HEARTS WITH HAITI INC et al v. KENDRICK

Filing 241

ORDER denying without prejudice 220 Fourth Motion for Contempt and Sanctions; denying without prejudice 141 Third Motion for Contempt Sanctions; denying without prejudice 155 Second Motion for Contempt and Sanctions By MAGISTRATE JUDGE JOHN H. RICH III. (jgw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

HEARTS WITH HAITI, INC., and
MICHAEL GEILENFELD,

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Plaintiffs
v.
PAUL KENDRICK,
Defendant

No. 2:13-cv-39-JAW

ORDER ON MOTIONS FOR SANCTIONS
Before the court are three motions for sanctions filed by the plaintiffs, Plaintiffs’ Second
Motion for Contempt and Sanctions Against Defendant for Repeated Violation of the Court’s
Orders (“Second Motion”) (ECF No. 155), Plaintiffs’ Third Motion for Contempt and Sanctions
Against Defendant for Repeated Violation of the Court’s Orders (“Third Motion”) (ECF No. 141),
and Plaintiff’s Fourth Motion for Contempt and Sanctions Against Defendant for Additional
Violations of the Court’s Orders (“Fourth Motion”) (ECF No. 220). I deny the motions for
sanctions without prejudice to their reassertion at the appropriate time. Presently, the trial of this
case is scheduled to commence in October 2014.
I.

Discussion

The plaintiffs’ second motion for contempt and sanctions is based on the alleged use of
confidential information obtained through discovery “to orchestrate a surprise, heavily armed
Haitian police force ‘raid’ on the orphanage in Port-au-Prince during the period of the time that
the parties and their counsel were actually in Haiti to conduct depositions[.]” Second Motion at 1.
In addition, the plaintiffs allege, the defendant used confidential information to “harass witnesses
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noticed on Plaintiffs’ side, including by bombarding third-party employer representatives of the
witness with accusatory emails, or posting discovery information on YouTube or Facebook.” Id.
at 1-2. They also contend that the defendant engaged in “outrageous and unacceptable” behavior
during the depositions. Id. at 5.
The plaintiffs’ third motion for contempt and sanctions arises out of the defendant’s alleged
use of portions of a report designated confidential and inadvertently disclosed to him by his
attorneys in an email “to hundreds of third-party recipients in an effort to further defame and harass
Plaintiffs[] and their supporters.” Third Motion at 2.
The plaintiffs’ fourth motion for contempt and sanctions arises out of the erroneous filing
on the public docket by counsel for the defendant of excerpts of confidential discovery deposition
transcripts. Fourth Motion at 2-3. Before the error was corrected, the defendant obtained copies
of the publicly filed excerpts and mailed them to “hundreds of Plaintiffs’ benefactors” as well as
publishing them on his public website. Id. at 3.
As sanctions, the plaintiffs ask, inter alia, for reimbursement of their costs of the
depositions, travel, lodging, and attorney fees for preparation for and participation in the
depositions held in Haiti, Second Motion at 2; for monetary sanctions against the defendant in
addition to that which the court has already imposed, id., Third Motion at 4; Fourth Motion at 5;
an order barring the defendant from contesting his liability for the claims made against him in this
action or from advancing affirmative defenses at trial, Second Motion at 2, Third Motion at 4,
Fourth Motion at 5; costs incurred in preparing and presenting all three motions, Third Motion at
4; a finding of contempt against the defendant, id., Fourth Motion at 5.; and entry of default
judgment against the defendant, Fourth Motion at 5.

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The defendant responds that many of the plaintiffs’ factual allegations are false.
Defendant’s Unredacted Opposition to Plaintiffs’ Second Motion for Contempt and sanctions
Against Defendant (ECF No. 160) at 1-2.1 He apparently contends that much of the alleged
conduct in violation of this court’s orders was that of one Cyrus Sibert, responsibility for which
the defendant’s attorneys and the defendant disclaim any responsibility. Id. at 2, 5. The plaintiffs
allege that Sibert is the defendant’s agent. Plaintiffs’ Reply in Support of Their Second Motion
for Contempt and Sanctions Against Defendant for Repeated Violation of the Court’s Orders (ECF
No. 164) at 7.
As to the third motion, the defendant responds that he “was motivated by a good faith belief
that the document in questions evidences dangers posed to vulnerable young Haitian orphans living
at the orphanage.” Defendant’s Unredacted Opposition to Plaintiffs’ Third Motion for Contempt
and Sanctions Against Defendant (ECF No. 169) at 2. He characterizes this statement as
something other than “justification for any dissemination of any document the Plaintiffs have
designated as confidential.” Id.
In his response to the fourth motion, the defendant points out that “the Plaintiffs themselves
made available to the public important excerpts from [a deposition that they had designated
confidential in] their opposition to [the defendant’s] motion for partial summary judgment.
Defendant’s Objection to “Plaintiffs’ Fourth Motion for Contempt and Sanctions Against
Defendant for Additional Violations of the Court’s Orders” (ECF No. 223) at 4 (emphasis in
original). The defendant’s attorney states that he did not file any excerpts on the public docket
erroneously; he simply followed the “lead” of the plaintiffs’ attorneys in this regard. Id. at 6. The

The defendant’s opposition has been filed under seal, but the plaintiffs’ reply was not, and, in any event, the
information contained herein has not been treated as confidential.
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defendant contends, quite erroneously, that the filing of such excerpts “had already been ostensibly
approved by the Court.” Id. at 7.
The fourth motion seeks “an in-person hearing” on all three motions “[i]f the Court deems
it necessary[.]” Fourth Motion at 5. Given the hotly disputed nature of the second motion, such a
hearing does appear to be necessary. Additionally, several of the specific sanctions requested by
the plaintiffs would be appropriately addressed to the trial judge, as they would directly affect the
conduct of the trial, and appear to be overly punitive given the availability, and request for, the
remedy of contempt, with its associated sanctions. The defendant’s opposition to the third and
fourth motions is weaker, but that does not mean that any one or more of the particular sanctions
sought by the plaintiffs should necessarily be imposed at this time.
In addition, an order to show cause directed to the defendant should issue before I make
any recommendations about the plaintiffs’ request that the defendant be found in contempt. A
party accused of civil contempt is entitled to an evidentiary hearing when there are disputed issues
of material fact, see, e.g., Goya Foods, Inc. v. Wallack Mgmt. Co., 290 F.3d 63, 77 (1st Cir. 2002);
FTC v. Case Equip. Co., 821 F.Supp. 790, 792 (D. Me. 1993).
II.

Conclusion

In conclusion, because of the potential effect of some of the plaintiffs’ request for specific
types of relief on the trial of this case, the need for an evidentiary hearing on at least some of the
issues raised by the plaintiffs’ motions, and the imminence of trial, I DENY the motions for
sanctions without prejudice to their renewal during or after trial. Any of the remedies sought by
the plaintiffs short of partial or full default, which are extreme sanctions, will continue to be
available after trial, when a fuller picture of the effect of the alleged violations will be available,

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there will be no need to fit the hearing into a limited period of time before the start of trial, and
some of the issues may be resolved at or by the trial.

NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum,
within fourteen (14) days after being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.

Dated this 12th day of September, 2014.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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