Solis v. ACC Concrete Corp. et al

Filing 9

ORDER vacating and replacing the Court's 5/8/12 Order. See attached. Ordered by Senior Judge Denis R. Hurley on 5/11/2012. (Attachments: # 1 Administrative Subpoena) (Malley, Sean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------X
HILDA L. SOLIS, Secretary of
Labor, United States Department
of Labor,
Petitioner,

ORDER
12 MC 192 (DRH)

-againstACC CONCRETE CORP.; APJ
CONTRACTING INC.; and ANTHONY
ISOLA, individually and as
President of those entities,
Respondents.
-------------------------------X
A P P E A R A N C E S:
For Petitioner:
Sarah Kay Marcus, Esq.
U.S. Department of Labor
Office of the Solicitor, Region II
201 Varick Street, Room 983
New York, New York 10014
Respondents - No Appearance
HURLEY, Senior Judge
The captioned action was brought as a miscellaneous
case seeking an Order to compel respondents to comply with an
administrative subpoena duces tecum and ad testificandum related
to a pre-litigation enforcement action initiated by the United
States Department of Labor.
By Order dated March 21, 2012, the Court granted
petitioner's Motion to compel by directing "the respondents [to]
appear at the Wage and Hour Division Long Island District Office,
United States Department of Labor, 1400 Old Country Road, Suite

410, Westbury, New York 11590, within ten days of this Order to
produce the testimony and documents as requested in the [annexed]
Subpoena."1

Mar. 21, 2012 Order at 2.

Respondents replied to

the March 21st Order by submitting an incomplete set of
documents.

As a result, another Court Order was issued, this

time on April 24, 2012.

That Order directed that

[r]espondents . . . show good cause on May 4,
2012 at 3:30 p.m. why they should not be
found in civil contempt for failing to comply
with an Order of this Court [dated March 21,
2012]. Individual Respondent Anthony Isola
must appear in person, and with counsel [visa-vis the corporate respondents], at that
time. In the alternative, if Respondents
choose to comply fully with the Court's Order
and the underlying subpoena before the May 4
hearing, counsel for Petitioner shall inform
the Court of their compliance and the hearing
shall be cancelled along with Respondents'
obligation to show cause.
Petitioner shall serve Respondents with a
copy of this Order, including personal
service on Mr. Isola, and file proof of same.
Apr. 24, 2012 Order.
Petitioner filed a "Return of Service" indicating that
Anthony Isola was personally served with the April 24, 2012 Order
by Department of Labor Investigator William J. Dempsey on April
25, 2012.

Nonetheless respondent Isola failed to appear before

the undersigned on May 4, 2012 or to otherwise communicate with
the Court explaining his, as well as the corporate respondents',

1

Another copy of that subpoena is attached as Ex. A.
-2-

nonappearance.
Under Rule 45(e), Fed. R. Civ. P., "the issuing court
may hold in contempt a person who, having been served, fails
without adequate excuse to obey a subpoena."

A Court may execute

its authority in this regard where three elements have been
established, viz. (1) a "clear and unambiguous" order, (2) "clear
and convincing" proof of noncompliance with the order, and (3) a
showing that the contemnor has "not been reasonably diligent and
energetic in attempting to accomplish what was ordered."

Hunter

TBA, Inc. v. Triple V Sales, 250 F.R.D. 116, 119 (E.D.N.Y.
2008)(internal quotes and citations omitted).

"The underlying

concern is 'disobedience to the orders of the judiciary,' not
'merely the disruption of court proceedings.'" Id. at 118(quoting
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)).

The April 24th

Order, as well as the earlier Order seemingly satisfy each of
those three standards.
Given respondents' failure to comply with the subpoena
duces tecum and ad testificandum," as well as the March 21, 2012
and April 24, 2012 Orders of this Court:
IT IS ORDERED that the warrant of arrest shall issue
for the respondent Isola, the execution of which is stayed until
June 8, 2012, and
IT IS FURTHER ORDERED that should the respondent Isola
appear at the Wage and Hour Division, Long Island Office, United

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States Department of Labor, 1400 Old Country Road, Suite 410,
Westbury, NY 11590 and produce the documents and testimony called
for in the subject subpoena at 10:30 a.m. on June 1, 2012,
petitioner shall so notify the Court and the above arrest warrant
will be vacated, and
IT IS FURTHER ORDERED that should the respondent Isola
again elect not to appear as directed by the Court, petitioner
shall notify the Court of same forthwith by affirmation or
affidavit, in which case the stay of the warrant will be lifted
and the warrant activated so that respondent may be arrested and
brought before the Court for purposes of, inter alia, setting a
hearing date to determine whether he should be held in civil
contempt of Court, and
IT IS FURTHER ORDERED that petitioner shall personally
serve a copy of this Order and the attached subpoena upon
respondent Isola on or before May 18, 2012, and file the
appropriate affidavit of service promptly

thereafter.

SO ORDERED.2
Dated: May 11, 2012
Central Islip, New York

/s
DENIS R. HURLEY, U.S.D.J.

2

This Order replaces the Order erroneously issued on May 8,
2012, which is hereby vacated.
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