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Benion v. Lecom, Inc.

United States District Court, E.D. Michigan, Southern Division

November 2, 2017

HARRY BENION, ZACHARY GOODGALL, DAMON FRANKLIN, and LESLIE MORGAN, Plaintiffs,
v.
LECOM, INCORPORATED, and LECOM COMMUNICATIONS, INC., Defendants. DAVID BENTLEY, CECIL MCNEIL, DEVON HALL, KEON PERSON, KUWAND CARPENTER, and LEONARD O. HINES, JR., Plaintiffs,
v.
LECOM, INCORPORATED, LECOM COMMUNICATIONS, INC., DETROIT COMMUNICATIONS DIRECT, LLC, EPIQ SOLUTIONS, LLC, and JARELLE HANNAH,, Defendants.

          District Judge David M. Lawson

          REPORT AND RECOMMENDATION REGARDING CONTEMPT OF GREAT LINK COMMUNICATIONS, LLC

          MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

         Plaintiffs bring the present case under the Fair Labor Standards Act (“FLSA”), 29 U.S.C.§§ 201 et seq., alleging that Defendants violated the FLSA by failing to pay Plaintiffs overtime for hours worked in excess of 40 hours per week. (Docket no. 1.) Plaintiffs moved this Court to compel non-party Great Link Communications, LLC (“Great Link”) to comply with a subpoena and order Great Link to show cause why it should not be held in contempt. (Docket no. 74.) Plaintiffs also sought costs and expenses associated with enforcing the subpoena. (Id.) The undersigned granted Plaintiffs' motion and directed Great Link to either produce the materials sought by Plaintiffs or appear before the Court on October 19, 2017 to show cause why it should not be held in contempt of court for failing to comply with Plaintiffs' subpoena. (Docket no. 85). Great Link failed to appear as ordered, and Plaintiffs now request the Court to hold Great Link in contempt.

         I. RECOMMENDATION

         For the reasons set forth below, the undersigned recommends that Great Link be held in civil contempt for failure to comply with Plaintiffs' subpoena and failure to appear at the October 19, 2017 hearing. Additionally, the Court should order Great Link to pay reasonable costs and attorney's fees associated with this matter and to produce the documents originally requested in Plaintiffs' subpoena.

         II. REPORT

         A. Governing Law

         Rule 45 of the Federal Rules of Civil Procedure governs the issuance of subpoenas for the discovery of information from third parties. Rule 45(e) provides that the “issuing court may [on its own or on a party's motion] hold in contempt a person who, having been served [with a subpoena], fails without adequate excuse to obey the subpoena.” Fed.R.Civ.P. 45(e).

         Except in cases where a United States Magistrate Judge exercises consent jurisdiction in a civil case under 28 U.S.C. § 636(c) or misdemeanor jurisdiction under 18 U.S.C. § 3401, the Magistrate Judge may not enter an order of civil contempt. Rather, the Magistrate Judge must proceed under 28 U.S.C. § 636(e)(6)(B), which provides as follows:

[T]he 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.

         Civil contempt must be established by clear and convincing evidence. Glover v. Johnson, 138 F.3d 229, 244 (6th Cir.1998). Where it is established that a party has violated a court order, the burden shifts to that party to show an inability to comply. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983).

         B. Certification of Facts

         On March 9, 2017, Plaintiffs' process server personally served upon Great Link a subpoena to produce documents and/or information pursuant to Rule 45 of the Federal Rules of Civil Procedure. (Docket no. 74, Exs. 1, 2.) In the subpoena, Plaintiffs sought communications between Great Link and Defendants regarding the maintenance, operation, supervision and assignment of cable installation technicians, as well as personnel files regarding certain Plaintiffs. (Id. at Ex. 1.)

         Plaintiffs submit that on March 22, 2017, a representative of Great Link appeared at the office of Plaintiffs' attorneys in order to question the subpoena, but that Great Link thereafter failed to comply with the subpoena or to file an objection thereto. On May 10, 2017, Plaintiffs filed a motion to compel Great Link to comply with a subpoena and order Great Link to show cause why it should not be held in contempt. (Docket no. 74.) The undersigned granted Plaintiffs' motion and directed Great Link to either produce the materials sought by Plaintiffs or appear before the Court on October 19, 2017 to show cause why it should not be held in contempt of court for failing ...


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