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Bademyan v. Receivable Management Services Corp.

March 9, 2009

HOVEK BADEMYAN, PLAINTIFF,
v.
THE RECEIVABLE MANAGEMENT SERVICES CORPORATION D/B/A RMS, DEFENDANT.



The opinion of the court was delivered by: Margaret M. Morrow, United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO HOLD ARAKSI BADEMYAN IN CONTEMPT

On February 11, 2009, the court granted defendant RMS's ex parte application for an order setting a hearing on its motion to hold Araksi Bademyan ("Mrs. Bademyan") in contempt.*fn1

I. FACTUAL & PROCEDURAL BACKGROUND

This case arises under the Fair Debt Collection Practices Act of 1978 ("FDCPA"), 15 U.S.C. § 1692 et seq., and California's Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), California Civil Code § 1788 et seq. In his first amended complaint, plaintiff Hovek Bademyan ("Bademyan") alleges that RMS, a consumer debt collection corporation, engaged in abusive, deceptive, and unfair debt collection practices while attempting to secure payment of a credit card debt.*fn2 Bademyan contends that, as a result of RMS's alleged unlawful debt collection activities, he has suffered emotional distress, including sleeplessness, loss of appetite, loss of weight, and loss of interest in life. Specifically, during his deposition, Bademyan testified that RMS's collection efforts caused emotional distress, leading him to visit a doctor and obtain a prescription.*fn3 Bademyan claimed that he could not remember the name of the doctor or the name of the prescribed medication, but stated that his mother, Mrs. Bademyan, could provide both pieces of information since she was the individual who had driven him to the doctor and picked up his medication from the pharmacy.*fn4

RMS sought to depose Mrs. Bademyan to verify Bademyan's emotional distress claim. Mrs. Bademyan was personally served with a deposition subpoena on November 10, 2008 and a notice to appear on November 21, 2008 at 10 a.m.*fn5 Mrs. Bademyan was given $64 in witness fees when served.*fn6 Nonetheless, she did not appear for her deposition on November 21.*fn7

RMS subsequently filed an ex parte application for an order specially setting a hearing on a motion to compel Mrs. Bademyan to appear for deposition.*fn8 After granting the ex parte application,*fn9 Magistrate Judge Ralph Zarefsky ordered Mrs. Bademyan to appear.*fn10 RMS served Mrs. Bademyan with a copy of Judge Zarefsky's order, a deposition subpoena, and a deposition notice on January 15, 2009.*fn11 The deposition was scheduled for January 22, 2009; once again, Mrs. Bademyan did not appear.*fn12 RMS then filed its ex parte application seeking an order specially setting a hearing on its motion to hold Mrs. Bademyan in contempt. As noted, the court granted RMS's ex parte application,*fn13 and directed Mrs. Bademyan to file any opposition no later than February 25, 2009. Mrs. Bademyan has not opposed RMS's motion to hold her in contempt.

II. DISCUSSION

A. Propriety of Civil Contempt Order

Courts have inherent power to enforce their orders through civil contempt. See Spallone v. United States, 493 U.S. 265, 276 (1990) (citing Shillitani v. United States, 384 U.S. 364, 370 (1966)). A district court has wide latitude in determining whether there has been a contemptuous defiance of one of its orders. Stone v. City of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992), cert. denied, 506 U.S. 1081 (1993). The Ninth Circuit's inquiry regarding contempt "has long been whether [contemnors] have performed 'all reasonable steps within their power to insure compliance' with the court's orders." Stone, 968 F.2d at 856 (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 404 (9th Cir. 1976), cert. denied, 430 U.S. 931 (1977)).

Rule 45(e) of the Federal Rules of Civil Procedure provides that a "court may hold in contempt a person who, having been served, fails without adequate excuse to obey [a] subpoena." FED.R.CIV.PROC. 45(e). "Even though subpoenas are issued by attorneys, they are issued on behalf of the Court and should be treated as orders of the Court." Higginbotham v. KCS Int'l, Inc., 202 F.R.D. 444, 455 (D. Md. 2001) (citing Advisory Committee Notes to Rule 45(a) ("Although the subpoena is in a sense the command of the attorney who completes the form, defiance of a subpoena is nevertheless an act of defiance of a court order and exposes the defiant witness to contempt sanctions")); Halawani v. Wolfenbarger, No. 07-15483, 2008 WL 5188813, *7 (E.D. Mich. Dec. 10, 2008) (same).

The 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. See Wolfard Glassblowing Co. v. Vanbragt, 118 F.3d 1320, 1322 (9th Cir. 1997) ("For Wolfard to succeed in its motion for civil contempt, it had to show by clear and convincing evidence that Zodiac violated the consent judgment beyond substantial compliance, and that the violation was not based on a good faith and reasonable interpretation of the judgment," citing In re Dual-Deck Video Cassette Antitrust Litigation, 10 F.3d 693, 695 (9th Cir. 1993)); Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989) ("As we have previously stated, civil contempt is appropriate when a party fails to comply with a specific and definite court order," citing Gifford v. Heckler, 741 F.2d 263, 265 (9th Cir. 1984)); Vertex Distributing v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982) ("We apply well-settled law. In a civil contempt proceeding, the contempt must be proved by clear and convincing evidence. Battaglia v. United States, 653 F.2d 419, 422 (9th Cir. 1981); United States v. Powers, 629 F.2d 619, 626 n. 6 (9th Cir. 1980). This requires more than does the preponderance of the evidence standard applicable in most civil cases. Battaglia, 653 F.2d at 422; Powers, 629 F.2d at 626, n. 6. . .").

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. See Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir. 1983) ("To satisfy this burden the individual appellants were required to show 'categorically and in detail' why they were unable to comply with the court's previous order," quoting United States v. Rylander, 656 F.2d 1313, 1318 (9th Cir. 1981), rev'd on other grounds, 460 U.S. 752 (1983)), cert. denied, 464 U.S. 1040 (1984). In assessing whether an alleged contemnor has taken "every reasonable step" to comply with the terms of a court order, the district court can consider (1) a history of noncompliance and (2) a failure to comply despite the pendency of a contempt motion. See Stone, 968 F.2d at 857. The contempt need not be willful, Perry v. O'Donnell, 759 F.2d 702, 704-06 (9th Cir. 1985), and a party's subjective intent is irrelevant. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949); Donovan, 716 F.2d at 1240. If, however, "a defendant's action 'appears to be based on a good faith and reasonable interpretation of (the court's order),' he should not be held in contempt." Vertex Distributing, 689 F.2d at 889 (quoting Rinehart v. Brewer, 483 F.Supp. 165, 171 (S.D. Iowa 1980)).

B. Mrs. Bademyan Has Violated Judge Zarefsky's January 5, 2009 Order Compelling Her to Appear for Deposition

RMS has adduced clear and convincing evidence that Mrs. Bademyan did not appear for her deposition scheduled on January 22, 2009. Mrs. Bademyan has not asserted that she was unable to comply with the January 5, 2009 order to appear for deposition, and the court must conclude, based on the present record, that she has not taken all reasonable steps to comply with the order. Accordingly, the court concludes that ...


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