Opinion
22-61509-MC-ALTONAGA/Strauss
11-15-2022
VINCENZO OPPEDISANO, Petitioner, v. CHARLES A. NICHOLS Respondent.
ORDER
CECILIA M. ALTONAGA CHIEF UNITED STATES DISTRICT JUDGE
On August 12, 2022, Petitioner, Vicenzo Oppedisano, filed this action in connection with a Southern District of New York action for fraud, after Respondent, Charles A. Nichols, a Florida-based certified public accountant, failed to respond to third-party discovery requests from Petitioner. (See Mot. to Compel [ECF No. 1]). On August 15, 2022, the Court entered an Order [ECF No. 5] referring all filings in this action to Magistrate Judge Jared M. Strauss. Magistrate Judge Strauss entered his Report and Recommendation on Motion for Contempt and Sanctions [ECF No. 20] on October 28, 2022
As background, the Magistrate Judge entered an Order on Petitioner's Motion for Contempt on September 8, 2022 [ECF No. 11], requiring Respondent, by September 22, 2022, to “comply with the subpoena and produce any remaining documents in his possession, custody, or control .... [and] certify that Respondent has completed a diligent and good-faith search for such documents.” (Id. 4 (alterations added)). In the Order, the Magistrate Judge warned that Respondent “may be sanctioned and/or held in contempt of court if he fail[ed] to comply[.]” (Id. 4 (alterations added)). After Respondent failed to comply with the September 8, 2022 Order, Petitioner filed a Motion for Sanctions and for Civil Contempt (the “Present Motion”) [ECF No. 14] on October 3, 2022.
In the Present Motion, Petitioner argues that Respondent failed to produce any documents responsive to the subpoena and did not certify that he performed a diligent search for records. (See Present Mot. 2). According to Respondent, he was not able to comply with the Order because his counsel was unable to make contact with him despite repeated attempts. (See Resp. to Order to Show Cause [ECF No. 18] 1).
To date, neither party has filed objections to the Magistrate Judge's October 28, 2022 Report. In the Report, the Magistrate Judge recommends: (1) the Present Motion be granted in part and denied in part; (2) Respondent be found in civil contempt and Petitioner be awarded reasonable attorney's fees and costs incurred in filing his Motion for Contempt as a sanction for Respondent's failure to comply with the September 8, 2022 Order; (3) Petitioner be ordered to comply with Southern District of Florida Local Rule 7.3 before filing any motion for fees and expenses; and (4) all other requested relief in the Present Motion and the October 26, 2022 Reply [ECF No. 19] be denied. (See id. 10).
When a magistrate judge's “disposition” has properly been objected to, district courts must review the disposition de novo. Fed.R.Civ.P. 72(b)(3). When no party has timely objected, however, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72 advisory committee's note to 1983 amendment (citations omitted). Although Rule 72 itself is silent on the standard of review, the Supreme Court has acknowledged that Congress's intent was to only require a de novo review when objections have been properly filed, not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate [judge]'s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” (alteration added)).
The undersigned has reviewed the Report, the record, and the applicable law to assure herself that no clear error appears on the face of the record. In light of that review, the undersigned agrees with the analysis and recommendations stated in the Magistrate Judge's Report and agrees with the Magistrate Judge's conclusions. Accordingly, it is
ORDERED AND ADJUDGED that the Report [ECF No. 20] is AFFIRMED AND ADOPTED as follows:
1. Respondent is found in civil contempt, and Petitioner is awarded reasonable attorney's fees and costs incurred in filing his Present Motion as a sanction. The amount of the award will be determined once Petitioner files his motion for fees and costs in compliance with Local Rule 7.3 and the motion is ripe for the Court's review. Petitioner shall not file a motion for fees and costs until the deadline for filing a notice of appeal has passed and any appeal is resolved.
2. All other relief requested in the Present Motion [ECF No. 14] and the Reply [ECF No. 19] is DENIED.
DONE AND ORDERED\