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King & Ballow v. Thompson

United States District Court, M.D. Tennessee, Nashville Division

November 2, 2017

KING & BALLOW
v.
MICHAEL S. THOMPSON

          The Honorable Aleta A. Trauger, United States District Judge.

          REPORT AND RECOMMENDATION AND CERTIFICATION OF FACTS

          BARBARA D. HOLMES United States Magistrate Judge.

         Pending 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).

         A. MAGISTRATE JUDGE'S AUTHORITY

         Other 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).

         B. CERTIFICATION OF FACTS

         The 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.[1] 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.

         The 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 the litigation.

         The 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).

         During 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).[2] 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).

         When 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).[3]

         On May 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 ...


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