United States District Court, D. Nevada
TRUSTEES OF THE BRICKLAYERS & ALLIED CRAFTWORKERS LOCAL 13 DEFINED CONTRIBUTION PENSION TRUST FOR SOUTHERN NEVADA, et al., Plaintiffs,
TILE CONCEPTS, INC, et al., Defendants.
FOLEY, JR., United States Magistrate Judge
matter is before the Court on Defendants' failure to
comply with the Court's Order granting Plaintiff's
Motion for Order to Show Cause (ECF No. 17), filed on March
13, 2016, Plaintiffs filed their Motion for Default Judgment.
ECF No. 9. The Court set the matter for hearing on November
16, 2016 and Defendants failed to be present. See
ECF No. 11, 12. On December 7, 2016, the undersigned issued a
Report and Recommendation (ECF No. 13) recommending that the
Motion for Default Judgment be granted in favor of
Plaintiffs, including that Defendants be ordered to submit to
an audit by an independent third party of Plaintiffs'
choosing within 14 days of the judgment. On January 25, 2017,
the Court adopted the Report and Recommendation in full. ECF
No. 14. On January 26, 2017, the Clerk of the Court issued
judgment in favor of Plaintiffs. ECF No. 15. Defendants
failed to submit to an audit.
March 3, 2017, Plaintiffs filed their motion for order to
show cause for Defendants' failure to submit to an audit.
On March 21, 2017, the Court granted Plaintiffs' motion
for order to show cause. The Court instructed Defendants to
show cause, in writing, why sanctions should not be imposed
for their failure to comply with this Court's Order and
set this matter for hearing on April 19, 2017. See
ECF No. 18. Plaintiffs served a copy of the Court's order
on Defendants on March 22, 2017. See ECF No. 19.
Defendants failed to show cause in writing and failed to be
present for the April 19, 2017 hearing. See ECF No.
20. Additionally, Plaintiffs request an award of
attorney's fees and costs associated with bringing their
motion. See ECF No. 17, pg. 4. Plaintiff argues that
Defendants acted in bad faith by refusing to obey the
Court's orders and delaying the audit. Id.
have an inherent power to punish contempt of their authority
and to coerce compliance with orders. United States v.
Powers, 629 F.2d 619, 624 (9th Cir. 1980). Civil
contempt is designed to compel a party's obedience to a
specific and definite court order. GoVideo, Inc. v.
Motion Picture Ass'n of Am., 10 F.3d 693, 695 (9th
Cir. 1993). A party fails to act as ordered by the court when
it fails to take “all reasonable steps within its power
to insure compliance with the [court's] order.”
In re Crystal Palace Gambling Hall, Inc., 817 F.2d
1361, 1365 (9th Cir. 1987). The party alleging civil contempt
must demonstrate by clear and convincing evidence that the
alleged contemnor failed to obey the court's order.
GoVideo, 10 F.3d at 695.
magistrate judge's civil contempt power is governed by 28
U.S.C. § 636(e), which states that where:
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.
28 U.S.C. § 636(e)(6)(B)(iii) (2013).
district judge then hears the evidence to determine whether
the conduct warrants punishment. The district judge may
impose contempt sanctions in the same manner and to the same
extent as for a contempt committed before the district judge.
Aldridge v. Young, 782 F.Supp. 1457, 1459 (D. Nev.
to 28 U.S.C. § 636(e)(6), the undersigned magistrate
judge hereby certifies the following facts that may support a
finding that Defendants are in civil contempt of court. On
January 25, 2017, the Court granted Plaintiffs' Motion
for Default Judgment and ordered judgment be entered in favor
of Plaintiffs. The Court ordered Defendants to submit to an
audit within 14 days of the date of judgment. See
ECF No. 14. On January 26, 2017, the Clerk of the Court
issued judgment in favor of Plaintiffs. ECF No. 15.
Defendants failed to submit to an audit. On March 21, 2017,
the Court ordered Defendants to show cause in writing why
sanctions should not be imposed for their failure to comply
with this Court's Order and set the matter for hearing.
The Court warned Defendants that failure to comply may result
in the imposition of sanctions. See ECF No. 18.
Despite notice and an opportunity to be heard, Defendants
again failed to comply with the Court's orders.
Defendants failed to respond in writing and did not appear
for the April 19, 2017 hearing. Accordingly, IT IS HEREBY