Hogan v. Cleveland Ave Restaurant, Inc. et al

Filing 307

REPORT AND RECOMMENDATION and CERTIFICATION OF FACTS re 245 Plaintiff's Motion for Order to Show Cause Against Vanity Gentlemen's Club. It is RECOMMENDED that non-party Vanity Gentlemen's Club not be held in civil contempt. Objections to R&R due by 9/15/2020. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/1/20. (sem)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JESSICA HOGAN, et al.,
Plaintiffs,
Case No. 2:15-cv-2883
vs.

Chief Judge Algenon L. Marbley
Chief Magistrate Judge Elizabeth P. Deavers

CLEVELAND AVE RESTAURANT,
INC., et al.,
Defendants.
REPORT AND RECOMMENDATION and CERTIFICATION OF FACTS
This matter is before the Undersigned pursuant to General Order No. COL:1401(IV)(C)(2), for consideration of Plaintiffs’ Motion for Order to Show Cause Against Vanity
Gentlemen’s Club. (ECF No. 245.) Plaintiffs move this Court for an order finding Vanity in
contempt for failure to comply with a subpoena without adequate excuse. (Id.) For the reasons
that follow, it is RECOMMENDED that non-party Vanity not be held in civil contempt.
I.

MAGISTRATE JUDGE’S AUTHORITY REGARDING CONTEMPT

Section 636(e) of the United States Magistrate Judges Act governs the contempt authority
of magistrate judges. 28 U.S.C. § 636(e)(1) (“A United States magistrate judge serving under
this chapter shall have within the territorial jurisdiction prescribed by the appointment of such
magistrate judge the power to exercise contempt authority as set forth in this subsection.”)
Section (e)(6)(B), which applies in civil cases where the parties have not consented to final
judgment by the magistrate judge, provides as follows:
(6) Certification of other contempts to the district court.—Upon the
commission of any such act—

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(B) in any other case or proceeding under subsection (a) or (b) of this
section, or any other statute, where—
(i) the act committed in the magistrate judge’s presence may, in the
opinion of the magistrate judge, constitute a serious criminal
contempt punishable by penalties exceeding those set forth in
paragraph (5) of this subsection,
(ii) the act that constitutes a criminal contempt occurs outside the
presence of the magistrate judge, or
(iii) the act constitutes a civil contempt,
the magistrate judge shall forthwith certify the facts to a district
judge and may serve or cause to be served, upon any person whose
behavior is brought into question under this paragraph, an order
requiring such person to appear before a district judge upon a day
certain to show cause why that person should not be adjudged in
contempt by reason of the facts so certified. The district judge shall
thereupon hear the evidence as to the act or conduct complained of
and, if it is such as to warrant punishment, punish such person in the
same manner and to the same extent as for a contempt committed
before a district judge.
28 U.S.C. § 636(e)(6)(B) (emphasis in original).
Thus, a “magistrate judge’s role on a motion for contempt in non-consent cases is to
certify facts relevant to the issue of contempt to the district judge.” Euchlid Chem. Co. v. Ware,
No. 1:11-cv-135, 2013 WL 6632436, at *1 (S.D. Ohio Dec. 17, 2013) (collecting cases
establishing the proposition). Such a certification “serves to determine whether the moving party
can adduce sufficient evidence to establish a prima facie case of contempt.” In re Warren
Easterling Litigation, No. 3:14-mc-11, 2014 WL 3895726, at *1 (S.D. Ohio Aug. 8, 2014)
(internal quotation marks and citation omitted).

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II.

