Sellers v. Walker

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMON SELLERS, No. 2:20-cv-01787 WBS AC 12 Plaintiff, 13 v. ORDER 14 DERRICK STEVENS dba STAGECOACH RESTAURANT, et al., 15 Defendants. 16

17 18 Before the court is plaintiff Raymon Sellers’ motion for an order requiring non-party 19 witness Michael Andrews (“Andrews”) to show cause why he should not be held in civil 20 contempt for failing to produce documents which were subpoenaed. ECF No. 37. For the 21 reasons explained below, the motion is DENIED. 22 BACKGROUND 23 Plaintiff asserts that defendant identified Mr. Andrews as a witness in this case, and that 24 on November 13, 2021, Andrews was served with a notice of subpoena for documents and 25 deposition. ECF No. 37 at 2. Andrews appeared for a remote deposition from his home office on 26 December 3, 2021, but did not produce documents. Id. The parties agreed, due to the lack of 27 documents and technical difficulties, to continue the deposition until after the documents were 28 produced. ECF No. 37 at 7. Following the deposition the parties met and conferred on December 1 |} 10, 2021, and January 10, 2022. Id. Nonparty Andrews, specially appearing through counsel, 2 || asserts the request to hold him in civil contempt is improper for several reasons, including that 3 || plaintiff seeks what amounts to expert reports, and that the documents are equally readily 4 | available from defendants. ECF No. 39. 5 DISCUSSION 6 A district court has authority “to punish by fine or imprisonment, or both, at its discretion, 7 || such contempt of its authority, and none other ... (1)[m]isbehavior of any person in its presence or 8 || so near thereto as to obstruct the administration of justice; ... [or] (3)[d]isobedience or resistance 9 | to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401 (emphasis added). 10 | “[MlJisbehavior punishable under section 401(1) must be willful ... and must actually obstruct the 11 || district judge in the performance of his judicial duties.” United States v. Thoreen, 653 F.2d 1332, 12 | 1339 (9th Cir. 1981) (citations and internal quotation marks omitted). Additionally, “[o]ne may 13 || be found in contempt for disobeying an order pursuant to section 401(3) only if the order is clear 14 || and definite, and the contemnor has knowledge of it.” Id. (citation and internal quotation marks 15 || omitted). 16 Here, plaintiff has not cited any order of the court that nonparty Andrews has violated, nor 17 | identified behavior amounting to an attempt to obstruct the administration of justice or the disrupt 18 || the performance of judicial duties. Plaintiff did not bring a motion to compel; instead, he asks the 19 || court to consider holding Mr. Andrews in civil contempt. Even assuming the truth of the facts 20 || supplied in plaintiff's motion and construing every potential ambiguity in favor of plaintiff, Mr. 21 || Andrews’ failure to produce documents would not warrant an immediate leap to civil contempt. 22 || Thus, the undersigned declines to use her discretion to issue an order to show cause regarding 23 || such sanctions. 24 The motion at ECF No. 37 is DENIED. 25 IT IS SO ORDERED. ~ 26 || DATED: March 10, 2022 Httwn— ALLISON CLAIRE 27 UNITED STATES MAGISTRATE JUDGE 28