United States District Court, D.
April 20, 2012.
Before the court is plaintiff Walter Rausch's Motion For Order To Show Cause Why Defendant Should Not Be Held In Contempt. (#38). Defendant did not file an Opposition. The court held a hearing on April 20, 2012. During the hearing, defense counsel David Hall renewed his Request To Withdraw As Counsel.
On November 2, 2011, plaintiff obtained a judgment against defendant World Series of Golf, Inc. (hereinafter "WSOG"). (#27). On January 13, 2012, the plaintiff filed a motion for judgment debtor exam. (#33). Defendant filed an opposition (#34), and plaintiff did not file a reply. On January 19, 2012, defense counsel filed a motion to withdraw as counsel, asserting that counsel's contact at WSOG is leaving, and counsel no longer has authority to continue representing defendant and has been asked to withdraw. (#35).
On February 2, 2012, the court issued two orders: One denying without
prejudice defense counsel's motion to withdraw (#36), and one granting in part
and denying in part the plaintiff's motion for judgment debtor exam (#37). With
regard to the motion to withdraw, the court held that "[w]hile it is true that judgment was entered in this action,
there are several outstanding motions (#29, #30, and #33) before this court,
including a motion to amend judgment filed by defendant World Series of Golf,
Inc. (#29)," and counsel has not indicated that replacement counsel has
been retained. (#36). The court held that counsel
could file a renewed motion to withdraw or a stipulation to substitute if
defendant retained new counsel.
With regard to the motion for judgment debtor exam, the court ordered
"defendant World Series of Golf, Inc. [to] appear on February 22, 2012, at
10:00 a.m. at the offices of Esquire Las Vegas,
On February 17, 2012, counsel for defendant sent a letter to plaintiff's
counsel stating that he is "not aware of any officers of WSOG that reside
in Clark County or the State of Nevada," and that he has "not been
able to procure a representative of WSOG to appear at the debtor's
examination." (#38 Exhibit A). Counsel also
stated that he was tying to provide advance notice so plaintiff's counsel could
avoid unnecessary costs associated with hiring a court reporter or otherwise
preparing for the examination.
On February 21, 2012, plaintiff's counsel called defense counsel and
informed him that counsel would be proceeding with the judgment debtor exam on
February 22, 2012. (#38 Affidavit of Plaintiff's Counsel).
On February 22, 2012, plaintiff's counsel attempted to take the exam of
defendant, but neither an agent nor a representative of WSOG appeared.
Plaintiff asserts in his motion that defendant should not be permitted to
ignore the court's order, and that the court should order defendant to appear
before the court and "answer in civil contempt proceedings pursuant to
this [c]ourt's power to hold the [d]efendant in contempt."
"A judgment debtor who is regularly served with an order issued pursuant to this section, and who fails to appear at the time and place specified in the order, may be punished for contempt by the judge issuing the order." NRS 21.270(3). Pursuant to 18 U.S.C. § 401(3), "[a] court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as— [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command." If a moving party seeks an order of contempt from the court, they have the burden to establish that (1) the respondent violated the court order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence. United States v. Bright, 596 F.3d 683, 694 (9th Cir. 2010).
Pursuant to 28 U.S.C. §636(e), this court does not have the authority to
enter an order of contempt. Rather, as the parties have not consented to the
magistrate judge presiding over all proceedings in this action, only the
district judge has the authority to enter a finding of contempt. See 8
U.S.C. §636© and (e)(4). Under §636(e)(6)(B)(ii) and
(iii), if "the act that constitutes criminal contempt occurs outside the
presence of the magistrate judge," or "the act constitutes civil
contempt," "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 . . ., an order requiring such person to
appear before a district judge upon a day certain to show cause why that person
would not be adjudged in contempt by reason of the facts so certified." 28
U.S.C. §636(e)(6)(B)(ii) and (iii). Upon such a
certification, 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," the district judge may punish such person.
"Civil contempt sanctions, or those penalties designed to compel future
compliance with a court order, are considered to be coercive and avoidable
through obedience, and thus may be imposed in an ordinary civil proceeding upon
notice and an opportunity to be heard." International
Union, United Mine Workers of America v. Bagwell,
512 U.S. 821, 827 (1994). Criminal contempt is more punitive, and is a
means to vindicate the authority of the court. Id at
828. A "flat, unconditional fine . . . announced
after a finding of contempt is criminal if the contemnor has no subsequent
opportunity to reduce or avoid the fine through compliance."
The court hereby certifies that the acts as described in this order
constituting contempt have occurred. 28 U.S.C. 636(e)(6)(B)(ii)
and (iii). The court ordered defendant to appear at the judgment debtor exam on
February 22, 2012. (#37). On February 2, 2012, at 4:10
p.m., defense counsel received notice of the order requiring defendant to
appear.
The court recommends that the District Judge find the defendant in criminal
contempt, and sanction defendant $2,000 for its failure to obey the court's
order (#37). International
Union, United Mine Workers of America, 512 U.S.
828-29. The court also recommends that the District Judge order plaintiff
to schedule the judgment debtor exam to occur at The Lloyd D. George Courthouse
in a courtroom to be determined at a date and time certain on or before May 10,
2012, and order the defendant to appear. The court also recommends that, if
defendant fails to appear at the judgment debtor exam, the District Judge find defendant
in civil contempt, and sanction defendant $500 a day until a representative of
WSOG appears at the judgment debtor exam.
As previously stated, the court denied without prejudice defense counsel's
motion to withdraw. (#36). The court held that
permitting counsel to withdraw would result in delay, as the court had several
outstanding motions (#29, #30, and #33) before it, including one filed by
defendant.
Based on counsel's representations in his motion to withdraw (#35) and
during the hearing, and the fact that no delay would result, the court will
permit defense counsel to withdraw. Local
As a corporation may not appear in Federal Court without counsel, and the court is permitting Mr. Hall to withdraw, defendant is ordered to retain counsel within fourteen (14) days from the entry of this court's order. Failure to retain counsel will result in further sanctions. See Employee Painters' Trust v. Ethan Enterprises, Inc., 480 F.3d 993, 998 (9th Cir.2007).
Accordingly, and for good cause shown,
IT IS ORDERED that Walter Rausch's Motion For Order To Show Cause Why Defendant Should Not Be Held In Contempt (#38) is GRANTED. The court hereby certifies the acts as discussed above constituting contempt have occurred pursuant to 28 U.S.C. §363(e)(6)(B)(ii) and (iii).
IT IS RECOMMENDED that the district judge impose a $2,000 criminal sanction against defendant for its failure to obey the court's order (#37), order plaintiff to schedule the judgment debtor exam to occur at The Lloyd D. George Courthouse in a courtroom to be determined at a date and time certain on or before May 10, 2012, and order the defendant to appear at the exam. The court also recommends that, if defendant fails to appear at the judgment debtor exam, the District Judge find defendant in civil contempt, and sanction defendant $500 a day until a representative of WSOG appears at the judgment debtor exam.
IT IS THEREFORE ORDERED that a hearing is scheduled for April 26, 2012, at
9:00 a.m. before District Judge Kent J. Dawson in Courtroom 6D at The Lloyd D.
George Courthouse,
IT IS FURTHER ORDERED that defense counsel David Hall's Request To Withdraw As Counsel is GRANTED, conditioned upon his compliance with the court's directive above. Defendant shall retain counsel within fourteen (14) days from the entry of this order. Failure to retain counsel will result in further sanctions.