CERTIFIED FACTS

On February 7, 2020, Plaintiffs moved the Court for an order under Rule 45(g) of the
Federal Rules of Civil procedure requiring Vanity Gentlemen’s Club (“Vanity”) to show cause
why it should not be held in contempt for failing to obey a subpoena without adequate cause.
(ECF No. 245.) Plaintiffs’ Motion was supported by an Affidavit of Laura M. Linneman,
paralegal at the law firm of Markovits, Stock, and DeMarco. (ECF No. 245-1.) As verifed in the
Affidavit, a subpoena for documents (“the Subpoena”) was sent by certified mail to Vanity on
October 1, 2019. (Id. at 1, 4-8.) An electronic return receipt from the United States Postal
Service shows that the Subpoena was delivered on October 4, 2019. (Id. at 2, 10.) As of the date
of Plaintiffs’ Motion, Vanity had not produced any documents responsive to the Subpoena or
objected to the Subpoena, nor had it responded to Plaintiffs. (Id. at 2.) Plaintiffs’ moved for an
order requiring Vanity to appear and show cause as well as for an order requiring Vanity to pay
Plaintiffs’ expenses, including attorney fees, incurred in connection with their counsel’s efforts
to secure compliance with the Subpoena. (ECF No. 245 at 3–4.) On April 9, 2020, the
Undersigned granted Plaintiffs’ Motion and, inter alia, ordered that “[u]nless Plaintiffs report
that [Vanity] [has] responded or produced the requested documents in the interim, . . . Vanity
shall appear” and show cause why it should not be held in contempt for failing to obey the
Subpoena. (ECF No. 254.)
On April 14, 2020, Vanity filed a Notice indicating that it had responded to the
Subpoena. (ECF No. 257.) On April 29, 2020, Plaintiffs filed a Notice with additional
information about the Subpoena to Vanity and Vanity’s alleged response. (ECF No. 264.)
Plaintiffs represented that counsel for Vanity, Damion M. Clifford, emailed Plaintiffs’ counsel
on April 14, 2020, objecting to the Subpoena and indicating that Vanity only recently became

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aware of it and the Motion for Order to Show Cause. (ECF No. 264-1 at 10–11.) Plaintiffs’
counsel responded to Mr. Clifford on April 15, 2020, asserting that Vanity’s objections were
improper and that its response to the Subpoena was thus still incomplete. (Id. at 13–16.)
On May 1, 2020, the Undersigned conducted a telephonic Show Cause Hearing pursuant
to the April 9, 2020 Order. Mr. Clifford attended on behalf of Vanity and represented that
Vanity did not receive a copy of the Subpoena until January and that it did not receive the
Motion for Order to Show Cause until April. He further represented that Vanity likely has no
responsive documents. The Undersigned directed Vanity to produce any documents that it has
related to the lease agreements at issue in this case and set another conference for May 13, 2020.
At the follow-up conference on May 13, 2020, Mr. Clifford represented that Vanity had
produced a two-page document to Plaintiffs and that it has no other relevant documents.
Plaintiffs’ counsel confirmed receipt of those documents but maintained that Vanity should still
be held in contempt and sanctioned due to its failure to timely respond to the Subpoena and to
compensate for the more than ten hours of attorney time required for Vanity to comply with the
Subpoena.
On May 14, 2020, Vanity filed an Affidavit by its owner, Abe Amira. (ECF No. 269.)
Mr. Amira represented that Vanity has never been a member of the Buckeye Coalition of Club
Executives (“BACE”) or The Owners’ Coalition (“OC”). (Id. at ¶ 2.) He asserted that Vanity
did not receive the Subpoena until January 2020, at which point he provided it to Mr. Clifford.
(Id. at ¶¶ 3–5.) Additionally, Mr. Amira maintained that Vanity was not served with the Motion
for Order to Show Cause on March 16, 2020, as Vanity was in compliance with the Governor of
Ohio’s temporary closure of bars due to the COVID-19 pandemic and therefore no one was
present to sign for the certified mail. (Id. at ¶¶ 8–9.) Mr. Amira believed that the postal carrier

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signed for the certified mail in March and, by comparison of the signatures, also in October 2019
when the Subpoena was initially served. (Id. at ¶ 10, Exhibit 1, Exhibit 2.)
On May 15, 2020, Vanity filed a formal Response in Opposition to Plaintiffs’ Motion for
Order to Show Cause. (ECF No. 273.) Vanity contends that it should not be held in contempt
because it has now fully responded to the Subpoena by producing its only responsive documents.
(Id.) It asserts that delay alone is not a proper basis for imposing sanctions. (Id. at 3–4.) It
further asserts that Plaintiffs had knowledge that Vanity was and is not a member of BACE or
OC such that it should have known Vanity would not have relevant information. (Id. at 4.)
Vanity cites several cases of district courts across the country holding that sanctions are
generally not warranted where a nonparty has not violated a court order. (Id. at 4–5.)
III.

