United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, LTNITED STATES MAGISTRATE IUDGE
before the court is Plaintiffs Marvin Kent Powell and Shawna
Powell's motion to find Defendant in contempt for failure to
obey this Court's asset hearing ruling.
Procedure for contempt sanctions.
can be no question that courts have inherent power to enforce
compliance with their lawful orders through civil
contempt.” Shillitani v. United States, 384
U.S. 364, 370 (1966). Similarly, a “court's
interest in ensuring a party's compliance with its orders
is a great one, enforceable by fines or imprisonment.”
Ohlander v. Larson, 114 F.3d 1531, 1541 (10th Cir.
1997) (citation omitted).
court begins with a discussion of its somewhat circumscribed
powers over civil contempt proceedings. In a matter referred
to a magistrate judge under 28 U.S.C. 636(b) in which the
magistrate judge believes an act of civil contempt has been
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.A. § 636(e)(6)(B)(iii). In certifying the facts
under Section 636(e), the magistrate judge's role is
“to determine whether the moving party can adduce
sufficient evidence to establish a prima facie case of
contempt.” Bowens v. Atl. Maint. Corp., 546
F.Supp.2d 55, 71 (E.D.N.Y. 2008). “If the [magistrate
judge] finds [the nonmovant's] explanation to be
satisfactory, she may choose not to certify the matter for
further proceedings . . . On the other hand, should the
[magistrate judge] not be satisfied with [the
nonmovant's] explanation, she cannot adjudicate the
matter herself, but must follow the certification process of
§ 636(e).” In re Kitterman, 696
F.Supp. 1366, 1370 (D. Nev. 1988); see also
Bowens v. Atl. Maintenance Corp., 546 F.Supp.2d 55,
71 (E.D.N.Y. 2008) (“[T]he magistrate judge may conduct
a hearing, but the magistrate judge functions only to certify
the facts and not to issue any order of contempt.”)
(internal quotation and citations omitted).
certification of the facts supporting a finding of contempt,
a district court must first hold an evidentiary hearing to
make de novo factual determinations, including relevant
credibility determinations, before it can impose contempt
sanctions. See Bowens, 546 F.Supp.2d at 71 (citing
Taberer v. Armstrong World Indus., Inc., 954 F.2d
888, 907-08 (3d Cir. 1992)).
motion for civil contempt, the moving party-here,
Plaintiff-has the “burden of proving, by clear and
convincing evidence, that a valid court order existed, that
[Defendant Wilbanks] had knowledge of the order, and that
[Defendants] disobeyed the order.” United States v.
Ford, 514 F.3d 1047, 1051 (10th Cir. 2008) (citation
omitted). The first and second requirements do not appear
disputed: Defendant became aware of this Court's orders
as evidenced by Plaintiffs' filings of proof of service.
The issue here is whether Defendant Wilbanks has complied
with this Court's orders.
Certification of facts.
hereby find and certify the following facts material to the
issue of contempt:
Judge Joe Heaton referred the matter to the undersigned
pursuant to 28 U.S.C. § 636(b)(3). Doc. 11. Plaintiffs
registered the foreign judgment and filed an affidavit for
garnishment that Defendant Wilbanks is indebted to Plaintiffs
in the amount of $2, 032, 675.07. Docs. 1, 5. Plaintiffs now
seek contempt sanctions. Doc. 56.
December 14, 2018, pursuant to Fed.R.Civ.P. 69, 33 and 34,
Plaintiffs propounded and served written discovery requests,
including Requests for Production and Interrogatories, upon
Defendant Wilbanks. See “Plaintiff's First
Set of Post-Judgment Interrogatories and Request for
Production of Documents” (“Plaintiffs'
Discovery Requests”), Doc. 47, Att. 2; see
Doc. 13 (Certificate of Service demonstrating service of
Plaintiffs' discovery requests upon Defendant Wilbanks).
January 31, 2019, the Court issued an “Order to Appear
and Answer as to Assets, and Forbidding the Transfer or other
Disposition of Property” (“HOA Order to
Appear”), which Order commanded Defendant Wilbanks to