M-Cor Steel, Inc. v. Rodgers

Filing 72

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS that a Show Cause Order be issued to Defendant William D. Rodgers to appear and show cause why he should not be held in contempt. Objections to R&R due by 3/28/2018. Signed by Magistrate Judge Kimberly A. Jolson on 3/14/2018. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
M-COR STEEL, INC.,

Plaintiff,
Case No. 2:17-MC-035
ALGENON L. MARBLEY
Magistrate Judge Jolson

v.
WILLIAM D. RODGERS dba
TBI STEEL,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the Court for a Report and Recommendation and Certification of
Facts to the District Court regarding Defendant William D. Rodgers’ failure to appear before the
undersigned for a show-cause hearing on March 14, 2018, on the issue of why he should not be
held in contempt of court for his failure to appear for a judgment debtor examination.
For the reasons that follow, it is RECOMMENDED that a show-cause order be issued to
Defendant William D. Rodgers to appear before the district judge on a date certain and show
cause why he should not be held in contempt of this Court.
I.

MAGISTRATE JUDGE’S AUTHORITY ON MOTION FOR CONTEMPT
“Section 636(e) of the United States Magistrate Judges Act governs the contempt

authority of magistrate judges.” Lykins Oil Co. v. Hoskins Oil Co., LLC, No. 1:14-CV-832, 2017
WL 1180932, at *1 (S.D. Ohio Mar. 29, 2017), report and recommendation adopted, No.
114CV00832, 2017 WL 2160518 (S.D. Ohio May 17, 2017) (citing 28 U.S.C. § 636(e)(1)). That
section provides that a “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.” Id. In civil cases where the parties
have not consented to final judgment by the magistrate judge, contempt is governed by Section
636(e)(6)(B):
(6) Certification of other contempts to the district court.—Upon the commission
of any such act—
....
(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).
Thus, “the 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.” Lykins Oil Co., 2017 WL
1180932, at *1 (citing Int’l Brotherhood of Elec. Workers, Local 474 v. Eagle Elec. Co., Inc.,
No. 06-2151, 2007 WL 622504, at *1, n.1 (W.D. Tenn. Feb. 22, 2007); United States v. Ivie, No.
05-2314, 2005 WL 1759727, at *1, n.1, and *2 (W.D. Tenn. June 14, 2005); NXIVM Corp. v.
Bouchey, No. 1:11-mc-0058, 2011 WL 5080322, at *3 (N.D.N.Y. Oct. 24, 2011) (and cases cited
therein)). “The certification of facts under section 636(e) serves to determine whether the
2

moving party can adduce sufficient evidence to establish a prima facie case of contempt.” Id.
(citations omitted).
II.

CERTIFIED FACTS
The following facts are certified to the district court: Plaintiff M-Cor Steel, Inc. obtained

a judgment against Defendant William D. Rodgers dba TBI Steel in the principal amount of
$128,937.16 on October 21, 2016 in the United States District Court for the Western District of
Pennsylvania. (Docs. 1, 4-3). The judgment was transferred to this Court and entered and filed
on June 21, 2017, against Defendant and in favor of Plaintiff. (Doc. 4). That judgment has not
been paid.
In aid of the judgment, on July 17, 2017, Plaintiff moved for a judgment debtor
examination of Mr. Rodgers. (Doc. 4). The Court granted Plaintiff’s Motion, and ordered Mr.
Rodgers to appear in Court for a judgment debtor examination on August 4, 2017. (Doc. 5).
Due to service issues, the debtor examination was rescheduled for January 9, 2018. (Doc. 60).
Mr. Rodgers, however failed to appear for the judgment debtor examination hearing. (See Doc.
70).
On February 20, 2018, Mr. Rodgers was ordered to appear before the undersigned on
March 14, 2018, to show cause why he should not be held in contempt of court for failing to
appear for the judgment debtor examination. (Id.). The docket reflects that the show-cause
Order was sent to Mr. Rodgers both via regular and certified mail. Nevertheless, Mr. Rodgers
failed to appear at the March 14, 2018 hearing, failed to notify the Court that he would not be
present, and failed to seek a continuance or otherwise object. A court reporter was present and
recorded the fact of Mr. Rodgers’ non-appearance.

3

III.

DISCUSSION
It is well established that “[d]isobedience of a lawful court order may be punishable as

contempt.” Lykins Oil Co., 2017 WL 1180932, at *2 (citing Glover v. Johnson, 138 F.3d 229,
245 (6th Cir. 1998)).

“Contempt proceedings enforce 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, 588 (6th
Cir. 1987).
In order to hold a litigant in contempt,
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, 1042 (6th Cir. 2007); Gary’s Elec. Serv. Co., 340 F.3d at 379. “Once the
movant establishes his 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.” 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
consider whether the defendant “took all reasonable steps within his power to
comply with the court’s order.” Gary’s Elec. Serv. Co., 340 F.3d at 379 (quotation
omitted).
Lykins Oil Co., 2017 WL 1180932, at *2.
In the instant case, Mr. Rodgers’ failure to appear before the Court after being ordered to
do so by the undersigned constitutes disobedience of lawful court orders and thus contempt
before the magistrate judge. See id. (citing United States v. Ivie, 2005 WL 1759727, at *2
(“Contempts committed in a proceeding before a magistrate judge include not only contempts
committed in the magistrate judge’s presence, but also contempts related to proceedings before
the magistrate judge.”) (internal quotations and citations omitted)).
Consequently, it is recommended that the district judge issue a show-cause order to
Defendant William D. Rodgers to appear at a date certain before the district judge to show cause
4

during a hearing why he should not be held in contempt of court for failing to obey this Court’s
Orders. (Docs. 60, 70).
IV.

CONCLUSION
It is hereby RECOMMENDED that the district judge issue a show cause order to

defendant William D. Rodgers to appear at a date certain before the district judge to show cause
during a hearing why he should not be held in contempt of this Court’s Orders. (Docs. 60, 70).
IT IS SO ORDERED.

Date: March 14, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

5