WELDON DRAYTON v. COUNTY OF SUFFOLK DETECTIVE THEODORE LAMONICA SPECIAL INVESTIGATOR STANLEY CARTER ASSISTANT DISTRICT ATTORNEY LUIGI BELCASTRO AND ASSISTANT DISTRICT ATTORNEY ANDREW WEISS (2023)

REPORT AND RECOMMENDATION

Presently before the Court is Plaintiff's motion for contempt at Electronic Case File No. (“ECF No.”) 53. On November 30, 2023, Plaintiff moved for the undersigned to certify facts finding non-party Austin Lehman in civil contempt of court. Id. For the following reasons, the undersigned respectfully recommends that Judge Brown find Mr. Lehman in contempt of court for failure to comply with court orders, and thus grant Plaintiff's motion.

“It is well-settled that federal courts have inherent power to punish contempt.” Ahamed v. 563 Manhattan Inc., No. 19CV6388, 2023 WL 4986364, at *4 (E.D.N.Y. July 6, 2023), report and recommendation adopted in part, No. 19-CV-6388, 2023 WL 6283280 (E.D.N.Y. Sept. 26, 2023) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991); Ex parte Robinson, 86 U.S. 505, 510 (1873). Under Rule 45 of the Federal Rules of Civil Procedure, a 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.” Fed. R. Civ. P. 45(g); see also Ahamed, 2023 WL 4986364 at *4 (explaining that “Rule 45 grants the court the power to hold a party in contempt ‘simply on the basis of failure to comply with a subpoena’ ”) (citation omitted). This inherent power may only be exercised if “ ‘(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner.’ ” Ahamed, 2023 WL 4986364 at *4 (quoting Next Invs., LLC v. Bank of China, 12 F.4th 119, 128 (2d Cir. 2021)).

Under the Federal Magistrates Act, 28 U.S.C. § 636(e), federal magistrate judges are authorized to exercise contempt authority only in certain limited circumstances. “These include summary criminal contempt authority ․ as well as criminal contempt and civil contempt authority in misdemeanor cases and cases where the magistrate judge presides with the consent of the parties. 28 U.S.C. §§ 636(e)(3), (4).” Ahamed, 2023 WL 4986364 at *5. In all other instances where a person has committed an act constituting a contempt in a proceeding before the magistrate judge, the Act sets forth 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).

“In certifying the facts under Section 636(e), the Magistrate Judge's role is ‘to determine whether the moving party can adduce sufficient evidence to establish a prima facie case of contempt.’ ” Ahamed, 2023 WL 4986364 at *5 (citing Church v. Steller, 35 F. Supp. 2d 215, 217 (N.D.N.Y. 1999)). In other words, the magistrate judge has an obligation to certify whether: (1) the order the contemnor failed to comply with is clear and unambiguous; (2) the proof of noncompliance is clear and convincing; and (3) the contemnor has not diligently attempted to comply in a reasonable manner. See Next Invs., LLC, 12 F.4th 119, 128.

Applying this caselaw in the instant case, the undersigned hereby certifies the following facts. On November 16, 2023 the Court so-ordered a subpoena for Mr. Lehman to appear for a deposition on November 30, at 10:00AM. November 16, 2023 Order. Mr. Lehman did not appear for that deposition. See ECF No. 53 at 1 (“Austin Lehman has once again failed to appear for his deposition, this time in contravention of Your Honor's order.”). Subsequently, on December 1, 2023, the Court ordered Mr. Lehman to show cause at a conference set for December 8, 2023. December 1, 2023 Order. Mr. Lehman failed to appear for that conference (which was conducted by telephone). ECF No. 56. At the conference, the Court gave Mr. Lehman “one final opportunity to respond to the Court's 12/1/2023 Order to Show Cause by 12/14/2023.” Id. Mr. Lehman again failed to respond to this Court's Order.

Regarding the first contempt element, the undersigned respectfully recommends that the Court's November 16, 2023 so ordered subpoena, December 1, 2023 order to show cause, and December 8, 2023 order to show cause were “clear and unambiguous” court orders. See Ahamed, 2023 WL 4986364 at *6-7 (finding that so ordered subpoenas to appear for depositions were “clear and unambiguous court orders”); Hunter TBA, Inc. v. Triple V. Sales, 250 F.R.D. 116, 117 (E.D.N.Y. 2008) (finding that “the subpoena duces tecum requiring [defendant] to appear and to produce evidence was clear and unambiguous.” (internal quotations omitted)). Therefore, the undersigned recommends that Plaintiff has satisfied the first element required to certify a finding of civil contempt.

On the second and third elements, the evidence provided by Plaintiff demonstrates clear and convincing proof of Mr. Lehman's failure to diligently attempt to comply in a reasonable manner. First, Plaintiff has filed multiple affidavits of service, demonstrating that each of the Court's Orders have been served on Mr. Lehman. See, e.g., ECF No. 53-1; ECF No. 55; ECF No. 57. This evidences that Mr. Lehman was served and made aware of his obligations pursuant to the Court's Orders. See Ahamed, 2023 WL 6283280 at *7. The Court then provided Mr. Lehman with the opportunity to explain his noncompliance with the subpoena at the December 8, 2023 Show Cause hearing, where Mr. Lehman failed to appear. See DE 56. Finally, the Court gave Mr. Lehman a final chance to show cause by December 14, 2023, which Mr. Lehman once again failed to do. To date, the Court has not heard from Mr. Lehman. This pattern of non-responsiveness demonstrates that Mr. Lehman has made no reasonable attempt to comply with this Court's Orders. See Ahamed, 2023 WL 4986364 at *7 (recommending contempt where a non-party “failed to appear for the Show Cause Hearing, and [who] the Court ha[d] not heard from [ ] to date.”). Therefore, the undersigned recommends that Plaintiff has satisfied the second and third elements to certify a finding a civil contempt.

Accordingly, the undersigned respectfully recommends that Mr. Lehman be held in contempt of court for his failure to comply with this Court's November 16, 2023 so ordered subpoena and that sanctions be imposed.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge Brown. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 154-55 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc., 338 F. App'x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995).

SO ORDERED:

LEE G. DUNST United States Magistrate Judge