United States District Court, D. Connecticut
JAMES A. HARNAGE
DR. WU, et al.
RULING ON PLAINTIFF'S SECOND MOTION FOR CONTEMPT
AND SANCTIONS RE: DISCOVERY ORDER #141 [DOC. #164]
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
plaintiff James A. Harnage (“plaintiff”) has
filed a “Second Motion for Contempt and Sanctions Re:
Discovery Order #141” asserting that defendants have
failed to produce certain documents on or before June 15,
2018, as ordered by the Court. See Doc. #164 at 1. Defendants
have filed no response to plaintiff's motion. On July 11,
2018, Judge Alvin W. Thompson referred plaintiff's motion
to the undersigned. [Doc. #170]. For the reasons set forth
below, the Court declines to certify facts to the district
judge as contemplated by 28 U.S.C. §636(e), and
DENIES plaintiff's “Second Motion
for Contempt and Sanctions Re: Discovery Order #141”
Court presumes familiarity with the general procedural and
factual background of this matter, and sets forth the
background only as relevant to the instant motion for
contempt and sanctions.
April 26, 2018, the Court held an in-person discovery
conference in this matter. See Docs. #140, #141. Following
that conference, on May 7, 2018, the Court issued a
Memorandum of April 26, 2018, Discovery Conference and Ruling
on Pending Motions (hereinafter the “Discovery
Memorandum and Order”). [Doc. #141]. In pertinent part,
the Court ordered:
Any documents ordered to be produced during the April 26,
2018, discovery conference, as memorialized herein, shall be
produced to plaintiff on or before June 15, 2018. In the
event defendants are unable to produce the documents by that
deadline, then a motion for extension of time must be filed
on the docket in compliance with the Local Rules.
Id. at 14 (emphases removed).
27, 2018, plaintiff filed the motion now before the Court.
[Doc. #164]. In that motion, plaintiff cites the above-quoted
portion of the Court's Discovery Memorandum and Order,
and asserts: “As of this pleading, the plaintiff has
not received a single document or meaningful response from
the defendants.” Id. at 1. Plaintiff asks that
the Court “grant an order finding defendants in
contempt and ordering sanctions accordingly, including,
finding that the facts, as alleged by the plaintiff be found
as true and uncontroverted.” Id. (sic).
days after plaintiff filed his motion, on July 3, 2018,
defendants filed a “Consent Motion for Extension of
Time Nunc Pro Tunc Re: Production of Documents.” Doc.
#165. That motion represented: “With plaintiff's
consent, the defendants move for an extension of time nunc
pro tunc to provide plaintiff with production in this case.
They seek until yesterday, July 2, 2018, to provide plaintiff
with production in this case, including that ordered in Doc.
141[.]” Doc. #165 at 1. Defendants' motion further
represented that on June 29, 2018, two days after plaintiff
filed the instant motion, the parties engaged “in a
lengthy and productive meet and confer call” where the
“parties discussed what materials had been obtained,
the difficulty in obtaining materials, the volume of
materials and possible bases for litigating the
production.” Id. On July 6, 2018, Judge
Thompson granted defendants' motion, nunc pro tunc, to
July 2, 2018. See Doc. #167.
October 29, 2018, and December 5, 2018, the parties filed two
joint status reports detailing their efforts to resolve the
many pending discovery disputes spanning plaintiff's
federal cases. See Docs. #203, #205. The parties have reached
some agreements concerning the production of documents in
this case, and plaintiff's other federal cases. See Doc.
#205 at 4-5, 14-16.
plaintiff asks the “court [to] grant an order finding
defendants in contempt and ordering sanctions accordingly,
including, finding that the facts, as alleged by the
plaintiff be found as true and controverted[, ]” Doc.
#164 at 1 (sic), the Court construes plaintiff's motion
as seeking a civil contempt order in response to
defendants' alleged non-compliance with the Court's
Discovery Memorandum and Order. See Int'l Union, United
Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-27 (1994)
(distinguishing civil and criminal contempt). Accordingly,
the Court applies the standard applicable to civil contempt.
imposed pursuant to Rule 37 or the court's inherent
power, a contempt order is, ... a ‘potent weapon, to
which courts should not resort where there is a fair ground
of doubt as to the wrongfulness of the defendant's
conduct.'” S. New England Tel. Co. v. Glob.
NAPs Inc., 624 F.3d 123, 144-45 (2d Cir. 2010) (quoting
King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d
Cir. 1995)). A court may hold a party in civil contempt for
the violation of a court order when the movant establishes
that “‘the order violated by the contemnor is
clear and unambiguous, the proof of non-compliance is clear
and convincing, and the contemnor was not reasonably diligent
in attempting to comply.'” Id. at 145
(quoting EEOC v. Local 638, 831 F.3d 1162, 1171 (2d
Cir. 1996)); see also Frazier v. APM Fin.
Sols., LLC, No. 3:11CV1762(AWT), 2015 WL
8483237, at *1 (D. Conn. Dec. 9, 2015) (“A contempt
order is warranted only where the moving party establishes by
clear and convincing evidence that the alleged contemnor
violated the district court's edict. More specifically, a
movant must establish that (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.” (internal citation and quotation marks
a contempt order is a severe sanction, it is subject to the
higher ‘clear and convincing' evidence standard
rather than the usual preponderance of the evidence standard
applicable to other civil cases.” Chere Amie, Inc.
v. Windstar Apparel, Corp., 175 F.Supp.2d 562, 565
(S.D.N.Y. 2001). “In the context of civil contempt, the
clear and convincing standard requires a quantum of proof
adequate to demonstrate a ...