Martinez-Garcia et al v. Perez, et al.
Filing
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ORDER of Instructions. Signed by Magistrate Judge G. R. Smith on 10/10/2013. (loh)
/
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
CIRILO MARTINEZ-GARCIA, et al.,
and others similarly situated,
Plaintiffs,
Case No. CV613-015
MARIA PEREZ and
DAHLIA GUERRERO,
Defendants.
is)
I) DI
The Mexican migrant worker plaintiffs who brought this Fair
Labor Standards Act case against two farm labor recruiters moved to
compel subpoena responses from one of them. Doc. 21. They showed
that pro se defendant Dahlia Guerrero has been evasive, obstructive, and
intransigent.
Id. at 1-3. Guerrero failed to respond. Their fully
supported motion thus was deemed unopposed by operation of L.R. 7.5
("Failure to respond within the applicable time period shall indicate that
there is no opposition to a motion."). On July 25, 2013, the Court
granted it and ordered Guerrero to respond and pay $500 in fees and
expenses to the plaintiffs. Doc. 22.
Guerrero has failed to comply, so the plaintiffs now move to hold
her in contempt. Doe. 25. They show that by U.S. mail and email they
served Guerrero with a copy of the July 25th Order. Also, their counsel
informed her of it over the telephone. Id. at 1. The Court's Clerk also
served her by U.S. mail. Doe. 22 (Staff notes). As of the August 29, 2013
filing date of plaintiffs' contempt motion, Guerrero still had not complied
(nor has she since responded to this motion, which thus is also
unopposed by operation of L.R. 7.5). Id. Nor has she since. Plaintiffs
insist that Guerrero is aware of the Order but is disobeying it. Id. at 2.
Hence, they request a $100/day sanction to coerce compliance, and they
point out that summary contempt (no hearing) is justified here. Id. at 23 (citing Mercer v. Mitchell, 908 F.2d 763, 769 n. 11 (11th Cir. 1990)).
"Every civil contempt proceeding is brought to enforce a court
order that requires the defendant to act in some defined manner."
Mercer, 908 F.2d at 768; United States v. Paranelli, 2011 WL 4073958 at
* 3 (N.D. Ga. June 14, 2011). But due process requires adequate notice
and a fair opportunity to be heard before a civil contempt citation issues.
Autotech Technologies LP v. Integral Research & Development Corp., 499
F.3d 737 9 747 (7th Cir. 2007). Yet, no hearing prior to a finding of civil
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contempt is needed "when there are no disputed factual matters that
require an evidentiary hearing." Mercer, 908 F.2d at 769 n.11; Lincoln
Nat. Life Ins. Co. v. Marchiol, 2013 WL 673990 at * 2 (D. Cob. Feb. 22,
2013); Maid of Mist Corp. v. Alcatraz Media, LLC, 2010 WL 1458955 at *
2 n. 1 (N.D. Ga. Mar. 10, 2010).
What is required, however, is clear and convincing evidence to show
that a contempt sanction is warranted. Riccard v. Prudential Ins. Co.,
307 F.3d 1277, 1296 (11th Cir. 2002) (a civil contempt finding requires
clear and convincing evidence establishing that a defendant willfully
disregarded a valid, clear and unambiguous court order despite his ability
to comply); FTC v. Leshin, 618 F.3d 1221, 1232 (11th Cir. 2010) (civil
contempt finding must be supported by clear and convincing evidence
that the allegedly violated order was valid and lawful, the order was clear
and unambiguous, and the alleged violator had the ability to comply with
the order; once this prima facie showing of a violation is made, the
burden then shifts to the alleged contemnor to produce evidence
explaining his noncompliance at a "show cause" hearing).' Also, the
In that regard:
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absence of willfulness is not a defense to a charge of civil contempt, as
this Court does not focus on subjective beliefs or intent in complying
with the order, but whether in fact the contemnor's conduct complied
with the order itself. Leshin, 618 F.3d at 1232-33.
The Court is wary of granting plaintiffs' motion just yet. Under
Fed. R. Civ. P. 4, the plaintiffs served Guerrero with their complaint at a
Vidalia, Georgia residence. Doc. 8. Someone accepted it on her behalf.
Id. at 2 (process server's statement: "I left the summons at the
individual's residence or usual place of abode with (name) Romeshia
A party does not have the right to merely disregard a court order based on his
or her subjective opinion as to the correctness of the order. See In re Novak,
932 F.2d 1397, 1400 (11th Cir.1991). "It is beyond question that a court may
use the remedy of a citation of contempt to enforce an earlier judgment."
