Harnage v. Wu

          RULING ON PLAINTIFF'S MOTION FOR CONTEMPT AND SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY ORDER NO. 141 [DOC. #155]

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE

         Self-represented plaintiff James A. Harnage (“plaintiff”) has filed a Motion for Contempt and Sanctions for Failure to Comply with Discovery Order No. 141, asserting that defendant Dr. Naqvi has failed to adequately answer an interrogatory, as ordered by the Court. See Doc. #155 at 1. Dr. Naqvi has filed an objection to plaintiff's motion. [Doc. #161]. On June 24, 2018, Judge Alvin W. Thompson referred plaintiff's motion to the undersigned. [Doc. #160]. 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 Motion for Contempt and Sanctions for Failure to Comply with Discovery Order No. 141 [Doc. #155].

         I. Background

         The 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.

         On 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]. During that conference, the Court addressed plaintiff's third set of interrogatories to Dr. Naqvi, which was the subject of plaintiff's then-pending motion to compel reflected at docket entry 89. See Id. at 12.^[1] In pertinent part, the Court ordered: “Dr. Naqvi shall answer or object to interrogatories 1 and 2[] ... on or before May 31, 2018.” Id. (emphases removed).

         On June 18, 2018, plaintiff filed the instant motion for contempt and sanctions. [Doc. #155]. Plaintiff contends that Dr. Naqvi “timely filed a pleading, however, intentionally and flagrantly ignored the courts order and/or intentionally responded in a manner intended to subvert that order[.]” Id. at 1. Plaintiff specifically takes issue with Dr. Naqvi's answer to interrogatory 1 and each of its subparts. See generally Id. at 3, 5-8. Dr. Naqvi objects to the relief sought. See Doc. #161.

         On 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 discovery in this case, and plaintiff's other federal cases. See Doc. #205 at 4-5, 14-16.

         II. Legal Standard

         Because plaintiff asks the “court [to] grant the relief sought by finding defendant in contempt and imposing sanctions accordingly[, ]” Doc. #155 at 8 (sic), the Court construes plaintiff's motion as seeking a civil contempt order based on Dr. Naqvi's 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.

         “Whether 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)).

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.

Frazier v. APM Fin. Sols., LLC, No. 3:11CV1762(AWT), 2015 WL 8483237, at *1 (D. Conn. Dec. 9, 2015) (internal citation and quotation marks omitted).

         “Because 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 ‘reasonable certainty' that a violation occurred.” Levin v. Tiber Holding Corp., 277 F.3d 243, 250 (2d Cir. 2002).

         “Under [28 U.S.C. §636(e)], in a case other than one over which the magistrate judge presides with a consent of the parties under 28 U.S.C. §636(c), a magistrate judge is not authorized to issue a final contempt order. Instead, the magistrate judge's function in a ‘non-consent' case is to certify facts relevant to the issue of civil contempt to the district court.” Telebrands Corp. v. Marc Glassman, Inc., No. 3:09CV734(RNC)(DFM), 2012 WL 1050018, at *1 (D. Conn. Mar. 28, 2012) (internal citations and quotation marks omitted); see also Stancuna v. Sacharko, No. 3:09CV75(AWT)(DFM), 2010 WL 2351485, at *2 (D. Conn. June 9, ...