LAUREL BEELER, Magistrate Judge.
In this federal civil rights action, Plaintiff Hilario Martinez served a Rule 45 subpoena on non-party Javier Ortiz for a deposition that was to occur on December 6, 2011. Lagos Declaration, Exh. B, Subpoena, ECF No. 41-2 at 8-10; id., Exh. C, Proof of Service, ECF No. 41-2 at 12; see Fed. R. Civ. P. 45. After Mr. Ortiz refused service and failed to appear at his deposition, Mr. Martinez asked the district court to order Mr. Ortiz to appear and show cause why he should not be held in civil contempt for failing to appear at his deposition. Application, ECF No. 41 at 7. Mr. Martinez also asks for $3,112.50, which are the litigation costs that he incurred after Mr. Ortiz did not appear for his deposition. Id. The presiding district judge previously referred the case to a magistrate judge for all discovery purposes. Order of Referral, ECF No. 27. Because his application involves a discovery dispute, and at the court's direction, Mr. Martinez noticed the application for hearing on March 1, 2012. 01/18/2012 Order, ECF No. 40; Re-Notice of Motion, ECF No. 41-1. Mr. Ortiz did not respond to Mr. Martinez's application or appear at the hearing on March 1, 2012.
For good cause shown, the court orders Mr. Ortiz to appear before this court on March 15, 2012 at 11:00 a.m. to show cause why he should not be held in civil contempt for failure to appear at his deposition..
On March 4, 2011, Mr. Martinez filed this civil rights action against the City of Pittsburg, its police department, and several of its police officers, claiming wrongful arrest, excessive force during the arrest, wrongful prosecution in state court for resisting arrest, and other constitutional violations. Complaint, ECF No. 1.
Mr. Ortiz witnessed Mr. Martinez's arrest and was interviewed by the police. Lagos Declaration, Exh. A, Ortiz Statement, ECF No. 41-2 at 5-6. Mr. Martinez then tried to depose Mr. Ortiz, serving him with a subpoena on November 28, 2011, and noticing the deposition for December 6, 2011. Lagos Declaration, Exh. B, Subpoena, ECF No. 42-2 at 8-10. The subpoena, which contained all required information
Mr. Martinez then asked the court to issue an order to show cause to Mr. Ortiz why he should not be held in civil contempt for failing to appear at his deposition. Application, ECF No. 41 at 7. Mr. Martinez also asks for $3,112.50, the costs it incurred based on Mr. Ortiz's failure to appear. Id.; Lagos Declaration, ECF No. 41-2 at 2-3, ¶¶ 4-5. Plaintiff noticed the application for March 1, 2012, and the papers were "delivered by hand to the residence of Javier Ortiz located at 1181 Beacon Street, Apt. B, Pittsburg, CA, 94565" on January 26, 2012. Proof of Service, ECF No. 41-5 at 2-3.
The court addresses the sufficiency of the subpoena first and then turns to the consequences of Mr. Ortiz's non-compliance.
A subpoena shall "command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person." Fed. R. Civ. P. 45(a)(1)(iii). As described above, the subpoena contained all required information (such as the time and place of the deposition) and was personally delivered to Mr. Ortiz on November 28, 2011. See Fed. R. Civ. P. (a)(1)(A)-(B) & (b)(1); see also Prescott v. County of Stanislaus, No. 1:10-cv-00592 JLT, 2012 WL 10617, at *3 (E.D. Cal. Jan. 3, 2012) ("A majority of courts interpret "delivering" to require personal service.") (citations omitted). Thus, it was valid and properly served on Mr. Ortiz. Mr. Ortiz's refusal to keep the papers after they were properly served on him does not render their service invalid. See, e.g., Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1136 (9th Cir. 2009) (in the context of Rule 4, explaining that "[s]ufficient service may be found where there is a good faith effort to comply with the requirements of Rule 4(e)(2) which has resulted in placement of the summons and complaint within the defendant's immediate proximity and further compliance with Rule 4(e)(2) is only prevented by the defendants knowing and intentional actions to evade service").
Because the subpoena was valid and properly served, the court turns to the consequences of Mr. Ortiz's non-compliance with it.
Rule 45(e) allows a court to "hold in contempt a [non-party] who, having been served, fails without adequate notice to obey the subpoena." See also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 (9th Cir. 1983) (citing and discussing previous subsection of former Rule 45). Subpoenas issued by attorneys are issued on behalf of the court and thus are treated as orders of the court. United States Sec. & Exh. Comm'n v. Hyatt, 621 F.3d 687, 693 (7th Cir. 2010); Higginbotham v. KCS Int'l, Inc., 202 F.R.D. 444, 455 (D. Md. 2001) (citing Advisory Comm. Notes to Rule 45(a), 1991 amend.). If a party seeks a contempt sanction against a non-party, the non-party has a right to be heard in a meaningful fashion. Hyatt, 621 F.3d at 696-97.
