United States District Court, D. Nevada
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Luv N' Care, Ltd.'s
(“LNC”) Motion for Attorney's Fees (ECF No.
12), and Plaintiff's Motion to Hold Blue Basin Medical,
LLC (“Blue Basin”) and Bradley Laurain in
Contempt (ECF No. 13). The Court has considered
Plaintiff's Motions, Blue Basin's Response to
Plaintiff's Memorandum of Attorney's Fees and Costs
(ECF No. 17), Blue Basin and Bradley Laurain's Response
to Plaintiff's Motion for Contempt (ECF No. 18), and
Plaintiff's Replies (ECF Nos. 19, 22). The Court finds as
9, 2018, LNC issued a subpoena to interested party Blue Basin
out of the United States District Court for the Western
District of Louisiana in the matter pending as Luv N'
Care, LTD. v. Lindsey Laurain, Eazy-PZ, LLC, No.
3:16-cv-00777-TAD-JPM. Blue Basin failed to answer the
Subpoena or otherwise respond. ECF No. 1 at 5:8-11; ECF No.
1-2, ¶ 7; ECF No. 1-6, ¶ 11; ECF No. 13 at 3:9-10.
On October 16, 2018, LNC sent a meet and confer letter to
Blue Basin's registered agent Incorp. Services, Inc.
(“Incorp.”), and Mr. William Delaney (one of Blue
Basin's three managing members) seeking to informally
resolve the matter. ECF No. 19 at 2:20-22. Although Incorp.
signed the return receipt for the meet and confer letter,
Blue Basin did not respond.ECF No. 19 at 2:22-24.
November 19, 2018, LNC filed a Motion to Compel Blue Basin to
produce documents responsive to its subpoena in this Court.
ECF No. 1. On December 19, 2018, the Court granted LNC's
Motion, finding Blue Basin in contempt of LNC's subpoena,
ordering Blue Basin to “produce all responsive
documents . . . no later than December 28, 2018, ” and
awarding LNC attorney's fees and costs arising from
LNC's Motion to Compel. ECF No. 11 at 2:11-15. Despite
this Court's Order, Blue Basin did not produce any
alleges Mr. Laurain caused Blue Basin to withhold responsive
documents when the Court entered its Order granting LNC's
Motion to Compel. ECF No. 13 at 3:24-5:6. LNC believes Mr.
Laurain possesses an ulterior motive to withhold documents
because he is married to Lindsey Laurain, the founder and
sole owner of Eazy-PZ, LLC (“EZPZ”), which is the
Defendant in the underlying Louisiana action. ECF No. 1 at
attorneys sent a copy of the Court's December 19, 2018
Order to EZPZ's in-house counsel, Zac Garthe
(“Garthe”), on the day it was docketed because
LNC mistakenly believed Garthe was acting as Blue Basin's
counsel. ECF No. 12-1, ¶¶ 33-38; ECF No. 13 at
3:26-28; ECF No. 17-4, ¶ 3. Garthe responded within an
hour of receipt stating, in part:
Earlier this week, Brad found a box of hard-copy documents,
some of which he said may relate to Blue Basin. If so, I am
not sure if they are responsive to the subpoena. Brad also
told me neither he nor his former business associate retained
any electronic records at all. We were planning to meet to
review the documents this week, but then his father passed
away. Brad is currently in Michigan with his family. I will
connect with him after the Holidays to find out if that box
has any responsive materials in it. If so, we will of course
12-5 (“Garthe email”). When Blue Basin and Mr.
Laurain did not produce responsive documents by the
Court's December 28, 2018 deadline, the instant motions
and related filings followed.
Rule of Civil Procedure (“Fed. R. Civ. P.”) 45(g)
permits a court to hold a nonparty in contempt who, having
been served, fails without adequate excuse to obey the
subpoena or an order related to it. Once the moving party
demonstrates by clear and convincing evidence that the
contemnor has violated a clear and specific court order, the
burden shifts to the contemnor to demonstrate that he or she
took every reasonable step to comply, and to articulate
reasons why compliance was not possible. Bademyan v.
Receivable Mgm't Services Corp., No.
2:11-cv-00154-GMN-NJK, 2009 WL 605789, *2 (D. Nev. March 9,
2009). The “clear and convincing” standard is
more demanding than the preponderance of the evidence
standard generally applicable in civil cases. Battaglia
v. United States, 653 F.2d 419, 422 (9th Cir. 1981);
United States v. Powers, 629 F.2d 619, 626 n.6 (9th
Cir. 1980). To assess the extent to which the contemnor has
taken “every reasonable step” to comply with the
court order, the court may consider (1) a history of
noncompliance, and (2) a failure to comply despite the
pendency of a contempt motion. Bademyan, 2009 WL
605789 at *2 (citations omitted).
threshold matter, the Court finds Magistrate Judge George W.
Foley, Jr.'s December 19, 2018 Order was clear and
specific: “Blue Basin shall produce all responsive
documents, requested by the topics set forth in the Subpoena
no later than December 28, 2018.” ECF No. 11 at
2:10-12. Further, as explained below, the Court also finds
LNC has demonstrated by clear and convincing evidence that
Blue Basin and Mr. Laurain violated the abovementioned Order.
The Court further finds Blue Basin and Mr. Laurain failed to
take any reasonable steps to comply with the Order
considering the interested parties' history of
noncompliance despite having previously been held in
argues Blue Basin should be held in contempt for failing to
comply with this Court's order to produce responsive
documents to its subpoena. ECF No. 13 at 5:11-13. LNC also
argues that Mr. Laurain, Blue Basin's managing member,
should be held in contempt, because he told Garthe that he
possessed potentially responsive documents, but failed to
review and produce them by the deadline. ECF No. 1-4, ¶
7; ECF No. 12-5; ECF No. 13 at 5:6-7; ECF No. 22 at 8, ¶
12-14. “Because Mr. Laurain controls Blue Basin, and
Blue Basin appears to be insolvent, ” LNC asks the
Court to hold Mr. Laurain jointly and severally liable with
Blue Basin for all fees and costs awarded in connection with
enforcing the subpoena, order Blue Basin and Mr. Laurain to
produce the responsive documents immediately without any
further delay, and award LNC attorney's fees and costs
incurred in connection with this motion. ECF No. 13 at
Basin and Mr. Laurain respond to LNC's Motion by saying
they are not in contempt because they had no knowledge of the
Order until after the deadline to respond had passed. ECF No.
18 at 4:10-6:17. Specifically, Blue Basin states it had
notice of this Court's Order for the first time on
January 4, 2019, when a copy of LNC's Memorandum of Fees
and Costs was served on Incorp. ECF No. 18 at 4:19-21. Mr.
Laurain states he was never served with a copy of the Order
at all. ECF No. 18 at 4:22. On the other hand, LNC argues
both Blue Basin and Mr. Laurain first received notice of this
Court's Order from LNC's Motion to Compel, which was
“undisputedly served at Blue Basin's registered
agent [Incorp.] on November 20, 2018.” ECF No. 22 at