Trustees of the Connecticut Pipe Trades Local 777 Health Fund v. Plumbing Creations, LLC

          RULING ON PLAINTIFFS' MOTION FOR CONTEMPT

          MICHAEL P. SHEA, U.S.D.J.

         I. Introduction

         This motion arises out of Defendant's failure to comply with a post-judgment subpoena. (ECF No. 50.) Plaintiffs, the United Association of Plumbers and Pipefitters Local 777 and seven union employee benefit funds (“Plaintiffs”), obtained a default judgment against Defendant, Plumbing Creation, LLC (“Defendant”), totaling $74, 958.40. (ECF No. 44.) Plaintiffs were unable to collect $22, 601.99 of the judgment amount. As a result, they filed a motion for a Judgment Debtor Exam, seeking to require the Defendant to appear for questioning and produce certain documents relating to its assets and ability to pay. (ECF No. 49.) I granted the motion (ECF No. 50), but Defendant failed to produce documents required by Plaintiffs' subpoena. (ECF No. 53 at ¶ 8.) Plaintiffs have now filed a motion for contempt, asking the Court to impose a monetary fine for each day Defendant fails to comply with the subpoena. (ECF No. 53.) For the reasons set forth below, the motion is GRANTED.

         II. Background

         Plaintiffs are a union, the United Association of Plumbers and Pipefitters Local 777, and seven union employee benefit funds. (ECF No. 1 at ¶ 1.) Defendant, Plumbing Creations, LLC, is a limited liability company based in Hartford, Connecticut. (Id. at ¶ 3.) Plaintiffs brought this action on May 29, 2015. (Id.) They alleged that Defendant had violated a collective bargaining agreement requiring it to make certain contributions to employee benefit funds on behalf of its employees. (ECF No. 1 at ¶¶ 6, 8.) Defendant failed to answer the complaint or otherwise defend, and Plaintiffs moved for default entry. (ECF No. 11.) The motion was granted on July 30, 2015. (ECF No. 12.) Plaintiffs then moved for default judgment. (ECF No. 13.) After supplemental briefing related to damages, the Court entered a default judgment against Defendant in the amount of $74, 958.40. (ECF No. 44.)

         After the Court entered default judgment, the Plaintiffs applied for, and received, a writ of execution to enforce the judgment (ECF Nos. 45, 48.) Plaintiffs collected a portion of the judgment but assert that they were unable to collect the remaining balance of $22, 601.99. (ECF No. 53 ¶ 3.) Defendant did not respond to post-judgment interrogatories and, as such, Plaintiffs moved to conduct a Judgment Debtor Exam to investigate any property or assets the Defendant may possess. (ECF No. 49.) I granted the motion and appointed Plaintiffs' counsel as the committee for the exam under Conn. Gen. Stat. § 52-397. Plaintiffs' counsel scheduled the Judgment Debtor Exam for May 30, 2018. Plaintiffs served Defendant with my ruling on the motion, notice of the exam, and a subpoena duces tecum requiring it to produce several documents related to its accounts and assets. (ECF Nos. 53-2, 53-3, 53-4.) Defendant failed to appear for the Exam. (ECF No. 53 at ¶ 6.) Plaintiffs' counsel rescheduled the Exam for June 12, 2018 and again served Defendant with notice, together with a letter reiterating that Defendant should “bring copies of all requested documents.” (ECF No. 53-3, 53-6.) Defendant appeared for the Exam on June 12, 2018 but did not provide any of the required documents; to date Defendant has still not supplied the documents. (ECF No. 53 at ¶ 8.)

         On January 8, 2019, Plaintiffs filed a motion asking that the Court hold Defendant in contempt for failing to comply with the subpoena and provide the documents. (ECF No. 53.) On January 31, 2019, I ordered Defendant to show cause within 14 days why the Court should not hold it in contempt and impose the sanctions that Plaintiffs sought. (ECF No. 54.) Plaintiffs served Defendant with a copy of the order on February 7, 2019, but Defendant has not responded. (ECF No. 55-3.)

         III. Legal Standard

         Under Federal Rules of Civil Procedure 69(a)(1) a court may issue a writ of execution to enforce a money judgment. “The procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located.” Fed R. Civ. P. 69(a)(1). Additionally, under Rule 69(a)(2) a judgment creditor “may obtain discovery from any person[, ]including the judgment debtor[, ]” to aid in the execution of the judgment. Connecticut law provides that, if a judgment is not paid in full or the judgment debtor fails to answer post-judgment interrogatories within thirty days, then the judgment creditor may examine the judgment debtor under oath “concerning his property and means of paying such judgment, before any judge . . . or before a committee appointed by such judge.” Conn. Gen. Stat § 52-397.

         “The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice.” Ex parte Robinson, 86 U.S. 505, 510 (1873). Civil contempt is “coercive” and “compel[s] obedience . . ., ” United States v. Petito, 671 F.2d 68, 72 (2d Cir. 1982), and its purpose is to “secure future compliance with court orders and to compensate the party that has been wronged.” Paramedics Electromedicina Comercial, Ltda. v. GE Med Sys. Info. Techs. Inc., 369 F.3d 645, 657 (2d Cir. 2004).

         Under 18 U.S.C. § 401, a court may impose fines or imprisonment for “[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” Rule 45(g) further provides that a court may hold an individual in contempt “who, having been served, fails without adequate excuse to obey [a] subpoena or an order related to it.” “A court may hold a party in contempt if (1) the order the party failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted to comply in a reasonable manner.” Paramedics Electromedicina, 369 F.3d at 655.

         IV. Discussion

         A. Defendant Failed to Comply with a Clear and Unambiguous Subpoena

         Here, the subpoena was clear and unambiguous. “[A party] may only be held in contempt if it violated a clear and unambiguous order that left no doubt in the minds of those to whom it was addressed.” Drywall Tapers & Pointers v. Local 530, 889 F.2d 389, 395 (2d Cir. 1989). A “clear and unambiguous” order is one that is “specific and definite enough to apprise those within its scope of the conduct that is being proscribed.” N.Y. State NOW v. Terry, 886 F.2d 1339, 1352 (2d Cir. 1989). In granting the Plaintiffs' motion for judgment debtor exam, I explicitly permitted Plaintiffs to “provide for the service of a subpoena or subpoena duces tecum on the judgment debtor for appearance at such time and place as the Plaintiffs/Judgment Creditors or their attorney decides.” (ECF No. 50 at 3.) I also warned that, if Defendant failed to comply with the subpoena, it would be subject “to the provisions of [Conn. Gen. Stat. §] 52-143, concerning fine, damages and capias.” (Id.) Plaintiffs served Defendant with a copy of my order and a subpoena to appear for a Judgment Debtor Exam on May 30, 2018. (ECF No. 53-4.) The subpoena required Defendant to produce several documents. (See ECF No. 53-3 at 2 (requiring Defendant to produce “[c]opies of . . . checking and savings bank account statements . . . tax returns . . . assets and liabilities . . . unpaid accounts receivables. . . outstanding retention owed to Plumbing Creations . . . Documentation of any real property owned . . . all equipment and vehicles ow[n]ed by Plumbing Creations . . . intangible assets . . . any other tangible assets not mentioned in the above-referenced requests . . . .”).) The language of the subpoena was plain and direct. (ECF No. 53-3 (“You, or your representatives, must also bring with you to the deposition the following documents, electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the material . . . .”).) Defendant did not appear and did not provide the documents. Plaintiffs rescheduled the exam, served Defendant with notice of the new date and time, and reiterated that Defendant should ...