United States District Court, D. Connecticut
RULING AND ORDER
R. Underhill United States District Judge.
plaintiff, Mark Anthony Henderson (“Henderson”),
has filed motions to file copies of his discovery requests,
for prejudgment disclosure of assets and a prejudgment
remedy, for contempt, to disqualify and remove opposing
counsel, and for a status conference.
Motion for Leave to File Discovery Requests [ECF No.
seeks leave to file copies of his discovery requests while
acknowledging that court rules prohibit the filing of those
documents. See D. Conn. L. Civ. R. 5(f)1
(“interrogatories, requests for documents, requests for
admissions … shall not be filed with the Clerk's
Officer except by order of the Court”). Henderson
states that filing the requests will reinforce for
defendants' counsel that the requests were served. Filing
these documents with the court does not demonstrate that the
documents were properly served on defendants' counsel. It
merely shows that Henderson drafted such documents. Indeed,
Henderson states in his certification on several of the
requests that he served the documents electronically.
However, Henderson was advised in the Initial Review Order
filed on August 31, 2018, that discovery requests must be
served on the defendants by regular mail. They cannot be
served electronically through the Prisoner Efiling Program.
See ECF No. 9 at 10.
attempts to circumvent this prohibition by referring the
Court to Rule 5(f)3, which permits the filing of
“discovery material” when that information is not
on file and is required for the court to properly consider a
motion. The material permitted to be filed under subsection
3, is the discovery responses. For example, responses to
interrogatories or requests for admission may be filed in
support of a motion for summary judgment, and copies of
discovery requests with responses are filed in support of a
motion to compel. Here, copies of the discovery requests are
not required to decide any issue before the court.
Henderson's motion is denied.
Motion for Prejudgment Disclosure and Prejudgment Remedy
[ECF No. 22]
seeks a prejudgment remedy in an unspecified amount because
“[t]here is probable cause that a judgment in the
amount of the prejudgment remedy” will be entered in
his favor.” ECF No. 22, at 3. In conjunction with his
motion, he asks the Court to order the defendants to disclose
all real and personal property and all debts owing to them.
The defendants object to the motion because Henderson failed
to comply with the requirements for obtaining a prejudgment
remedy under state law. In reply, Henderson concedes that he
did not properly file his motion and seeks permission to
refile his motion to correct the deficiencies identified by
light of Henderson's concession, his motions for
prejudgment remedy and disclosure of assets is denied without
prejudice. Henderson may refile his motion in accordance with
the requirements under state law.
Motions for Contempt [ECF Nos. 23, 31, 36]
has filed three motions for contempt. In his first motion,
Henderson states that he mailed discovery requests to
defendants' counsel on December 7, 10, and 17, 2018, but
received no responses. Henderson's motion is dated
January 2, 2019. Because the defendants had thirty days from
service of the discovery requests to serve their responses,
the responses were not late when Henderson filed his motion.
In his reply to the defendants' objection to the motion,
Henderson states that he filed the motion for contempt
because defendants' counsel has a “history of using
nefarious delay tactics” in other cases. ECF No. 29 at
2. Counsel's actions in other cases is not a reason to
find counsel in contempt in this case. Henderson's first
motion for contempt is denied as prematurely filed.
second motion, Henderson states that the defendants failed to
respond to his motion for prejudgment remedy. As noted above,
Henderson has conceded that the motion was improperly filed.
Accordingly, the second motion for contempt is denied.
third motion, filed on February 25, 2019, Henderson asks the
Court to hold defendants' counsel in contempt for failing
to provide discovery materials by February 23, 2019, the date
requested in defendants' motion for extension of time,
ECF No. 24. The Court considers this motion to seek an order
of civil contempt for failure to meet a discovery deadline.
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.'” Southern New England Tel. Co. v.
Global 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)). Before the court will hold a party in
contempt, the movant must establish three requirements,
“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) (internal quotation marks omitted); see also
Frazier v. APM Fin. Sols., LLC, 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 omitted)).
contempt order is a severe sanction. Thus, the court applies
the higher “clear and convincing” evidence
standard, rather than the lesser “preponderance of the
evidence” standard usually applied in civil cases.
See Levin v. Tiber Holding Corp., 277 F.3d 243, 250
(2d Cir. 2002) (explaining that the clear and convincing
standard applied in the civil contempt context requires