Hurdles to Contempt Findings in Federal Court

I suspect many lawyers have believed at one point or another that an opposing counsel or party committed some form of contemptuous act.  If so, what can be done about it?  What standards apply?

Locally, Taddeo v. American Invsco Corp. provides a quick guide to the various options if you believe contempt has occurred and the standards that apply.[1]  To summarize, the plaintiff obtained a judgment against Koval Flamingo, LLC.  The court then granted Plaintiff’s unopposed motion to require Koval Flamingo to appear for a judgment debtor examination and produce documents.  The judgment debtor examination was noticed, but Koval Flamingo’s lawyer appeared but “a representative of Koval prepared to testify did not appear.”  I suspect the phrasing means a company representative did attend, but was not prepared to testify.  The plaintiff then sought six sanctions:  1) the debtor’s post-trial motions and oppositions should be struck; 2) a specific person should be held in criminal contempt and imprisioned until he personally appeared for a judgment debtor examination; 3) that the lawyer’s pro hac vice admission be revoked; 4) that two individuals “be held in criminal contempt and imprisoned for destroying documents in violation of a state court temporary restraining order;” 5) that the judgment against Koval Flamingo be doubled; and 6) an award of “attorneys’ fees and costs for bringing the motion for judgment debtor examination and preparing for the examination.”  All of this relief was denied, for several reasons.

First, the standards to qualify for contempt sanctions are really high.  Among other requirements for civil contempt, “the moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court. The burden then shifts to the contemnors to demonstrate why they were unable to comply.”[2]  A non-party may also be found in civil contempt, including corporate representatives, if certain facts are demonstrated.  Criminal contempt is even more difficult and may actually require a complete criminal trial, with all of its accompanying procedural safeguards.

Next, the each individual request, in some form or another, because the briefing was not sufficiently specific or supported. I have not read the briefs and have no comment whether it was sufficient. The point is that the court wanted very specific, very clear briefing on the points and did not think that had been provided.

There were also individual reasons why each sanction was denied. The request to strike post-trial motions and oppositions was denied in part because “in addressing violations of discovery orders, courts are generally reluctant to impose novel sanctions of a sort not mentioned in Rule 37(b)(2).”  The court found the plaintiff had not explained why the facts supporting the motion made this sanction appropriate and no legal authority supporting this sanction.

The second request, to imprison a specific person, was denied because it was unclear whether civil or criminal contempt was sought.  The court seemed to base at least part of this finding upon the fact that plaintiff had no addressed the standards for either in briefing.

The third request, to revoke a pro hac vice admission, was denied for a variety of reasons, but the briefing was apparently an important one.  Plaintiff’s briefing “failed to clearly articulate each instance of misconduct and support their allegations with evidentiary support.”  It also “failed to provide even the most basic standards that apply to a determination of whether an attorney’s pro hac vice status should be revoked.”

The fourth request for criminal contempt for destroying documents was was rejected for a similar briefing related reason, but also becuase the order at issue had been entered in a state court, not the federal court where sanctions were sought. The fifth and sixth requests were denied because, again, the briefing was unclear to the court.

Again, the briefing is not the point of this post. The point is instead that the standards to qualify for contempt sanctions are quite high.  If a party believes those standards are met, then it needs to be very specific in what it seeks and both the factual and legal support for it.

[1] 2:12-cv-01110, 2015 U.S. Dist. LEXIS 21989 (D. Nev. Feb. 20, 2015).
[2] F.T.C. v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1211 (9th Cir. 2004).