United States District Court, S.D. Ohio, Eastern Division
BOARD OF TRUSTEES OF THE OHIO LABORERS' FRINGE BENEFIT PROGRAMS, Plaintiffs,
D&R MASONRY, INC., Defendant.
C. Smith Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiffs' Motion for
Order to Show Cause Why Certain Persons Should Not Be Held in
Contempt of Court (the “Show Cause Motion”) (Doc.
9). Plaintiffs filed an Application for Entry of Default
Against Defendant, (Doc. 5), on May 14, 2019, and a Motion
for Order Accelerating and Compelling Discovery (Doc. 7) on
May 22, 2019. The Clerk entered default as to Defendant on
May 15, 2019 (Doc. 6), and the Court granted Plaintiffs'
Motion for Order Accelerating and Compelling Discovery in its
May 23, 2019 Order (Doc. 8). Specifically, the Court ordered
“that Defendant, through an authorized agent, appear
for deposition on a date and time as determined by the
Plaintiff and produce the documents requested in
Plaintiff's Notice of Deposition and Request for
Production of Documents.” (Id. at 1).
the Order was served on Defendant by certified mail,
Defendant failed to comply with the Court's Order by not
appearing for deposition and not producing documents. (Doc.
9-1). Consequently, Plaintiffs filed the Show Cause Motion.
In it, Plaintiffs requested that the Court enter an order
“requiring the Defendant and its authorized officer,
Ralph Robertson, to appear and show cause why they and each
of them should not be held in contempt of the Court's
previous order, and punished by fine, imprisonment, or both
and ordered to pay” the expenses associated with the
Show Cause Motion. (Doc. 9 at 2).
Undersigned issued a Show Cause Order directing Defendant and
its registered agent, Ralph Robertson, “to appear and
show cause why they should not be held in contempt of this
Court's May 23, 2019. (Doc. 10 at 2). In that Order, the
Undersigned set a show cause hearing for June 27, 2019. The
Order advised that, if Defendant and Mr. Robertson failed to
appear and show cause, “the Court may order the arrest
of Mr. Robertson.” (Id.). Copies of that Order
were sent to Defendant and Mr. Robertson by regular and
certified mail. (Doc. 11).
27, 2019, the Undersigned held a show cause hearing on at
9:30 a.m. Despite having adequate notice of that hearing,
Defendant and Mr. Robertson did not appear. Having failed to
comply with the Court's Orders (Docs. 8, 10), the
Undersigned finds that civil contempt sanctions are
has long been established as an appropriate sanction for
civil contempt.” Singh v. Capital Univ. Law &
Graduate Ctr., 238 F.3d 424 (6th Cir. 2000) (collecting
cases). “As used in the civil context, . . .
incarceration must be conditional[.]” (Id.).
Accordingly, to ensure Defendant's compliance with the
Court's Orders, it is RECOMMENDED that
the Court GRANT Plaintiff's Motion (Doc.
9) and HOLD DEFENDANT and RALPH ROBERTSON in
CONTEMPT. Specifically, if Defendant does not comply
with the Court's May 23, 2019 Order (Doc. 8) within
TWENTY ONE DAYS of the adoption of this
Report and Recommendation, it is RECOMMENDED
that the Court issue a warrant for the arrest of Ralph
Robertson and imprison Mr. Robertson until such time as
Defendant complies with the Court's May 23, 2019 Order.
The Court emphasizes that these sanctions are conditional and
designed only to ensure Defendant's compliance.
Defendant, therefore, may purge itself of its contempt, and
avoid the above punishment, by working with Plaintiff and its
counsel to resolve this matter.
it is RECOMMENDED that the Court hold Defendant liable,
regardless of its future action, for Plaintiff's expenses
and attorney's fees associated with its Motion for Order
to Show Cause (Doc. 9), as compensation for Defendants'
Clerk is DIRECTED to mail a copy of this
Order, by regular and certified mail, to:
Ralph Robertson c/o D&R Masonry, Inc. P.O. Box 565,
Lucasville, OH 45648
Ralph Robertson c/o D&R Masonry, Inc. 2165 Millers Run
Fallen Timber Rd., Lucasville, OH 45648
Clerk shall indicate on the docket the fact of that mailing.
party objects to this Report and Recommendation
(“R&R”), that party may, within fourteen days
of the date of this R&R, file and serve on all parties
written objections to those specific proposed findings or
recommendations to which objection is made, together with
supporting authority for the objection(s). A District Judge
of this Court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. Upon proper
objections, a District Judge of this Court may accept,
reject, or modify, in whole or in part, the ...