Keegan v. Lawrence, 778 F.Supp. 523, 525-526 (S.D. Fla. 1991).
Although sanctions may be imposed to coerce compliance with a court order,
any sanctions imposed may neither be so excessive as to be punitive, nor more
than is necessary to ensure compliance. See Citronelle-Mobile Gathering, Inc.
v. Watkins, 943 F.2d 1297 1 1304 (11th Cir. 1991). Civil contempt sanctions
include a coercive daily fine, a compensatory fine, attorney's fees and expenses,
and coercive incarceration. See Citronelle-Mobile Gathering, Inc., 943 F.2d at
1304 (citations omitted).
Barash v. Kates, 2010 WL 1417816 at * 6 (S.D. Fla. Mar. 15, 2010). The Court may
also require payment of reasonable attorneys' fees incurred in seeking contempt.
See, e.g., Riccard, 307 F.3d at 1298 (recognizing that attorney's fees are properly
awardable in civil contempt proceedings).
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Muncie, a person of suitable age who resides there, on 2-14-13, and
mailed a copy to the individual's last known address. . . ."). She has
never answered or otherwise appeared, and default has since been
entered against her.' Doc. 16. That same "summons address" has been
used for service of subsequent filings under Fed. R. Civ. P. 5, including
the motion to compel and the instant motion, 3 see, e.g., doc. 24 at 4, as
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Inexplicably, plaintiffs have since failed to move for default judgment. See, e.g.,
Johnson v. Del Monte Fresh Produce N.A., Inc., 2013 WL 49448 *1 (S.D. Ga. Jan. 2,
2013) (judgment of default entered, following entry of default, upon motion).
Meanwhile, a defendant's default status generally disentitles her to service of further
pleadings. Fed. R. Civ. P. 5(a)(2) ("No service need be made on parties in default for
failure to appear."); Lincoln, 2013 WL 673990 at * 2. "But a pleading that asserts a
new claim must be served on that party under Rule 4." Rule 5(a)(2).
Hence, Rule 4-level service is required for new or additional claims. Id. Arguably
contempt qualifies as a new claim, which evidently is why the magistrate judge
directed re-service under Rule 4 in Lincoln. Lincoln, 2013 WL 673990 at * 2; but see
WRIGHT & MILLER, 4B FED. PRAC. & PRoc. Civ. § 1145 (3d ed. Apr. 2013) ("Direct
service as required by Rule 4 for process is not required by Rule 5(b) since a civil
contempt proceeding is an extension of the main action and personal jurisdiction
need not be reasserted under Rule 4.") (footnote omitted).
Although the Advisory Committee notes to Fed. R. Civ. P. 4.1 speak of notice with
respect to contempt of a "decree or injunction," and some may think "decree" means
an injunction (which was not issued in the instant case), the commentary is
instructive:
Service of process is not required to notify a party of a decree or injunction, or
of an order that the party show cause why that party should not be held in
contempt of such an order. With respect to a party who has once been served
with a summons, the service of the decree or injunction itself or of an order to
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well as for the one letter (doe. 24-2 at 2) plaintiffs used to send her the
July 25 Order, doe. 24-2 at 2. Plaintiffs also show that they have emailed
her. Doe. 24 at 1; doe. 24-1 at 2; doe. 24-2 at 3.
Yet, there is no mail-receipt or email-receipt confirmation of
service on the July 25th Order. The only proof that she received the
written communications from the Clerk and plaintiffs' counsel is a
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docket entry, a copy of a mailed letter, a copy of emails, and an uns worn
representation made in plaintiffs' brief: "Plaintiffs' counsel also spoke to
Respondent Guerrero on the phone informing her of the Court's Order
and urging her response." Doc. 24 at 1.
Arguably that's enough, but for something this consequential
(sanctions can include incarceration, see supra n. 1), the Court in its
discretion will require more. Within 11 days after this Order is served,
show cause can be made pursuant to Rule 5. Thus, for example, an injunction
may be served on a party through that person's attorney. The same is true for
an order to show cause.
Fed. R. Civ. P. 4.1 Advisory Committee Notes, quoted in United States u. Elmes, 532
F.3d 1138, 1144 (11th Cir. 2008). Guerrero is proceedingpro Se, so she may be served
directly (as opposed to through counsel) and, per Rule 5, by mail. However, even
though these notes serve as persuasive authority for "Rule 5" notice here,
nevertheless the Court is wary given the questions of notice discussed above.
counsel shall back up his telephone-notice representation with a
supporting affidavit or 28 U.S.C. § 1746 Declaration.
