Summary
applying test to failure to comply with subpoena in Rule 45(g) context
Summary of this case from Dunne v. Coan (In re Dunne)Opinion
09-cv-0683(SJF)(AKT)
05-06-2016
THOMAS GESUALDI, et al., as Trustees and Fiduciaries of the Local 282 Welfare, Pension, Annuity, Job Training, and Vacation and Sick Leave Trust Funds, Plaintiffs, v. HARDIN CONTRACTING INC., Defendant.
ORDER
On January 2, 2012, plaintiffs served Dino Harrison, the registered agent of defendant Hardin Contracting Inc., with a subpoena, dated December 12, 2011, for document production and appearance at a deposition. On June 26, 2012, upon Dino Harrison's failure to comply with the subpoena, the Honorable Thomas C. Platt, United States District Judge, ordered Dino Harrison to respond to the document requests in the subpoena on or before July 18, 2012 and to appear for a deposition on July 26, 2012.
The subpoena at issue required Dino Harrison to produce certain documents and appear for a deposition at the Local 282 Funds Office in Lake Success, New York. (See Docket Entry ["DE"] 9, Ex. B).
On August 27, 2013, upon Dino Harrison's failure to comply with the June 26, 2012 order, Judge Platt: (1) ordered Dino Harrison (a) to respond to the document requests in the subpoena so that his response was received at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605, on or before September 27, 2013, and (b) to appear for a deposition at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605 at 10:00 a.m. on October 8, 2013; and (2) cautioned Dino Harrison that his failure to produce the requested documents or to appear for the deposition as set forth therein may serve as grounds for finding him in contempt and would subject him to civil and criminal penalties.
Although the subpoena and Judge Platt's June 26, 2012 Order required Dino Harrison to produce the documents and appear for a deposition in Lake Success, New York, Judge Platt granted plaintiffs' request in their August 2013 application to compel Dino Harrison to produce the documents and appear for a deposition at the offices of their new counsel in White Plains, New York.
After Dino Harrison failed to comply with Judge Platt's August 27, 2013 Order, i.e., by failing to produce the documents requested in the subpoena and to appear for the deposition on October 8, 2013 at 10:00 a.m., plaintiffs moved for an order holding Dino Harrison in contempt or, in the alternative, directing him to respond to the document requests in the subpoena and to appear for a deposition. By Order dated December 15, 2014, I, inter alia, (1) directed Dino Harrison (a) to respond to the document requests in the subpoena, dated December 12, 2011, so that his response was received at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605, on or before January 27, 2015, and (b) to appear for a deposition at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605 at 10:00 a.m. on February 10, 2015; and (2) cautioned Dino Harrison (a) that his failure to produce the requested documents or appear for the deposition in accordance with that Order would be held as contempt pursuant to Rule 45(g) of the Federal Rules of Civil Procedure and (b) that he would be ordered to pay plaintiffs their reasonable expenses, including attorney's fees, caused by his failure to comply with the subpoena and orders of this Court. Plaintiffs served a copy of the December 15, 2014 Order upon Dino Harrison by personal service on December 15, 2014. (DE No. 22).
This case was reassigned to me on September 15, 2014.
Dino Harrison failed to respond to the document requests in the subpoena, dated December 12, 2011, or to appear for the deposition on February 10, 2015 as directed by the December 15, 2014 Order. (See Declaration of Jonathan Bardavid ["Bardavid Decl."], ¶ 13 and Ex. H). Plaintiffs now move pursuant to Rule 45(g) of the Federal Rules of Civil Procedure and Local Civil Rule 83.6 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York for an order holding Dino Harrison in civil contempt and requiring him to pay them their reasonable attorneys' fees and costs in attempting to secure the production of the subpoenaed documents and his appearance at a post-judgment deposition. Although plaintiffs served the motion upon Dino Harrison on July 28, 2015, and filed it as unopposed on November 11, 2015, Dino Harrison has not responded to the motion to date.