ANALYSIS

Under the present circumstances, Vanity’s failure to timely comply with the Subpoena
does not constitute disobedience to a lawful court order amounting to contempt. “The court for
the district where compliance is required . . . 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). The Court’s use of its contempt power “enforce[s] the message that court orders and
judgments are to be complied with in a prompt manner.” IBEW v. Gary’s Elec. Serv. Co., 340
F.3d 373, 378 (6th Cir.2003) (citing NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th
Cir. 1987)). In a contempt proceeding, the moving party must demonstrate “by clear and
convincing evidence that the party to be held in contempt violated a court order.” U.S. v.
Conces, 507 F.3d 1028, 1041–42 (6th Cir. 2007); Gary’s Elec. Serv. Co., 340 F.3d at 379. Once
a prima facie case of contempt is established, “the burden shifts to the contemnor who may
defend by coming forward with evidence showing that he is presently unable to comply with the

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court’s order.” Gary’s Elec. Serv. Co., 340 F.3d at 379. To satisfy this burden, “a defendant
must show categorically and in detail why he or she is unable to comply with the court’s order.”
Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996) (quotation omitted). The
Court must also assess whether the defendant “‘took all reasonable steps within [its] power to
comply with the court’s order.’” Gary’s Elec. Serv. Co., 340 F.3d at 379 (quoting Peppers v.
Barry, 873 F.2d 967, 969 (6th Cir. 1989)).
Here, Vanity’s delay in responding or objecting to the Subpoena does not amount to
contempt. While Vanity’s response to the Subpoena was certainly delayed, the Undersigned is
not persuaded that Plaintiffs have produced clear and convincing evidence that Vanity violated a
court order. See U.S. v. Conces, 507 F.3d 1028, 1041–42 (6th Cir. 2007) (holding that the
moving party must demonstrate “by clear and convincing evidence that the party to be held in
contempt violated a court order”). Vanity responded to the Court’s April 9, 2020 Order with a
notice stating it had responded to the Subpoena. (ECF No. 257.) Vanity’s counsel appeared and
participated in the May 1, 2020 Show Cause Hearing wherein the Undersigned ordered it to
comply with the Subpoena and produce any responsive documents. While Plaintiffs’ counsel
maintained its request for attorney fees due to the untimely response, Plaintiffs acknowledged
during the follow-up Show Cause Hearing on May 13, 2020, that they had received Vanity’s
responsive documents. Additionally, there remains questions as to whether Vanity received the
Subpoena and the Motion for Order to Show Cause, as the signature on the certified mail returns
may belong to the postal carrier.1 (See ECF No. 269.)

1

The Court is aware that during the COVID-19 pandemic, the United States Postal Service has
initiated a protocol in which the postal carrier signs the “green card” upon delivery of the
certified mail rather than making personal contact with the customer for her or his signature.
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The Advisory Committee Notes on the 2013 amendments to Federal Rule of Civil
Procedure 45 provide as follows with respect to subdivision (g):
[Rule 45(g)] is . . . amended to clarify that contempt sanctions may be applied to a
person who disobeys a subpoena-related order, as well as one who fails entirely to
obey a subpoena. In civil litigation, it would be rare for a court to use contempt
sanctions without first ordering compliance with a subpoena, and the order might
not require all the compliance sought by the subpoena. Often contempt
proceedings will be initiated by an order to show cause, and an order to comply or
be held in contempt may modify the subpoena’s command. Disobedience of such
an order may be treated as contempt.
Fed. R. Civ. P. 45 Advisory Committee Note (2013) (emphasis added). While the Court
acknowledges Vanity’s delay in responding to the Subpoena, under these circumstances where
Vanity complied with the Court’s order to produce any responsive documents, the Undersigned
finds that civil contempt sanctions are inappropriate.
IV.

CONCLUSION

For the foregoing reasons, it is RECOMMENDED that Vanity not be found in civil
contempt at this time for failure to comply in a timely manner with the Subpoena.
The Clerk is DIRECTED to send by first class mail and email a copy of this Report and
Recommendation to counsel for Vanity at the following addresses:
Damion M. Clifford
Arnold & Clifford LLP
115 W. Main Street, 4th Floor
Columbus, Ohio 43215
[e-mail]
The Clerk is FURTHER DIRECTED to indicate on the docket the fact of mailing.

PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
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Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat=l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

DATED: September 2, 2020

/s/ Elizabeth A. Preston Deavers______
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE

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