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Directors of Ohio Conference of Plasterers v. S & S Plastering LLC

United States District Court, S.D. Ohio, Western Division

August 14, 2019

DIRECTORS OF THE OHIO CONFERENCE OF PLASTERERS AND CEMENT MASONS COMBINED FUNDS, INC., Plaintiffs,
v.
S & S PLASTERING LLC, Defendant.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman, United States Magistrate Judge.

         A default judgment previously was entered in this case against Defendant S&S Plastering LLC. (Doc. 14). This matter is now before the undersigned regarding the Defendant's failure to show cause why it should not be held in contempt of court. For the following reasons, the undersigned RECOMMENDS THAT Steven R. Doyle be directed to appear before the presiding district judge IN PERSON on a date certain to show cause for his and the Defendant's failure to comply with the July 9, 2019 Order of the undersigned magistrate judge. If Mr. Doyle fails to appear, the presiding district judge should hold Defendant in civil contempt.

         I. Civil Contempt

         A finding of civil contempt is appropriate when a party disobeys a lawful court order. Glover v. Johnson, 138 F.3d 228, 245 (6th Cir. 1998). “Contempt proceedings enforce the message that court orders and judgments are to be complied with in a prompt manner.” IBEW v. Gary's Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir. 2003) (citing NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987)). Before a court will hold a litigant in contempt, a moving party must show “by clear and convincing evidence that the party to be held in contempt violated a court order.” U.S. v. Conces, 507 F.3d 1028, 1042 (6th Cir. 2007). Although no formal motion for civil contempt has been filed by Plaintiffs, Plaintiffs previously filed an analogous motion by seeking a show cause order, directing Defendant to show cause as to why it should not be held in contempt. The undersigned granted Plaintiffs' “show cause” motion on July 9, 2019. (Doc. 19). However, neither Mr. Doyle, as the Defendant's registered agent, nor any other person on behalf of the Defendant has filed any timely response to show cause order.

         Section 636(e) of the United States Magistrate Judges Act governs the authority of the undersigned in contempt proceedings. In civil cases like the one presented here, where the parties have not consented to a magistrate judge under 28 U.S.C. § 636(c), the imposition of civil contempt requires certification of facts by the undersigned to the presiding district judge. Specifically, the statute provides, in relevant part, as follows:

(6) Certification of other contempts to the district court. -- Upon the commission of any such act-
* * *
(B) in any other case or proceeding under subsection (a) or (b) of this section, or any other statute, where-
* * *
(iii) the act constitutes a civil contempt,
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.

28 U.S.C. § 636 (e)(6)(B)(iii).

         Given Mr. Doyle's lack of any timely response to the July 9, 2019 show cause order, the undersigned certifies the following facts to the presiding district judge and recommends requiring Mr. Doyle to appear upon a ...


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