Gillum v. Baxton et al

Filing 145

MEMORANDUM AND ORDER, The Court DENIES without prejudice Baxton's motion for contempt (Doc. 120 ); GRANTS in part and DENIES in part Baxton's supplemental motion for contempt and to exclude evidence (Doc. 133 ). The motion is GRANTED to the extent it seeks to exclude the testimony of Roddrick Lewis in this case. The motion is DENIED without prejudice to the extent it seeks to hold Lewis in contempt; and ADOPTS the Certification of Facts Constituting Civil Contempt but DECLINES to hold Lewis in contempt. Signed by Judge J. Phil Gilbert on 1/21/2016. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CORTEZ D. GILLUM,
Plaintiff,
v.

Case No. 12-cv-626-JPG-PMF

MICHAEL BAXTON, JR. et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Michael Baxton Jr.’s motions for
contempt against Roddrick Lewis for failure to appear at his deposition and to exclude Lewis’
testimony (Docs. 120 & 133), and Magistrate Judge Philip M. Frazier’s Certification of Facts
Constituting Civil Contempt (Doc. 137). The Certification found that Lewis had failed to obey a
deposition subpoena and had failed to obey a Court order directing him to attend a deposition.
The Court held a hearing on the matter on January 14, 2016, which Lewis was ordered to attend
and show cause why he should not be held in contempt of court. He failed to appear.
“A contempt order is considered civil if the sanctions imposed are designed primarily to
coerce the contemnor into complying with the court’s demands. . . .” In re Grand Jury
Proceedings, 280 F.3d 1103, 1107 (7th Cir. 2002). A party can be held in civil contempt if the
party seeking contempt proves (1) there was a decree from the Court (including a subpoena) that
set forth in specific detail an unequivocal command, (2) there is clear and convincing evidence that
the decree was violated, (3) the violation was significant in that it was not substantial compliance,
and (4) the violator has not been reasonably diligent and energetic in attempting to accomplish
what was ordered. Lightspeed Media Corp. v. Smith, 761 F.3d 699, 711 (7th Cir. 2014); Stotler &
Co. v. Able, 870 F.2d 1158, 1163 (7th Cir. 1989). However, due process requires that before

holding someone in contempt, he must be offered an opportunity to give an “adequate excuse”
why he failed to comply with the order. United States Sec. & Exchange Comm’n v. Hyatt, 621
F.3d 687, 694 (7th Cir. 2010).
The facts, as found by Magistrate Judge Frazier, demonstrate by clear and convincing
evidence that Lewis twice significantly violated a specific and unequivocal command to attend a
deposition. Lewis was afforded on January 14, 2016, an opportunity to provide an adequate
excuse why he failed to comply, but he failed to avail himself of that opportunity. Although the
Court believes it would be justified, based on the evidence in the file, in finding Lewis in contempt
of court, the Court is hesitant to do so without actually hearing from Lewis. Instead, the Court
finds exclusion of his testimony is an appropriate course of action. Accordingly, the Court will
disregard Lewis’ affidavit submitted as evidence in this case. Should plaintiff Cortez Gillum
wish to call Lewis as a witness at trial, he may ask the Court to reopen discovery for the limited
purpose of deposing Lewis before the final pretrial conference.
For the foregoing reasons, the Court:


DENIES without prejudice Baxton’s motion for contempt (Doc. 120);



GRANTS in part and DENIES in part Baxton’s supplemental motion for contempt and
to exclude evidence (Doc. 133). The motion is GRANTED to the extent it seeks to
exclude the testimony of Roddrick Lewis in this case. The motion is DENIED without
prejudice to the extent it seeks to hold Lewis in contempt; and



ADOPTS the Certification of Facts Constituting Civil Contempt but DECLINES to hold
Lewis in contempt.

IT IS SO ORDERED.
DATED: January 21, 2016
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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