State Farm Mutual Automobile Insurance Company v. Elite Health Centers Inc. et al

Filing 415

ORDER re: 407 MOTION for Order to Show Cause as to why Dalene Spratt Should not be Held in Contempt and Supporting Brief filed by State Farm Mutual Automobile Insurance Company..( Show Cause Hearing set for 3/22/2019 09:15 AM before Magistrate Judge Anthony P. Patti)--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Plaintiff,

Case No. 2:16-cv-13040
District Judge Avern Cohn
Magistrate Judge Anthony P. Patti

v.
ELITE HEALTH CENTERS, INC., ELITE
CHIROPRACTIC, P.C., ELITE
REHABILITATION, INC., MIDWEST
MEDICAL ASSOCIATES, INC., PURE
REHABILITATION, INC., DEREK L.
BITTNER, D.C., P.C., MARK A. RADOM,
DEREK LAWRENCE BITTNER, D.C.,
RYAN MATTHEW LUKOWSKI, D.C.,
MICHAEL P. DRAPLIN, D.C., NOEL H.
UPFALL, D.O., MARK J. JUSKA, M.D.,
SUPERIOR DIAGNOSTICS, INC.,
CHINTAN DESAI, M.D., MICHAEL J.
PALEY, M.D., DEARBORN CENTER
FOR PHYSICAL THERAPY, L.L.C.,
MICHIGAN CENTER FOR PHYSICAL
THERAPY, INC., and JAYSON ROSETT
Defendants.
_________________________/
ORDER REGARDING STATE FARM MUTUAL’S MOTION FOR ORDER
TO SHOW CAUSE AS TO WHY DARLENE SPRATT SHOULD NOT BE
HELD IN CONTEMPT (DE 407), AND SETTING SHOW CAUSE
HEARING FOR MARCH 22, 2019

I.

Procedural Background
On or about February 7, 2019, Plaintiff State Farm Mutual Automobile

Insurance Company (“State Farm Mutual”) filed a motion to show cause against
non-party Darlene Spratt for failure to respond to State Farm Mutual’s subpoena
for documents. (DE 407.) State Farm Mutual asserts in its motion that Darlene
Spratt (hereinafter “Spratt”), along with her husband Antonio Spratt, were involved
in a “scheme” whereby they obtained unapproved police reports from a Detroit
police officer (before they were publicly available from lawful sources), and then
sold those unapproved police reports to Defendant Jayson Rosett, and his father
Robert Rosett, who in turn used those reports to solicit accident victims to be
represented by Michael Morse and other personal injury attorneys. (DE 407 at 67.)
State Farm Mutual states that it served a subpoena for documents related to
this “scheme” on Spratt on August 9, 2018, but that she did not respond. (Id. at 78, citing DEs 407-5, 407-6.) State Farm Mutual sentSpratt via certified mail a
letter informing her that she missed the August 23, 2018 deadline to respond to the
subpoena and thereby waived any objections, and requesting production of
responsive documents, but she did not accept the certified mail. (Id. citing DEs
407-7, 407-8.)

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State Farm Mutual then requested from the Court leave to file a motion for
an order to show cause why Spratt should not be held in contempt for failing to
respond to its subpoena for documents, which the Court granted. (DE 399, Textonly order dated 2/1/2019.) Accordingly, State Farm Mutual filed the instant
motion, requesting that the Court order Darlene Spratt to show cause why she
should not be held in contempt for failing to comply with the subpoena for
documents. (DE 407.) Spratt has not responded to this motion, which was duly
served upon her. (Id. at 12.)
II.

Federal Rule of Civil Procedure 45
Federal Rule of Civil Procedure 45 govern subpoenas and the discovery of

information from third parties. Rule 45(g) provides that the court “may hold in
contempt a person who, having been served, fails without adequate excuse to obey
the subpoena or an order related to it.” Fed. R. Civ. P. 45(g). Whether to hold a
party in contempt is within the sound discretion of the district court, but it is a
power that “should not be used lightly.” Elec. Workers Pension Trust Fund of
Local Union 58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir.
2003). A party seeking to establish contempt must produce “clear and convincing
evidence” showing that the party opposing contempt violated a “‘definite and
specific order of the court requiring him to perform or refrain from performing a
particular act or acts with knowledge of the court’s order.’” Id. at 378 (citation
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omitted). Once the moving party establishes its prima facie case, “the burden
shifts to the contemnor who may defend by coming forward with evidence
showing that he is presently unable to comply with the court’s order.” Id. (citation
omitted). When evaluating an alleged contemnor’s failure to comply with a court
order, the court “also consider[s] whether the [individual] ‘took all reasonable
steps within [his or her] power to comply with the court’s order.’” Id. (citation
omitted).
III.

Order
Upon consideration, State Farm Mutual and non-party Darlene Spratt are

ordered to appear before the Court for a show cause hearing on State Farm
Mutual’s motion (DE 407) on March 22, 2019, at 9:15 a.m. in courtroom 251, at
which non-party Darlene Spratt must explain why she should not be held in
contempt for failing to comply with State Farm Mutual’s subpoena, unless the
parties are able to resolve this motion by stipulated order in advance of the hearing
and so inform the Court in writing. Failure to appear for the hearing may result in
a bench warrant being issued for Darlene Spratt’s arrest and/or an order holding
her in civil contempt. State Farm Mutual shall certify to the Court in writing that a
copy of this Order has been served upon Spratt by email, first class mail and
overnight courier within three business days of its issuance.
IT IS SO ORDERED.
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Dated: March 8, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on March 8, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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