SOWELL v. RAV INVESTIGATIVE & SECURITY SERVICES, LTD et al
MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION FOR CONTEMPT IS DENIED WITHOUT PREJUDICE; ETC.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 3/7/17. 3/7/17 ENTERED AND COPIES MAILED TO UNREP, E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAV INVESTIGATIVE & SECURITY
SERVICES, LTD, et al.,
March 7, 2017
Lamar Sowell sued RAV Investigative & Security Services, LTD and Sonesta
International Hotels Corporation alleging violations of Title VII of the Civil Rights Act of 1964
and the Pennsylvania Human Relations Act. Sowell was employed by RAV, who assigned him to
work as a security guard at Sonesta. Sowell contends that his managers at RAV harassed and
eventually terminated him because of his religion. RAV failed to appear or otherwise respond to
Sowell’s complaint, eventually leading to a default judgment against RAV. Sowell and Sonesta
settled Sowell’s remaining claims. After the default judgment, and upon Sowell’s motion, the
Court ordered RAV to respond to Sowell’s post-judgment interrogatories and produce a corporate
designee for a deposition to identify RAV’s executable assets. Sowell now moves to hold RAV
in contempt for its failure to comply with the Order. The Court denies the motion without
Sowell filed his complaint on June 30, 2015. (ECF No. 1.) He attempted to serve RAV
via a waiver of service, but RAV did not sign and return the waiver or otherwise appear. (Pl.’s
Mot. to Enter Default J. (“Pl.’s Mot.”) ¶¶ 1–2, Ex. A, ECF No. 17.) On August 18, 2015 Sowell
personally served one of RAV’s officers with a copy of the summons and complaint. (Id., Ex.
B.) After RAV failed to appear or respond to the complaint, Sowell’s counsel sent a letter to
RAV on October 5, 2015 stating that he would file a motion for default judgment if a
representative from RAV did not contact him by October 12, 2015. (Id., Ex. C.) RAV did not
respond to the letter and Sowell requested the clerk of court to enter default pursuant to Rule
55(a). (ECF No. 13.) The clerk entered default against RAV on October 15, 2015. (ECF No.
14.) Sowell then filed a motion for default judgment on December 1, 2015, (ECF No. 17), which
the Court granted on May 26, 2016, (ECF No. 30).
Following the entry of default judgment against RAV, Sowell sought post-judgment
discovery in order to determine and locate RAV’s assets as a judgment debtor. See (id. at 6–7).
Sowell filed a motion to compel RAV to respond to his post-judgment discovery requests, (ECF
No. 54), which RAV did not respond to in any way. On December 1, 2016 the Court granted the
motion and ordered RAV to provide full and complete responses to Sowell’s post-judgment
interrogatories and to produce a corporate designee for deposition pursuant to Federal Rule of
Civil Procedure 30(b)(6) within thirty days of the Order. (ECF No. 55.) Sowell mailed a copy of
the order to RAV via regular mail. (Pl.’s Mot. to Compel, at 7, ECF No. 57.)
RAV has not responded to Sowell’s discovery requests. (Id. at 1–2.) On January 9, 2017
Sowell filed a motion for contempt pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vii).
(ECF No. 57.)
Before the Court may hold a party in civil contempt, the party seeking the contempt order
must show that: (1) a valid court order existed; (2) the defendant had knowledge of the order;
and (3) the defendant disobeyed the order. Roe v. Operation Rescue, 919 F.2d 857, 871 (3d Cir.
1990). The movant must establish each of these elements by clear and convincing evidence.
Gregory v. Depte, 896 F. 2d 31, 38 (3d Cir. 1990).
Sowell has not established each element by clear and convincing evidence. While a valid
court order clearly existed, Sowell has not established that RAV had knowledge of the order.
Sowell states that he “served a copy of the Order on RAV via U.S. mail,” and thus “there can be
no dispute that RAV received knowledge of the Order.” (Pl.’s Mot. to Compel, at 7, ECF No.
57.) Sowell notes that the mail was not returned by the post office, (id. at 8), and contends that
this establishes RAV’s knowledge of the Order. Sowell relies on the common law “mailbox rule”
to support this argument. (Id. at 7–8 (citing Phila. Marine Trade Ass’n.-Int’l. Longshoremen’s
Ass’n Pension Fund v. C.I.R., 523 F.3d 140, 147 (3d Cir. 2008); Heath-El v. Harrisburg Housing
Auth., No. 10-0022, 2011 WL 1771047, at *1 (M.D. Pa. 2011)).) The “mailbox rule” cases
Sowell relies upon are, however, inapplicable. Philadelphia Marine dealt with the timely filing
of tax documents, see Phila. Marine, 523 F.3d at 146, and Heath-El concerned the mailing of an
order under Federal Rule of Civil Procedure 41(b) for a plaintiff’s failure to prosecute, see
Heath-El, 2011 WL 1771047, at *1. Neither case required the moving party to demonstrate the
other party’s knowledge by clear and convincing evidence.
