trial.” Docket No. 237 at 1, ¶ 3.
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Proceedings [Docket No. 289]. Plaintiff is ordered to be present at such hearing. It is
further
ORDERED that, on or before 5:00 p.m. on Monday, November 7, 2011, plaintiff
shall file a response to the Motion for Order to Set Hearing As to Status of Counsel for
Contempt Proceedings [Docket No. 289]. It is further
ORDERED that the U.S. Marshals Service shall personally serve a copy of this
order upon plaintiff Melissa Mellott and the Clerk’s Office shall mail a copy of this order
to plaintiff at 899 Tarpan Place, Castle Rock, CO 80104.

DATED October 31, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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