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Decker Construction Co. v. Wesex Corp.

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

January 6, 2020

DECKER CONSTRUCTION CO., Plaintiff,
v.
WESEX CORPORATION, et al., Defendants.

          Algenon L. Marbley Chief Judge

          ORDER, REPORT AND RECOMMENDATION, AND CERTIFICATION OF FACTS

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned pursuant to General Order No. COL:14-01(IV)(C)(2), for consideration of Third-Party Plaintiff CCL Label, Inc.'s Motion to Show Cause Against Gregory Koledin. (ECF No. 83.) Third-Party Plaintiff CCL Label, Inc. (“CCL”) moves this Court for an order finding Mr. Koledin in contempt for failure to comply with the Court's October 29, 2019 Opinion and Order (ECF No. 80), requiring him to comply with CCL's subpoena and for a deposition and to produce the documents. For the reasons that follow, it is RECOMMENDED that CCL's Motion to Show Cause be DENIED WITHOUT PREJUDICE.

         I. MAGISTRATE JUDGE'S AUTHORITY REGARDING CONTEMPT

         Section 636(e) of the United States Magistrate Judges Act governs the contempt authority of magistrate judges. 28 U.S.C. § 636(e)(1) (“A United States magistrate judge serving under this chapter shall have within the territorial jurisdiction prescribed by the appointment of such magistrate judge the power to exercise contempt authority as set forth in this subsection.”) Section (e)(6)(B), which applies in civil cases where the parties have not consented to final judgment by the magistrate judge, provides 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-
(i) the act committed in the magistrate judge's presence may, in the opinion of the magistrate judge, constitute a serious criminal contempt punishable by penalties exceeding those set forth in paragraph (5) of this subsection,
(ii) the act that constitutes a criminal contempt occurs outside the presence of the magistrate judge, or
(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) (emphasis in original).

         Thus, a “magistrate judge's role on a motion for contempt in non-consent cases is to certify facts relevant to the issue of contempt to the district judge.” Euchlid Chem. Co. v. Ware, No. 1:11-cv-135, 2013 WL 6632436, at *1 (S.D. Ohio Dec. 17, 2013) (collecting cases establishing the proposition). Such a certification “serves to determine whether the moving party can adduce sufficient evidence to establish a prima facie case of contempt.” In re Warren Easterling Litigation, No. 3:14-mc-11, 2014 WL 3895726, at *1 (S.D. Ohio Aug. 8, 2014) (internal quotation marks and citation omitted).

         II. ...


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