Atwood v. Cheney et al
ORDER granting 304 Motion for Sanctions; granting 305 Motion for Sanctions; denying 341 Motion for Sanctions. Signed by District Judge Sharion Aycock on 9/5/2017. (dbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DAVID GARLAND ATWOOD, II
CIVIL ACTION NO.1:12-CV-168-SA-DAS
MIKE CHENEY, et al.
ORDER ON SANCTIONS
Now before the Court are the Plaintiff’s Motions [304, 305] for remedial and
compensatory sanctions against two witnesses that he alleges failed to appear for depositions on
two separate occasions. The witnesses filed a late Response and Countermotion  for
sanctions against the Plaintiff.1 After briefing and a hearing on the issues, the Court finds as
As part of the discovery in this case the pro se Plaintiff issued two subpoenas, with prior
Court approval, to take depositions of Emmett Atwood and Kade Atwood. The depositions were
scheduled for February 22, 2016. Emmett Atwood and Kade Atwood were personally served
with the subpoenas by two separate process servers. The process returns, signed by the process
servers under penalty of perjury, indicate that Emmett Atwood and Kade Atwood were served
with the subpoenas and witness and mileage fees in the amount of $65.00 each.
Emmett Atwood and Kade Atwood did not appear for their depositions scheduled for
February 22, 2016. The Plaintiff filed motions to compel [236, 242] their appearances. The
Magistrate Judge in this case entered an Order  granting the Plaintiff’s request to compel
both witnesses’ appearances. The Magistrate Judge ordered Emmett Atwood and Kade Atwood
The Plaintiff moved to strike the witnesses’ Response and Countermotion because it was filed late, nearly four
months after the Motions for Sanctions even though the witnesses had actual notice of the Motions for Sanctions
earlier, and for a variety of procedural and local rule violations. The Court finds the Plaintiff’s arguments well-taken
but nevertheless denies his request to strike the pleadings and considered the Response and Countermotion in its
decision on this issue.
to appear at a future deposition, and his order states, “Failing to attend theses depositions is
tantamount to violating a court order, and as such, whoever does not attend could be held in
contempt of court and sanctioned. Order  Aug. 19, 2016.
Emmett Atwood and Kade Atwood were again personally served with new subpoenas
and a copy of the Magistrate Judge’s Order commanding their appearances. The Plaintiff did not
attach witness and mileage fees to the second set of subpoenas because the witness fees had
already been submitted. Neither Emmett Atwood nor Kade Atwood appeared for their second
scheduled deposition.2 Emmett Atwood and Kade Atwood were eventually deposed in this case
after communicating with defense counsel from the State Attorney General’s office. The Plaintiff
now requests that Emmett Atwood and Kade Atwood reimburse him for the expenses of the first
two failed deposition attempts and for his costs to prosecute this sanctions request.
The Court finds, after reviewing the record as a whole, and based on the testimony and
evidence presented at a hearing on the issue, that Emmett Atwood and Kade Atwood never had
any intention of appearing at the depositions requested by the Plaintiff. It is clear that these
witnesses have personal issues with the Plaintiff for a variety of reasons, some related to this
case and some not, and that they willfully ignored the subpoenas. Emmett Atwood and Kade
Atwood’s primary excuse for not appearing was that they relied on the advice of Emmett
Atwood’s lawyer, who instructed him that they he was not required to comply with the subpoena
because witness fees were not attached. Kade Atwood claims he followed that advice, even
though admittedly he did not consult with an attorney himself and instead took the word of his
uncle Emmett Atwood.
The Court notes that date for the second scheduled depositions was changed after the Magistrate Judge issued his
Order because the Court Reporter was not available for the original date. The testimony at the hearing revealed that
the witnesses knew that the date was changed.
Of course, Federal Rule of Civil Procedure 45 requires simultaneous tendering of witness
and mileage fees. See FED. R. CIV. P. 45(b)(1); In re Dennis, 330 F.3d 696, 705 (5th Cir. 2003)
(collecting cases). The witnesses have not brought forth any authority however, to support their
assertion that witness fees must be provided a second time for a re-issued subpoena. This
assertion strains the limits of common sense. In any event, while a lack of witness fees may or
may not have been a basis for a motion to quash, the witnesses in this case, and their attorney,
admit that they did not make any attempt to quash these subpoenas.
