United States District Court, M.D. Tennessee, Nashville Division
Honorable Aleta A. Trauger, United States District Judge.
REPORT AND RECOMMENDATION AND CERTIFICATION OF
BARBARA D. HOLMES United States Magistrate Judge.
before the court is the plaintiff's renewed (and
supplemented) motion to have the defendant held in civil
contempt for failing to comply with this court's order
compelling the defendant to respond to post-judgment
discovery (see Docket Nos. 197 and 202), which was
referred to the undersigned Magistrate Judge for disposition
(see Docket No. 200).
MAGISTRATE JUDGE'S AUTHORITY
than limited exceptions, which do not apply here, in
instances where a person has committed an act constituting a
contempt in a proceeding before the magistrate judge, section
636(e) of Title 28 directs a certification procedure whereby:
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 a 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). “The certification of
facts under section 636(e) serves to determine whether the
moving party can adduce sufficient evidence to establish a
prima face case of contempt.” Euclid Chem. Co. v.
Ware, 2013 WL 6632436, *1 (S.D. Ohio Dec. 17, 2013)
(internal quotation marks and citation omitted). Thus the
magistrate judge's duty is simply to investigate whether
further contempt proceedings are warranted. The district
judge, upon certification of facts, is “then required
to conduct a de novo hearing at which issues of fact and
credibility determinations are to be made.” Bowens
v. Atlantic Maintenance Corp., 546 F.Supp.2d 55, 71
(E.D. N.Y. 2008).
CERTIFICATION OF FACTS
following facts are certified to the District Judge: This
lawsuit was initiated to collect a debt for unpaid legal fees
from the defendant, who is the plaintiff's former
client. Initially, upon plaintiff's motion
(Docket No. 21), the clerk entered default judgment against
the defendant on August 3, 2009, in the amount of $218,
942.11. By order entered September 2, 2009, the
defendant's motion to vacate the default judgment (Docket
No. 37) was denied. By order entered September 18, 2009
(Docket No. 42), the court granted the plaintiff's motion
to alter or amend (Docket No. 33), and awarded the plaintiff
an additional $38, 215.82, plus expenses, costs and
reasonable attorney's fees in the amount of $21, 567.55,
for a total judgment against the defendant in the amount of
$278, 725.48. See also orders entered September 2,
2009 (Docket No. 39), and February 14, 2011 (Docket No. 65),
and memorandum entered January 13, 2012 (Docket No. 80) for
more details relating to the background of this case.
second phase of this litigation began thereafter with the
plaintiff's attempts to engage in post-judgment
discovery, which consumed substantial time and resources of
the parties and the court. See Report and
Recommendation issued March 13, 2014 (Docket No. 96),
Memorandum and Order entered on March 2, 2015 (Docket No.
154), and transcript of June 12, 2015 show cause hearing
(Docket No. 171) for more details relating to this part of
instant motion is at least a continuation of the second
phase, if not a distinct third phase, of this litigation. On
November 22, 2016, the plaintiff filed another motion to
compel answers to post-judgment discovery (Docket No. 183),
which was referred to the Magistrate Judge for disposition
(Docket No. 184). The defendant was directed to file a
response to the motion to compel (see Order at
Docket No. 187), which the defendant failed to do. The motion
to compel was therefore granted on its merits as well as
based on the absence of any timely response by the defendant.
The January 4, 2017 order granting the motion to compel
(Docket No. 189) required the defendant to provide the
requested discovery by no later than February 3, 2017. When
the defendant failed to comply with the January 4 order
compelling discovery responses by the February 3 deadline,
the plaintiff filed, on February 7, 2017, a motion to have
the defendant held in contempt (Docket No. 193).
this same time, orders sent to the defendant by the clerk by
certified mail were returned as undeliverable or unclaimed
(see Docket Nos. 191, 192, 194). However, the
defendant was clearly aware of the proceedings, because he
sent an email to the court on February 8, 2017, requesting an
extension of the time to respond to the plaintiff's
post-judgment discovery (Docket No. 196). The defendant was
allowed the requested extension and given until March 3, 2017
to provide complete discovery responses (Docket No.
195). The defendant was also admonished that his
email communications with the court are improper. This was at
least the second such admonition. See Order entered
January 13, 2012 (Docket No. 80).
the defendant failed to provide the discovery responses as
ordered by the March 3 deadline, the plaintiff renewed its
motion for contempt (Docket No. 197) on March 15, 2017.
Although the defendant failed to file any response to the
motion for contempt, in an email to the plaintiff's
attorney, dated April 11, 2017, the defendant affirmatively
stated that the requested discovery had been answered, was
being copied, and would be received by the plaintiff's
attorney the following week (Docket No. 198).
10, 2015, the plaintiff filed a motion to ascertain status
(Docket No. 199) of the renewed motion for contempt to advise
the court that contrary to the defendant's statements in
his April 11, 2017 email, no discovery responses were
provided to the plaintiff's counsel. The renewed motion
for contempt and the ...