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On Demand Direct Response, LLC v. McCart-Pollak

United States District Court, D. Nevada

March 25, 2019

ON DEMAND DIRECT RESPONSE, LLC, Plaintiff,
v.
SHANA LEE MCCART-POLLAK, Defendant.

          ORDER AND REPORT AND RECOMMENDATION

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE.

         BACKGROUND

         On January 14, 2019, the Court issued an order granting Defendant McCart-Pollak (“McCart-Pollak”)'s motion to compel compliance with a subpoena to produce documents on non-party Spiral Toys and granted McCart-Pollak an award of sanctions in the amount of costs incurred in relation to her motion to compel. See ECF No. 408. In addition, on January 29, 2019, the Court issued an order granting McCart-Pollak's motion to compel compliance with subpoena to produce documents on non-party Mark Meyers, Chief Executive Officer of Spiral Toys, and granted McCart-Pollak an award of sanctions in the amount of costs incurred in relation to her motion to compel. See ECF No. 411. Although the Court granted McCart-Pollak's motions to compel, the Court denied her request to hold Spiral Toys and Mark Meyers in contempt. Rule 45 of the Rules of Civil Procedure authorizes sanctions against a non-party by holding it in contempt. See Fed. R. Civ. P. 45(g); Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1224 (9th Cir. 2018) (“And the standard for a contempt finding differs from a Rule 37 sanction.”); see also Genx Processors Mauritius Ltd. v. Jackson, 2018 WL 5777485, at *9 (D. Nev. Nov. 2, 2018) (“Rule 37 applies to motions to compel production only from a “party” under Rule 34, which in turn provides that motions to compel production from nonparties are governed by Rule 45.”)

         The award of costs to McCart-Pollak was, therefore, granted in error. The Court hereby withdraws its grant of costs to McCart-Pollak for expenses incurred in relation to her motions to compel compliance with a subpoena to produce documents on non-parties Spiral Toys and Mark Meyers.

         DISCUSSION

         The subpoenas to produce documents to Spiral Toys and to Mark Meyers are governed by Rule 45 of the Federal Rules of Civil Procedure. Pursuant to Rule 45(g), a court may “hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” Poly-Med, Inc. v. Novus Sci. PTE Ltd., 2017 WL 2291942, at *2 (S.D. Cal. May 25, 2017). The party moving for contempt has the burden to establish by clear and convincing evidence that the contemnor has violated a clear and specific court order. Forsythe v. Brown, 281 F.R.D. 577, 587 (D. Nev. 2012), report and recommendation adopted, 2012 WL 1833393 (D. Nev. May 18, 2012). If the moving party establishes by clear and convincing evidence that the contemnor violated a clear and specific court order, then the burden shifts to the contemnor to show that he or she took every reasonable step to comply and to explain why compliance was not possible. Id. To assess the extent to which the contemnor has taken “every reasonable step” to comply with the court order, the court can consider “(1) a history of noncompliance and (2) failure to comply despite the pendency of a contempt motion.” Id.

         “Sanctions for civil contempt may be imposed to coerce obedience to a court order, or to compensate the party pursuing the contempt action for injuries resulting from the contemptuous behavior, or both.” Taddeo v. Am. Invsco Corp., 2015 WL 751072, at *2 (D. Nev. Feb. 20, 2015) (quoting Gen. Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir.1986)). The civil contempt power of a magistrate judge regarding failure to abide by a discovery order is governed by 28 U.S.C. § 636(e), which provides as follows:

the magistrate shall forthwith certify the facts to a judge of the district court and may serve or cause to be served upon any person whose behavior is brought into question under this section an order requiring such person to appear before a judge of that court upon a day certain to show cause why he should not be adjudged in contempt by reason of the facts so certified.

See 28 U.S.C. 636(e)(6)(B)(iii)(2013).

         I. Certification of Facts as to Spiral Toys

         Pursuant to 28 U.S.C § 636(e), the undersigned certifies the following facts that appear to provide grounds for a finding of civil contempt against non-party Spiral Toys:

         1. That on October 24, 2018, McCart-Pollak served a subpoena for the production of documents on the registered agent of non-party Spiral Toys. The subpoena required Spiral Toys to produce documents on November 13, 2018.

         2. That Spiral Toys failed to serve any objection to the subpoena and did not appear as designated in the subpoena.

         3. That Spiral Toys did not produce documents in response to the subpoena ...


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