United States District Court, S.D. Ohio, Eastern Division
BOARD OF TRUSTEES OF THE OHIO LABORERS' FRINGE BENEFIT PROGRAMS, Plaintiffs,
GEAUGA COUNTY EXCAVATING, INC., Defendant.
A. Sargus, Jr. 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. 4), on July 14, 2019, and a Motion
for Order Accelerating and Compelling Discovery (Doc. 7) on
August 19, 2019. The Clerk entered default as to Defendant on
July 15, 2019 (Doc. 6), and the Court granted Plaintiffs'
Motion for Order Accelerating and Compelling Discovery in its
August 20, 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.).
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,
Derek W. Estvanik, 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, Derek W. Estvanik, “to appear and
show cause why they should not be held in contempt of this
Court's August 20, 2019. (Doc. 10 at 2). In that Order,
the Undersigned set a show cause hearing for November 20,
2019. The Order advised that, if Defendant and Mr. Estvanik
failed to appear and show cause, “the Court may order
the arrest of Mr. Estvanik.” (Id.). Copies of
that Order were sent to Defendant and Mr. Estvanik by regular
and certified mail. (Doc. 11).
November 20, 2019, the Undersigned held a show cause hearing
on at 10:00 a.m. Despite having adequate notice of that
hearing, Defendant and Mr. Estvanik 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 DEREK
W. ESTVANIK in CONTEMPT. Specifically, if Defendant does not
comply with the Court's August 20, 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 Derek W. Estvanik and imprison Mr.
Estvanik until such time as Defendant complies with the
Court's August 20, 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
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:
Derek Estvanik c/o Geauga County Excavating Inc. 3119
Valacamp Ave., Warren, OH 44484
Derek Estvanik c/o Geauga County Excavating Inc. P.O. Box
825, Chardon, OH 44024 The 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 findings or
recommendations made herein, may receive further evidence or
may recommit this matter to the Magistrate Judge with
instructions. 28 U.S.C. 636(B)(1).
parties are specifically advised that failure to object to
this R&R will result in a waiver of the right to have the
District Judge review the R&R de novo, and also
operates as a waiver of the right to appeal the decision of
the District Court adopting the R&R. See Thomas v.
Arn, 474 ...