United States District Court, E.D. California
VELDEMETRIC R. THOMAS, Plaintiff,
THE HOME DEPOT, U.S.A., INC., et al., Defendant.
ORDER TO SHOW CAUSE RE CONTEMPT
ALLISON CLAIRE, Magistrate Judge.
This case is before the undersigned pursuant to Local Rule 302(c)(1), plaintiff having been left in propria persona following her discharge of (or abandonment by) counsel David Springfield. See ECF Nos. 29, 32. On November 3, 2014, the undersigned sanctioned Mr. Springfield for multiple failures to follow the applicable rules and the orders of the court, and ordered him to show cause why further sanctions should not be imposed. ECF No. 27. Mr. Springfield's response, ECF No. 30, is now before the court. For the reasons which follow, civil contempt proceedings are warranted. Accordingly, the undersigned hereby certifies facts regarding contempt to U.S. District Judge Troy L. Nunley, and orders Mr. Springfield to show cause before Judge Nunley why he should not be held in contempt.
CERTIFCATION PROCEDURE AND CONTEMPT STANDARDS
Magistrate judges must refer contempt proceedings to district judges. See 28 U.S.C. § 636(e); Bingman v. Ward, 100 F.3d 653, 656-57 (9th Cir. 1996). A magistrate judge may investigate whether further contempt proceedings are warranted and certify such facts to a district judge. 28 U.S.C. § 636(e); see also Alcalde v. NAC Real Estate Invs. & Assignments, Inc., 580 F.Supp.2d 969, 971 (C.D. Cal. Aug. 4, 2008). A magistrate judge may not, however, conduct a contempt hearing in a civil case absent consent jurisdiction.
The Federal Magistrates Act establishes a certification procedure whereby:
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 under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. 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, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.
28 U.S.C. § 636(e)(6)(B)(iii); see also Bowens v. Atl. Maint. Corp., 546 F.Supp.2d 55, 71-72 (E.D.N.Y. 2008).
Under this process, the magistrate judge functions to certify the facts and not to issue an order of contempt. Bingman, 100 F.3d at 656-57. By certifying facts under Section 636(e), the magistrate judge is simply attesting that further contempt proceedings are warranted. See 28 U.S.C. § 636(e); Gomez v. Scoma's Inc., No. C-94-4452-VRW JSB, 1996 WL 723082, at *3 (N.D. Cal. Dec. 2, 1996). The certification of facts is typically included in an order to show cause why a contempt citation should not issue, which also provides notice of a date for the hearing. 28 U.S.C. § 636(e); Alcalde, 580 F.Supp.2d at 971 (citing Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before Trial at ¶ 11:2316). The district court, upon certification of the facts supporting a finding of contempt, is then required to conduct a de novo hearing at which issues of fact and credibility determinations are to be made. See Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 907-08 (3d Cir. 1992) (holding that it was error for the district court not to conduct a de novo hearing after the magistrate judge issued a certification of contempt).
Where the relief sought in contempt proceedings involves compulsory and compensatory sanctions, including conditional confinement employed to compel compliance, then the proceeding is for civil contempt. See Shillitani v. United States, 384 U.S. 364, 369-70 (1966); United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980). To find civil contempt, "the court need only (1) have entered a clear and unambiguous order, (2) find it established by clear and convincing evidence that the order was not complied with, and (3) find that the alleged contemnor has not clearly established his inability to comply with the terms of the order." Huber v. Marine Midland Bank, 51 F.3d 5, 10 (2d Cir. 1995). A civil contempt finding does not require a willful violation of the order in order for the court to find civil contempt. Asay, 614 F.2d 661; see also United States v. Laurins, 857 F.2d 529, 534 (9th Cir. 1988).
The undersigned certifies the following facts pursuant to 28 U.S.C. § 636(e)(6)(B)(iii):
David Springfield, Esq. ("Springfield") was retained by plaintiff Veldemetric Thomas to pursue this employment discrimination case.
Springfield filed the complaint on October 28, 2013. He initially met and conferred with opposing counsel pursuant to Fed.R.Civ.P. 26(a), but subsequently failed to respond to a settlement offer. See ECF No. 11 (Defendant's Scheduling Conference Report) at 1, 6.
Springfield thereafter failed to participate in the preparation of a joint scheduling conference statement. Id. at 1-2. On September 8, 2014, the district judge ordered Springfield to file a response to defendant's scheduling conference statement. ECF No. 12. Springfield failed to do so.
On September 17, 2014, Springfield was sanctioned in the amount of $250.00 for failing to respond the defendant's scheduling report. ECF No. ...