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Powell v. Wilbanks Securities, Inc.

United States District Court, W.D. Oklahoma

May 1, 2019

MARVIN KENT POWELL and SHAWNA POWELL, Plaintiffs,
v.
WILBANKS SECURITIES, INC., an Oklahoma corporation, and AARON BRONELLE WILBANKS, individually, Defendants.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL, LTNITED STATES MAGISTRATE IUDGE

         Pending before the court is Plaintiffs Marvin Kent Powell and Shawna Powell's motion to find Defendant[1] in contempt for failure to obey this Court's asset hearing ruling.

         I. Procedure for contempt sanctions.

         “There 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).

         The 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 committed:

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).

         Upon 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)).

         In a 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.

         II. Certification of facts.

         I hereby find and certify the following facts material to the issue of contempt:

         Chief 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.

         1. On 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).

         2. On 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 ...


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