“The movant in a civil contempt proceeding bears the burden of establishing by clear and
convincing evidence: (1) that a court order was in effect; (2) that the order required certain
conduct by the respondent; and (3) that the respondent failed to comply with the court’s order.”
See Petroleos Mexicanos v. Crawford Enterprises, Inc., 826 F.2d 392, 401 (5th Cir. 1987) (citing
McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 93 L. Ed. 599 (1949)).
Notably, “willfulness is not an element of civil contempt.” Id. “After the movant has shown a
prima facie case, the respondent can defend against it by showing a present inability to comply
with the subpoena or order.” See Petroleos, 826 F.2d at 401 (citing United States v. Rylander,
460 U.S. 752, 757, 103 S. Ct. 1548, 75 L. Ed. 2d 521 (1983)).
The Court finds that the Plaintiff in this case has carried his burden by clear and
convincing evidence. Having established his prima facie case, the burden shifts to the witnesses
to present an inability to comply. Id. Emmett Atwood and Kade Atwood failed to bring forth any
adequate or credible excuse, or any evidence whatsoever, that they were otherwise unable to
comply. Based on all the evidence, testimony, and prior orders of this Court, the Court finds that
compensatory sanctions against Emmett Atwood and Kade Atwood for their failure to comply
with the subpoenas and the other orders of this Court are warranted.
The Plaintiff filed two sworn Affidavits [304-1, 305-1] along with his motions for
sanctions outlining the expenses he incurred for the two failed depositions. These expenses total
$604.29 apportioned to Emmett Atwood, and $569.04 to Kade Atwood.3 In addition, the Plaintiff
requests that Emmett Atwood and Kade Atwood be required to reimburse him for the costs of the
hearing on this issue, specifically $273.73 for costs and mileage for his own attendance, and
$288.53 for the costs of attendance for his witness, process server Richard Cain. The Court finds
this request reasonable, and that the Plaintiff’s incurrence of these expenses flows directly from
Emmett Atwood and Kade Atwood’s failure to comply with the subpoenas and other Court
orders issued in this case.
Splitting the costs of the hearing evenly between Emmett Atwood and Kade Atwood
($281.13 each) brings their respective totals to $885.42 for Emmett Atwood and $850.17 for
Kade Atwood. The Court is imposing these remedial sanctions only to compensate the Plaintiff
for the reasonable expenses he incurred as a direct result of Emmett Atwood and Kade Atwood’s
failure to appear for their depositions without any adequate excuse. The Court is not imposing
any sanctions to punish, discipline, or penalize Emmett Atwood and Kade Atwood.
Finally, the Court takes up Emmett Atwood and Kade Atwood’s Countermotion 
requesting sanctions against the Plaintiff. The Countermotion was not timely filed, nor was leave
of Court for a late filing requested even though the record demonstrates that the witnesses had
actual notice of the Plaintiff’s pending sanction motions. See L. U. CIV. R. 7. The Countermotion
also fails to comply with the Federal Rules of Civil Procedure because it contains no certificate
of service, and is not properly endorsed. See FED. R. CIV. P. 5, 11; L. U. CIV. R. 11. In addition,
At the hearing on these motions, counsel for the witnesses attempted to undermine the expenses actually paid by
the Plaintiff relative to these failed depositions. Although the Plaintiff did not have receipts or documentation for
every expense he allegedly incurred, the Court finds his Affidavits, corroborated by testimony given at the hearing
and at the trial of this case credible and sufficient.
the Countermotion fails to comply with the Local Rules of this Court, specifically Local Rule 7
which prohibits the filing of a response and motion in the same document. See L. U. CIV. R. 7.
These procedural defects aside, the Court finds Emmett Atwood and Kade Atwood’s request for
sanctions against the Plaintiff to be wholly without merit, and it is denied.
For all these reasons, the Court orders Emmett Atwood to deposit $855.42 with the Clerk
of Court at the below address within 30 days of the issuance of this Order, to be disbursed by the
Clerk to the Plaintiff. The Court orders Kade Atwood to deposit $850.17 with the Clerk of Court
at the below address within 30 days of the issuance of this Order, to be disbursed by the Clerk to
District Court Clerk’s Office
By Mail or In Person:
US District Court
Northern District of Mississippi
911 Jackson Avenue, Room 369
Oxford, MS 38655
SO ORDERED, on this the 5th day of September, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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