United States District Court, D. Connecticut
TRUSTEES OF THE CONNECTICUT PIPE TRADES LOCAL 777 HEALTH FUND et al. Plaintiff,
v.
PLUMBING CREATIONS, LLC Defendants.
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 ...