"A court may hold a party in contempt if (1) the order the party failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted to comply in a reasonable manner." CBS Broad. Inc. v. FilmOn.com, Inc., 814 F.3d 91, 98 (2d Cir. 2016); accord Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004). Since plaintiffs have submitted clear and convincing proof that Dino Harrison has failed, without adequate excuse, to obey the subpoena dated December 12, 2011 and this Court's various orders related to it, all of which were clear and unambiguous, the branch of their motion seeking to hold Dino Harrison in civil contempt is granted and Dino Harrison is held in contempt pursuant to Rule 45(g) of the Federal Rules of Civil Procedure.
"Civil sanctions have two purposes: to coerce compliance with a court order and to compensate a plaintiff." CBS, 814 F.3d at 101; see also Local 28 of Sheet Metal Workers' Int'l Ass'n v. E.E.O.C., 478 U.S. 421, 443, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986) ("[S]anctions in civil contempt proceedings may be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained." (quotations and citation omitted)). Accordingly, plaintiffs' request to recover the reasonable attorneys' fees and costs they incurred in attempting to secure the production of the subpoenaed documents and Dino Harrison's appearance at a post-judgment deposition is granted.
However, although plaintiffs seek attorneys' fees and costs in the total sum of seven thousand one hundred thirty-two dollars and two cents ($7,132.02), (see Bardavid Decl., ¶ 14), their contemporaneous time records, (id., Ex. I), demonstrate that they only incurred attorneys' fees in the total amount of four thousand five hundred one dollars and twenty-five cents ($4,501.25) and costs in the total amount of one thousand three hundred fourteen dollars and ninety-one cents ($1,314.91). Accordingly, on or before June 10 , 2016 , Dino Harrison shall pay plaintiffs, by their attorneys, Trivella & Forte LLP, reasonable attorneys' fees and costs in the total sum of five thousand eight hundred sixteen dollars and sixteen cents ($5,816.16) as sanctions for his civil contempt pursuant to Rule 45(g) of the Federal Rules of Civil Procedure.
Five (5) of the first six (6) entries of the time records submitted by plaintiffs delineate the costs expended by them in attempting to secure the production of the subpoenaed documents and Dino Harrison's appearance at a post-judgment deposition. It appears that plaintiffs erroneously included those costs in the total amount of attorneys' fees they sought. --------
Moreover, Dino Harrison is directed to respond to the document requests in the subpoena, dated December 12, 2011, a copy of which is attached hereto, so that his response is received at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605, on or before June 10 , 2016 ; and to appear at the offices of Trivella & Forte, LLP, 1311 Mamaroneck Avenue, Suite 170, White Plains, NY 10605 for a deposition on June 24 , 2016 at 10:00 a.m. , or another mutually agreeable date prior to June 24, 2016.
FAILURE TO COMPLY WITH ANY PROVISION OF THIS ORDER WILL SUBJECT DINO HARRISON TO A FURTHER FINDING OF CONTEMPT AND SANCTIONS FOR THAT CONTEMPT INCLUDING THE IMPOSITION OF FINES IN THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00) PER WEEK FOR EACH WEEK THAT HE REMAINS NONCOMPLIANT, PAYABLE TO PLAINTIFFS, BY THEIR COUNSEL, TRIVELLA & FORTE, LLP, SUBJECT TO ESCALATION ON FURTHER APPLICATION, INCARCERATION, IMPOSITION OF FURTHER COSTS AND ATTORNEYS' FEES AND SUCH OTHER RELIEF AS MAY BE DEEMED APPROPRIATE.
Dino Harrison's payment of plaintiffs' reasonable attorneys' fees and costs in the total sum of five thousand eight hundred sixteen dollars and sixteen cents ($5,816.16) and production of the documents requested in the subpoena, dated December 12, 2011, on or before June 10 , 2016 , and his appearance for a deposition as provided herein on or before June 24 , 2016 , will operate to purge the contempt.
Plaintiffs shall serve a copy of this Order upon Dino Harrison by personal service on or before May 9, 2016 and file proof of such service with the Court. SO ORDERED.
s/ Sandra J. Feuestein
SANDRA J. FEUERSTEIN
United States District Judge Dated: May 6, 2016
Central Islip, New York
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