A contempt charge against a nonparty may be criminal or civil in nature. See Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). Criminal contempt is punitive, and it is designed to punish the affront to the court. See Gompers v. Bucks, 221 U.S. 418, 441 (1911); see also In re Sequoia Auto Brokers LTD., Inc., 827 F.2d 1281, 1283 n.1 (9th Cir. 1987). Thus, it may include fines payable to the court (as opposed to Mr. Martinez), and it also may include jail time. 18 U.S.C. § 401.
Plaintiff asks for the court to hold Mr. Ortiz in civil contempt. Civil contempt is characterized by the court's desire to compel obedience with a court order, or to compensate the contemnor's adversary for the injuries which result from the non-compliance. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). A district court has wide latitude in determining whether there has been a contemptuous defiance of one of its orders. Stone v. City of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992). A civil contempt order must be accompanied by a "purge" condition, meaning, it must give the contemnor an opportunity to comply with the order before payment of the fine or other sanction becomes due. De Parcq v. U.S. District Court for Southern Dist. of Iowa, 235 F.2d 692, 699 (8th Cir. 1956) ("[C]ivil contempt is conditional in nature and can be terminated if the contemnor purges himself of the contempt.") (citing Gompers, 221 U.S. at 442-44) In imposing civil contempt sanctions, the court must impose the least possible sanction to coerce the contemnor to comply with the order. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992) ("Generally, the minimum sanction necessary to obtain compliance is to be imposed.") (citing Spallone v. United States, 493 U.S. 265, 280 (1990)). Where the purpose of the contempt order is to ensure a party's compliance, the court must "consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired." Bademyan v. Receivable Management Services Corporation, No. CV-08-00519, 2009 WL 605789, at *3 (C.D. Cal. Mar. 9, 2009) (citing Whittaker, 953 F.2d at 516).
To establish civil contempt, Plaintiff must show by clear and convincing evidence that Mr. Ortiz violated a specific order of the court. See FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). If Plaintiff meets that burden, Mr. Ortiz then must show that he took every reasonable step to comply with the subpoena and to articulate reasons why compliance was not possible. See Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th Cir. 1983). A court may consider a history of noncompliance and a failure to comply despite the pendency of a contempt motion. See Stone, 968 F.2d at 856-57. If an alleged contemnor's actions were taken in good faith or based on a reasonable interpretation, he should not be held in contempt. See id.
As discussed above, Mr. Martinez has shown that Mr. Ortiz violated a specific and definite order of the court by failing to appear for his deposition on December 6, 2011. The court thus grants Mr. Martinez's application for an order to show cause. See Prescott, 2012 WL 10617, at *4 (employing this procedure); Rodriguez v. County of Stanislaus, No. 1:08-cv-00856 OWW GSA, 2010 WL 3733843, at *6 (Sep. 16, 2010) (proper procedure is issuing the order to show cause).
The court denies Mr. Martinez's request for costs and fees without prejudice. There are two grounds for awarding the costs and fees: as a contempt sanction to coerce compliance with the subpoena for a deposition or as a sanction under Rule 37(a)(5). See General Ins. Co. of America v. Eastern Consolidated Utilities, Inc., 126 F.3d 215, 220 (3rd Cir. 1997) (nonparty contemnor ordered to pay $500 for expenses and attorneys fees); Fed. R. Civ. P. 37(a)(5) (relating to the payment of expenses with respect to a motion to compel). As a contempt sanction, awarding the costs is premature at this juncture, but Mr. Ortiz is warned that a financial penalty is a possible contempt sanction.
As a sanction under Rule 37(a)(5), Mr. Martinez's request fails for two reasons. First, in this District, all motions for sanctions must be filed as separately noticed motions, not as a part of a motion to compel. N.D. Cal. Civ. L.R. 7-8.
Based on the foregoing, Mr. Martinez's application for an order to show cause is GRANTED. Mr. Martinez's motion to compel and for sanctions is DENIED.
Mr. Ortiz is ORDERED to appear before the undersigned on March 15, 2012 at 11:00 a.m. in Courtroom 4, Third Floor, United States District Court, 1301 Clay St., Oakland, California, 94612 to show cause why he should be held in contempt for his failure to comply with the subpoena and appear for his deposition. Should Mr. Ortiz arrange with Mr. Martinez's counsel (Law Offices of Panos Lagos, 5032 Woodminster Lane, Oakland, California, 94602-2614, Tel: (510) 530-4078, Fax: (510) 530-4725, email: panoslagos@aol.com) to appear for a deposition prior to March 15, 2012, the parties shall notify the court immediately, and the March 15, 2012 show cause hearing will be vacated and Mr. Ortiz will not need to be appear on March 15, 2012..
Failure to comply with this order to show cause may subject Mr. Ortiz to the contempt sanctions set forth in the previous section.
The United States Marshal is directed to serve this order on Javier Ortiz at 1181 Beacon Street, Apt. B, Pittsburg, California, 94565 as soon as is practicable.
This disposes of ECF No. 41.
N.D. Cal. Civ. L.R. 7-8.
