United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
YIM YOU UNITED STATES MAGISTRATE JUDGE.
move the court to order plaintiff and nonparty witness
William Osborn (“Osborn”) to show cause why they
should not be held in contempt for failing to comply with a
court order, to compel Osborn to sit for a deposition, to
extend related discovery deadlines, and to award
defendants' related attorney's fees and costs. Mot.
Order Show Cause 2, 9, ECF #164. The court finds this matter
suitable for decision without oral argument under LR
7-1(d)(1). For the reasons set forth below, the motion is
denied in part and granted in part.
parties tentatively agreed to hold Osborn's deposition on
June 20, 2019. Decl. Hans Huggler ¶¶ 3-5, ECF #165.
However, on May 31, 2019, defendants (and others) filed a
motion to enforce the Benacquisto class action settlement in
the District of Minnesota. See Motion to Enforce Class-Action
Settlement and Final Order and Judgment, Benacquisto, et
al. v. American Express Fin, et al.,
0:00-cv-01980-DSD-ECW (D. Minn. Aug. 21, 2000), ECF #603.
Thereafter, counsel in this case argued with each other about
noticing Osborn's deposition, and ultimately defendants
personally served Osborn with a subpoena on June 11, 2019.
Huggler Decl. ¶¶ 6-8, Ex. 6, ECF #165. Osborn told
defendants that he “object[ed] to the subpoena.”
Id., Ex. 7, at 1-2, 6-7, ECF #165. He reasoned that,
if the District of Minnesota granted defendants' newly
filed motion to enforce the Benacquisto settlement, it could
render this action moot or even expose plaintiff to sanctions
from the Minnesota court, so it made sense to postpone the
deposition until after that motion is resolved. Id.
at 1-2, 7. Defendants responded that the July 1, 2019
discovery deadline in this action was rapidly approaching and
they would seek appropriate relief from the court if Osborn
did not comply with the subpoena. Id. at 6. Osborn
represented that he would “attend and give his
deposition, but only upon a date that is mutually workable
for both of our offices, and that takes into account
[defendants'] efforts in Minnesota.” Id.
at 5. Plaintiff's counsel also expressed the challenges
of securing Minnesota counsel and responding to the Minnesota
motion while maintaining his current workload. Id.
Rule of Civil Procedure 45(g) provides that the court
“may hold in contempt a person who, having been served,
fails without adequate excuse to obey the subpoena or an
order related to it.” The rule is permissive. “If
the deponent disobeys the subpoena, the district court can
hold the deponent in contempt.” Sali v. Corona
Reg'l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018)
(citing FRCP 45(g)) (emphasis added). “The district
court has wide latitude in determining whether there has been
a contemptuous defense of its order.” Stone v. City
& Cty. of S.F., 968 F.2d 850, 856 (9th Cir. 1992),
as amend. on den. of reh'g (Aug. 25, 1992) (citation and
quotation marks omitted)).
civil litigation, it would be rare for a court to use
contempt sanctions without first ordering compliance with a
subpoena, and the order might not require all the compliance
sought by the subpoena.” FRCP 45 advisory committee
notes to the 2013 amendment. Generally, “[c]ontempt
proceedings are instituted by the issuance of an order to
show cause why a contempt citation should not issue and a
notice of a date for the hearing.” Alcalde v. NAC
Real Estate Invs. & Assignments, Inc., 580 F.Supp.2d
969, 971 (C.D. Cal. 2008).
“a civil contempt proceeding is a trial within the
meaning of [Rule] 43(a) rather than a hearing on a motion
within the meaning of [Rule 43(e), ] the issues may not be
tried on the basis of affidavits.” Pennwalt Corp.
v. Durand-Wayland, Inc., 708 F.2d 492, 495 (9th Cir.
1983) (quoting Hoffman ex rel N.L.R.B. v. Beer Drivers
& Salesmen's Local Union No. 888, 536 F.2d 1268,
1277 (9th Cir. 1976)) (quotation marks omitted). However,
when the material facts are undisputed, the court need not
conduct an evidentiary hearing. See Hoffman, 536 F.2d at 1277
(“A trial court may in a contempt proceeding narrow the
issues by requiring that affidavits on file be controverted
by counter-affidavits and may thereafter treat as true the
facts set forth in uncontroverted affidavits.”);
Scruggs v. Vance, No. 2:06-CV-0633 KJM KJN, 2011 WL
6368297, at *15 (E.D. Cal. Dec. 19, 2011) (“where the
affidavits offered in support of a finding of contempt are
uncontroverted, a full evidentiary hearing is not essential
to due process[, ] and the trial court may treat the facts
set forth in the uncontroverted affidavits as true”)
(citing Peterson v. Highland Music, 140 F.3d 1313,
1324 (9th Cir. 1998)); e.g., United States v.
Lonnen, No. 1:15MC44, 2016 WL 4194243, at *5 (M.D. N.C.
Aug. 8, 2016) (citing Hoffman and granting a motion for civil
contempt on uncontroverted affidavits and issuing an arrest
party moving for contempt bears the burden of establishing by
clear and convincing evidence that the contemnor has violated
a specific and definite order of the court.”
Bademyan v. Receivable Mgmt. Servs. Corp., No. CV
08-00519-MMM (RZx), 2009 WL 605789, at *2 (C.D. Cal. Mar. 9,
2009) (collecting cases). “Once the moving party shows
by clear and convincing evidence that the contemnor has
violated a specific and definite order of court, the burden
shifts to the contemnor to demonstrate that he or she took
every reasonable step to comply, and to articulate reasons
why compliance was not possible.” Id.
as the parties do not dispute any material facts, the court
need not hold an evidentiary hearing. Hoffman, 536
F.2d at 1277; Lonnen, 2016 WL 4194243, at *5;
Scruggs, 2011 WL 6368297, at *15. The court, therefore,
resolves the motion on the uncontroverted affidavits.
assuming defendants have met their burden of establishing by
clear and convincing evidence that Osborn refused to comply
with a valid subpoena commanding his attendance and
testimony, and even assuming Osborn has failed to demonstrate
that he took every reasonable step to comply with the
subpoena or to articulate reasons why compliance was not
possible, the court declines to exercise its contempt
authority at this time. The excuses that Osborn and
plaintiff's counsel have offered are meager. Their fear
of being sanctioned by the Minnesota court for complying with
this court's orders is hypothetical at best, and their
protestations that defendants have derailed this litigation
are similarly lacking.
defendants immediately moved for contempt proceedings and
sanctions- after commencing parallel litigation across the
country-without providing plaintiff's counsel with
courtesy notice of their intent to file. This was an
unwarranted overreaction. Considering the circumstances and
Osborn's lack of history of noncompliance, holding him in
contempt and awarding sanctions at this time would be
punitive and unhelpful in efficiently resolving the
underlying dispute. See Whittaker Corp. v. Execuair
Corp.,953 F.2d 510, 517-18 (9th Cir. 1992) (explaining
that while criminal contempt sanctions should punish defiance
and vindicate the ...