Courts in this circuit typically require more than a single instance of regular mail to
suffice as clear and convincing evidence of an alleged contemnor’s knowledge of a court order.
In Residential Roofers Local 30-B Health & Welfare Fund v. Rynk Roofing, 848 F. Supp. 590
(E.D. Pa. 1994), for example, the plaintiff established that the contemnor had knowledge of a
valid court order by mailing the order to the contemnor via regular mail, certified mail, and the
United Parcel Service (“UPS”). 848 F. Supp. at 592. While the certified mail was returned, the
regular mail was not, and the copy sent via UPS was successfully delivered, though the recipient
refused to sign. Id. Even where the certified mail was returned, however, the plaintiffs were
able to establish a paper trail which, in conjunction with regular mail, established clear and
convincing evidence that the contemnor had knowledge of the order. See id.
In New Jersey Building Laborers’ Statewide Benefit Funds v. Excel Service &
Construction, Inc., No. 09-0583, 2009 WL 3335864 (D.N.J. Oct. 13, 2009), the court reached a
similar conclusion where the plaintiff purported to serve the alleged contemnor with the court’s
order via regular and certified mail. 2009 WL 3335864, at *1. The court noted that although the
certified mail was returned unclaimed and the regular mail was not returned to the post office,
the plaintiff’s failure to include the paper trail generated by the certified mail undermined the
plaintiff’s showing of the alleged contemnor’s knowledge of the court order. Id. at *2. Even if
the certified mail was returned, its paper trail, coupled with the fact that the regular mail was
unreturned, “would have shown the Court that [the alleged contemnor] had many opportunities
to learn of and adhere to this Court’s Order, and chose not to.” Id. But cf. also Abex Labs., Inc. v.
Cooperider, 319 F. Supp.2d 507, 509 (E.D. Pa. 2004) (finding that regular mail, in addition to
the clerk of court mailing a copy of the order to the alleged contemnor was “likely” enough to
meet the knowledge requirement, but refusing to issue contempt order on other grounds). Sowell
has simply alleged that he mailed the Court’s Order to RAV by regular mail. That does not
constitute clear and convincing evidence of RAV’s knowledge of the Order.
Sowell also contends that “RAV’s CEO/President willfully ignored his deposition notice,
and he too is in contempt of Court.” (Pl.’s Mot., at 9.) That is incorrect. Sowell has not
established by clear and convincing evidence the first element necessary to show contempt with
regard to Ron Allen, RAV’s CEO and President—that the Court issued a valid order relating to
Allen. The Court’s December 1, 2016 Order did not order Allen to appear personally for a
deposition, despite Sowell’s inclusion of a notice of deposition for Allen in his attachments. See
(ECF No. 55 (Granting Plaintiff’s motion to compel in part)); see also (Pl.’s Mot. to Compel, Ex.
A, at 12, ECF No. 54-1.) Instead, it simply ordered RAV to produce a corporate designee.
While Allen is not a named defendant in this case, “[t]here is authority for binding certain
corporate officials to court orders issued against named parties which are corporate defendants.”
N.J. Bld. Laborers’ Statewide Benefit Funds v. Northeast Constr. Enters., Inc., No. 09-2040, 2009
WL 4666873, at *1 (D.N.J. Dec. 8, 2009) (citing Wilson v. United States, 221 U.S. 361, 376
(1911)). Although some circuits have extended Wilson’s rule to corporate officers, see, e.g.,
Elec. Workers Pension Tr. Fund of Local Union #58 v. Gary’s Elec. Serv. Co, 340 F.3d 373, 379–
80 (6th Cir. 2003); Chi. Truck Drivers v. Bhd. Labor Leasing, 207 F.3d 500, 507–07 (8th Cir.
2000), the record does not suggest that Allen had personal knowledge of the Order, as he was not
personally served with it. Because Sowell has not established by clear and convincing evidence
that RAV had knowledge of the December 1, 2016 Order, the Court will not impute any
knowledge to Allen himself.
The Court will permit RAV an additional thirty days to respond to Sowell’s
interrogatories and to make a corporate designee available for deposition, at which point Sowell
may renew his motion for contempt if RAV does not comply. Sowell must serve the Order on
RAV consistent with this memorandum and the accompanying Order. Unreturned regular mail,
in conjunction with the paper trail created by certified mail—even if that certified mail is
refused—can suffice to show RAV’s knowledge of the Order. See, e.g., Rynk Roofing, 848 F.
Supp. at 592.
An appropriate Order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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