JULIET GRIFFIN, Magistrate Judge.
Pending before the Court is the plaintiff's motion to have defendant held in civil contempt (Docket Entry No. 69), in which the plaintiff seeks a date for the defendant to appear in person before the Court to show cause why he should not be held in contempt, the imposition of a fine from March 16, 2011, of $500.00 per day until the defendant purges himself of contempt, and an award of attorney's fees and costs for filing the motion. The defendant has filed a response (Docket Entry No. 71), and the plaintiff has filed a reply (Docket Entry No. 72-1).
The background of this case is set forth in detail in the order entered February 14, 2011 (Docket Entry No. 65).
When the defendant still failed to respond to the written discovery, the plaintiff filed a motion to strike the defendant's answer and for entry of default on June 3, 2009 (Docket Entry No. 16). By order entered June 8, 2009 (Docket Entry No. 17), the defendant was given until June 22, 2009, to file a response to the plaintiff's motion, and the defendant was again warned that his failure to file a response to the plaintiff's motion would likely result in his answer being stricken and default entered against him. When the defendant did not file a response to the motion, the plaintiff's motion to strike was granted, the defendant's answer was stricken, and default was entered against the defendant.
On November 12, 2009, the plaintiff served the defendant with post-judgment written discovery, specifically, requests for production of documents (Docket Entry No. 57-1). When the defendant failed to serve responses to the requests for production of documents and after plaintiff's counsel relayed to the defendant the plaintiff's intent to move to compel, the plaintiff filed a motion to compel (Docket Entry No. 57). By order entered February 14, 2011 (Docket Entry No. 65), the plaintiff's motion to compel was granted. That order specifically provided as follows:
The defendant was specifically advised of his right to appeal that order to the District Judge by filing a motion to review within 14 days. The defendant did not file a motion to review, but, instead, on March 31, 2011, the defendant filed a "response" to the order (Docket Entry No. 68), dated March 23, 2011, indicating that documents would be available between 9:00 a.m. and 10:00 a.m. on March 25, 2011, March 28, 2011, and March 29, 2011, and on May 11 and May 13, 2011, at the offices of a law firm in Lancaster, Pennsylvania, for a charge of $1.00 per page for any copies made.
In the instant motion to have the defendant held in civil contempt, the plaintiff points out that, although the defendant proposed March 25, 28, and 29, 2011, as dates when the documents would be available for inspection, the defendant did not file his response with those dates until March 31, 2011, after those dates had passed.
In response (Docket Entry No. 71) to the plaintiff's motion for contempt, the defendant expressed shock that the plaintiff would attempt to hold him in contempt since plaintiff's counsel was provided five (5) separate days to inspect the documents, the plaintiff was told by the Pennsylvania law firm that the defendant was a client of the firm and that the documents would be available, and that a specific attorney would be available on May 13, 2011. He represented that plaintiff's counsel "had a scheduled date" for inspection of the documents but he "made the decision to not attend and there is no reason to reschedule, let alone hold the defendant in contempt." The defendant again, as he did in response to the plaintiff's motion to compel, addressed the merits of the underlying case, and wondered why the Court does not consider his concerns. The defendant indicated that he was "confounded as to why the Court has been so relenting in moving this case to completion," noting his inability to obtain counsel, the distance to "attend meetings on the Court's limited and unbending schedule," the time required to respond to requests and decisions that are sent by certified mail "that are two weeks or more in transit," and the time "to respond to requests and decisions made by the court when the defendant's job includes extensive international travel two weeks per month."
In reply (Docket Entry No. 72-1), the plaintiff again pointed out that three of the five days suggested by the defendant had already passed by the time the defendant communicated with the plaintiff, and that the Pennsylvania attorney specifically told plaintiff's counsel that the documents would not be available on either May 11, or May 13, 2011.
Although the Court attempted to address some of the defendant's concerns in the February 14, 2011, order, the Court will again attempt to provide some explanation to the defendant.
First, it is not the Court's responsibility to "show proof" that all orders in this case were received by the defendant. The Court's record, as reflected on the docket, shows that most, if not all, of the orders entered in this case were mailed to the defendant both by regular, first class mail and by certified mail, so that, if he were not able to retrieve certified mail from the Post Office, another copy was sent directly to his address by regular, first class mail. Further, it is the defendant's responsibility to provide the defendant and the Court with an address where he will receive mail and the defendant has never notified the Court of any change of address.
Second, other than the initial case management conference, the defendant was not required to attend any "meetings" set by the Court and the defendant was not penalized for his failure to attend the initial management conference.
Third, although the defendant indicated that he travels internationally two weeks a month, he has not indicated that there were any specific orders that he did not receive prior to deadlines set in those orders.
Finally, while the defendant may have had defenses to the plaintiff's lawsuit, the defendant simply did not comply with the Court's order, and his answer was stricken and default and later default judgment entered against him—not on the merits of the plaintiff's case but simply because the defendant did not do what he was ordered to do. To suggest that he was given insufficient time to comply with the Court's orders does not take into account the time the Court provided the defendant to comply—both before and after the judgment in this case—as reflected by the following recitation of the chronology in this case.
The defendant was served with the complaint and summons in this case on November 9, 2008.
