United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant/Counter-Plaintiff
McCart-Pollak's (“McCart-Pollak”) Motion for
Further Contempt Proceedings (ECF No. 428), filed on March
11, 2019. Plaintiff/Counter-Defendant On Demand Direct
Response, LLC (“On Demand”) filed its Opposition
(ECF No. 433) on March 25, 2019. McCart-Pollak filed her
Reply (ECF No. 438) on April 3, 2019. Also before the Court
is McCart-Pollak's Motion to Enforce Court Order 408 (ECF
No. 429) on March 13, 2019.
requests that the Court conduct further contempt proceedings
against On Demand for failing to respond to discovery
requests and failing to comply with orders of the Court. On
June 19, 2018, the Court accepted and adopted the Magistrate
Judge's report and recommendation that case dispositive
sanctions be imposed against On Demand, including entry of
default judgment on McCart-Pollak's counterclaims.
See ECF No. 362. The Court found that On Demand and
its counsel, Mr. Miller, were in contempt of the Court's
orders. They were ordered to respond to McCart-Pollak's
requests for production nos. 3, 4, 5, 8, 15, 17, 18, 20, and
21 as well as to reimburse McCart-Pollak for reasonable
attorney's fees incurred in bringing the motions that led
to such sanctions. Id. at 3. The Court warned that
failure to comply would result in further monetary sanctions.
On Demand has failed to comply with the Court's order.
January 11, 2019, the Court granted McCart-Pollak's
motion to compel compliance with subpoena to produce
documents. See ECF No. 408. On October 24, 2018,
McCart-Pollak served a subpoena for production of documents
on Spiral Toys via its registered agent, Incorp. Services,
Incorporated. After Spiral Toys failed to respond, she
contacted the registered agent to inquire as to whether the
subpoena was served, the registered agent informed her that
the subpoena was sent to Spiral Toys via email. McCart-Pollak
requests that the Court compel the registered agent to
disclose the name as well as contact information for the
individual associated with the email email@example.com.
She further requests reasonable costs and fees for having to
prepare her motion.
contempt is designed to compel a party's obedience to a
specific and definite court order after that party failed to
take all reasonable steps to comply. GoVideo, Inc. v.
Motion Picture Ass'n of Am., 10 F.3d 693, 695 (9th
Cir. 1993). A fine and imprisonment can be imposed for civil
contempt by serving “as coercive sanctions to compel
the contemnor to do what the law made it his duty to
do.” See § 703 Distinction from Civil
Contempt, 3A Fed. Prac. & Proc. Crim. § 703 (4th
ed.) (quoting Penfield Co. v. Securities and Exchange
Commission, 330 U.S. 585, 590 (1947)). Mankel v.
Gov't Employees Ins. Co., 2017 WL 3234382, at *2 (D.
Nev. July 31, 2017), report and recommendation
adopted, 2017 WL 4248174 (D. Nev. Sept. 25, 2017),
vacated, 2017 WL 7792701 (D. Nev. Nov. 28, 2017).
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
See 28 U.S.C. 636(e)(6)(B)(iii)(2013).
the Court instructed On Demand and Mr. Miller to respond to
discovery requests and to reimburse McCart-Pollak for her
costs in bringing her motion. On Demand and Mr. Miller have
failed to do so. Mr. Abbantangelo states that he has
attempted to contact Mr. Miller by telephone and email but
has not received a response and, therefore, is unable to
provide any substantial response. See Opposition
(ECF No. 433), 2. It appears that neither On Demand nor Mr.
Miller have taken any reasonable steps to comply with the
Court's orders or offer any explanations as to their
noncompliance. As a result, the undersigned magistrate judge
hereby certifies that On Demand and Mr. Miller have defied
the Court's orders by failing to respond to such
discovery requests as instructed by the Court. It is
recommended that On Demand and Mr. Miller be adjudged in
contempt of Court and be ordered to pay McCart-Pollak's
reasonable costs in bringing her motion for contempt (ECF No.
Motion to Enforce Court Order
requests that the Court compel Non-Party Spiral Toys'
registered agent, Incorp. Services, Incorporated, to disclose
the name and contact information for the individual
associated with the email firstname.lastname@example.org. To the
extent that Incorp Services, Incorporated has this
information, it is directed to ...