Meanwhile, the clerk shall also (by U.S. First class Mail) serve
Guerrero with a copy of this Order, plus a repeat-copy of the July 25th
Order, using that same "summons" address found in doc. 8 at 1; see also
doc. 24-2 at 2 (Aug. 9, 2013, L. Lotto letter to Guerrero using the same
address). The clerk shall also serve Guerrero by emailing her .pdf
copies of this and the July 25, 2013 Order -- using the same email
address found on doc. 24-1. Of course, nothing stops plaintiffs from
deploying more thorough service, including video-proof of service.
C1,
Thomas v. Durastanti, 607 F.3d 655, 659 (10th cir. 2010) (video may be
used to resolve summary judgment motions) (citing Scott v. Harris, 550
U.S. 372, 378-80 (2007)). Guerrero has 14 days from the date of the
Clerk's service to show cause why she should not be held in contempt.
She is free to request a hearing on that score, but will be held
accountable if she has no facts to dispute and used the hearing as a stall
tactic.
Guerrero also is warned not to ignore this Court's Orders. To
avoid contempt she must show that she did not willfully disobey this
VA
Court's July 25, 2013 Order (doe. 22) by failing to turn over the
information demanded by plaintiffs' discovery subpoena and also pay
them $500. To that end, the law does not demand futile action; if
Guerrero fails to respond to this Order, the Court will advise that
plaintiffs' contempt motion be granted without further process.
In that regard, the Court's inherent and contempt powers are
limited, see, e.g., Brown v. City of Upper Arlington, 637 F.3d 668, 67274 (6th Cir. 2011) (a magistrate judge, presiding in a civil consent case,
did not have the "inherent power" to sanction a party for contempt for
actions taken after the case had been dismissed), and within those
limits are further limits on the authority of magistrate judges, as noted
by L.R. 72.4(k) ("Exercise the contempt powers conferred by 28 U.S.C. §
636(c)."). 4 The undersigned's role is thus "not to issue an Order of
' Under the Federal Magistrates Act, 28 U.S.C. § 636(e), magistrate judges are
authorized to exercise contempt authority only in certain limited circumstances.
These include summary criminal contempt authority, which may be imposed by the
magistrate judge for misbehavior "in the magistrate judge's presence so as to obstruct
the administration of justice," 28 U.S.C. § 636(e)(2), as well as criminal contempt and
civil contempt authority in misdemeanor cases and cases where the magistrate judge
presides with the consent of the parties. 28 U.S.C. H 636(e)(3), (4). Otherwise, if one
has committed an act constituting a civil contempt in a proceeding before the
magistrate judge, a certification procedure is used whereby:
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contempt, but to determine whether the moving party can adduce
sufficient evidence to establish a prima facie case of contempt." Stream
Companies, Inc. v. Windward Advertising, 2013 WL 3761281 at *10
(E.D. Pa. July 17, 2013); Wallace v. Kmart Corp., 687 FM 86, 91-92 (3rd
Cir. 2012) (no power to issue a civil contempt order against plaintiffs'
attorney, where actions occurred outside magistrate judge's presence
and was not in proceeding where magistrate was presiding with parties'
consent).
So, once the undersigned is able to notify the district judge that
contempt has been committed, the matter will be deferred to him.
the magistrate judge shall forthwith certify the facts to a district judge and
may serve or cause 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. 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.
28 U.S.C. § 636(e)(6)(B)(iii). See Kiobel v. Milison, 592 F.3d 78, 89-90 (2nd Cir. 2010)
concurrence) ("Section 636(e)(6)(B) [(iii)] explicitly provides that, if the contumacious conduct
does not occur in the magistrate judge's presence, the issue must be referred to the district
judge.").
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Stream, 2013 WL 3761281 at *10; see also Odyssey Marine Exploration,
Inc. v. Unidentified Shipwrecked Vessel, 2013 WL 5408413 at * 13 (M.D.
Fla. Sept. 25, 2013) (imposing contempt sanctions based on magistrate
judge's report). Plaintiffs shall therefore tailor their further filings in
light of Fed. R. Civ. P. 72(a)'s referral procedure, as Guerrero will also be
free to exploit the due process afforded by that Rule's notice and
objection mechanism. See also Lincoln, 2013 WL 673990 at * 2-3 (where
magistrate judge ordered personal service of show-cause contempt order
but contemnor evaded service, district judge made evasion findings and
deemed her served, then directed her to show why she should not be held
in contempt for failing to respond to post-judgment discovery).
To summarize, the Court will reach plaintiffs' contempt motion
(doe. 14) after their further showing as directed above. The Clerk is
DIRECTED to use the special service procedures set forth supra.
SO ORDERED, this Zday of October, 2013.
UNITD STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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