In a letter, dated December 5, 2008, postmarked on December 9, 2008, and filed on December 16, 2008, the defendant requested an extension of time to January 31, 2009, to obtain counsel (Docket Entry No. 8). The request was granted by order entered the same day (Docket Entry No. 7), and the time for the defendant to file a response to the complaint was extended to January 31, 2009, the January 12, 2009, initial case management conference was cancelled, and the case referred to the Magistrate Judge. By order entered December 22, 2008 (Docket Entry No. 9), the initial case management conference was rescheduled to February 20, 2009, 20 days after the defendant's answer was due. The defendant filed his answer, dated January 31, 2009, and postmarked February 2, 2009, on February 5, 2009 (Docket Entry No. 11), but he did not attend the initial case management conference.
The plaintiff served the defendant with written discovery on February 27, 2009, and again on March 2, 2009.
On June 3, 2009, when the defendant had not complied with the May 19, 2009, order, the plaintiff moved to strike the defendant's answer and for entry of default.
On July 15, 2009, the plaintiff filed a motion for default judgment (Docket Entry No. 21). For the first time since the defendant's answer was filed on February 5, 2009, the defendant finally made a filing on July 27, 2009, seeking an "order to continue case for 75 days to allow Defendant to secure representation."
On August 24, 2009, the defendant filed a request for "continuation/vacate ruling" (Docket Entry No. 37), again requesting 75 days to allow him to secure representation and the vacating of the ruling in favor of the plaintiff, i.e., the default judgment. Again, the defendant represented that he was "confounded" about why the Court had been "so relenting in moving this case to completion." By order entered September 2, 2009 (Docket Entry No. 39), the District Judge denied his motion to vacate the default judgment, citing the chronology of the case, beginning with his being served with process in November of 2008, his failure to attend the initial case management conference, and failure to respond to motions or comply with Court orders. The Court concluded that the defendant has "repeatedly ignored court orders, not secured representation after begin given several chances to do so, not picked up certified mail sent by the court, and basically been inattentive to this case until a sizable default judgment was entered against him." The Court found that the "record cannot justify the granting of any further "breaks" to the defendant. By entry of that order, the defendant's previous request for continuation (Docket Entry No. 27) was also effectively denied.
Again, the defendant had over seven months from the time he was served with process on November 9, 2008, to the time default was entered against him on June 29, 2009, to take some action. Other than filing a request for extension of time to file an answer and obtain counsel, and the filing of his answer on February 5, 2009, he took no action until, as the Court noted, a sizeable default judgment was thereafter sought and entered against him. Although it appeared initially that the defendant would produce the requested documents at the Pennsylvania law firm, plaintiff's counsel represents that there was no communication from either the defendant or any representative of the Pennsylvania law firm to establish another date for inspection and copying by the plaintiff after May 3, 2011.
However, on January 13, 2012, the Court received from the defendant a copy of an email addressed to plaintiff's counsel, as follows:
Let me know what date works for you.
Setting aside the fact that it is entirely improper for the defendant or any litigant or counsel to communicate with the Court by email, the defendant has finally proposed additional dates. As a result, the Court must deny the plaintiff's motion for contempt. Although the Court is not inclined to give the defendant further "breaks," the plaintiff seeks to hold the defendant in civil contempt. If the defendant were held in civil contempt, the Court could order that he be imprisoned until he purges himself of contempt or the Court could, as the plaintiff suggests, be ordered to pay a fine on a daily basis for each day that he does not comply with the Court's order holding him in contempt. Inasmuch as the defendant appears to have now shown his willingness to comply with the previous court order, there is nothing that can be accomplished by having a hearing to determine if the defendant should be held in contempt. Although the plaintiff suggests that monetary sanctions should be imposed from 30 days after the February 14, 2011 order until the defendant has purged himself of contempt, the plaintiff provides no authority for imposition of such sanctions prior to a finding of contempt.
The denial of the plaintiff's motion is, however, contingent upon the following conditions:
1. Within three (3) calendar days of entry of this order, the defendant shall provide plaintiff's counsel with the name of the contact person in the law firm of Barley, Snyder with whom plaintiff's counsel and/or his copying service can communicate or confirm that the contact person is George C. Werner.
2. The plaintiff shall not be required to pay a copy fee of $1.00 per page or any per page charge.
3. Instead, the defendant shall permit the plaintiff to utilize Capitol Copy Service or any other copying service of the plaintiff's choice to retrieve the documents at issue from the Barney Snyder law firm, make copies of all of those documents, and return the originals to the Barley Snyder law firm.
4. The defendant's production shall include responsive documents to all of the plaintiff's requests for production of documents.
5. Unless the plaintiff is unable to make arrangements for a copying service to retrieve the documents on January 27, 2012, or January 31, 2012, at 10:00 a.m., the plaintiff shall notify the defendant, as soon as possible, which date the plaintiff selects. If the plaintiff is unable to make arrangements for either of those two days, plaintiff's counsel shall immediately so notify the defendant and the Court.
The defendant is warned that his failure to comply with this order and to have the documents available for the plaintiff's copying service to retrieve and copy the documents on the date selected will, upon any renewed motion by the plaintiff, subject the defendant to further sanctions and the scheduling of a show cause hearing to address why he should not be held in contempt of Court, and, if the defendant were held in contempt of Court, he could be subject to incarceration until he purges himself of contempt and/or civil penalties in the form of daily monetary assessments until the documents are produced.
The Clerk is further directed to send a copy of this memorandum to George C. Werner, Jr., Barley Snyder LLC, 126 East King Street, Lancaster, PA 17602, by regular, first class mail (only).
