Mesa v. Luis Garcia Land Serv., Co.

218 F.Supp.3d 1375

Francisco Javier Hernandez MESA, Plaintiff,

v.LUIS GARCIA LAND SERVICE, CO., and Luis E. Garcia, Defendants.

CASE NO. 15–22995–CIV–SIMONTON

United States District Court, S.D. Florida.

Signed November 15, 2016

Allyson Morgado, Corona Law Firm, P.A., Chad Thomas Valdes, Miami, FL, Joshua Howard Sheskin, Rivkah Fay Jaff, J.H. Zidell P.A., Stephen Michael Fox, Jr., Jamie H. Zidell, Miami Beach, FL, Steven C. Fraser, Steven C. Fraser, P.A., Hallandale Beach, FL, for Plaintiff.

Adi Amit, Joshua Maxwell Bloom, Natalie S. Pappas, Lubell & Rosen, LLC, Fort Lauderdale, FL, for Defendant.

ORDER FINDING LUIS MARTINEZ IN CIVIL CONTEMPT FOLLOWING SHOW CAUSE HEARING

ANDREA M. SIMONTON, UNITED STATES MAGISTRATE JUDGE

This matter was before the Court for a show cause hearing related to the failure of non-party witness Luis Martinez to appear for his depositions, ECF Nos. [51] [55]. Pursuant to the consent of the Parties, the Honorable Kathleen M. Williams, the United States District Judge assigned to this case, has referred this matter to the undersigned Magistrate Judge to take all necessary and proper action as required by law, through and including trial by jury and entry of final judgment, ECF Nos. [62] [63]. For the following reasons, the undersigned finds Luis Martinez in civil contempt for failing to appear at a deposition pursuant to a properly served subpoena and failing to appear at the show cause hearing regarding his failure to appear at the previously set deposition.

I. BACKGROUND

This FLSA action was commenced when Plaintiff Francisco Javier Hernandez Mesa filed a Complaint against Defendants Luis Garcia Land Service, Co., and Luis E. Garcia alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.

On or about April 14, 2016, Plaintiff served deposition subpoenas on six (6) individuals, including Luis Martinez, purportedly with knowledge and information relevant to this matter. Mr. Martinez was served by personal service at 14601 N.W. 185th St., Miami, Fl 33018. Mr. Martinez, as well as the other witnesses who had been served, failed to appear at their scheduled depositions on April 21, 2016.¹ Plaintiff therefore set this matter for a discovery hearing wherein Plaintiff sought to compel the Defendant to provide accurate contact information as to those witnesses and requested that the Court require those witnesses to appear at their depositions.² At the hearing, the undersigned directed to Defendant to provide the Plaintiff with accurate contact information for the non-party witnesses, ECF No. [48].

On May 6, 2016, at a follow up hearing on the matter, and after Counsel for the Defendant provided the correct contact information for the witnesses, Counsel for the Plaintiff confirmed that the contact information that Plaintiff originally had for Luis Martinez was correct and thus Luis Martinez had been properly served with a deposition subpoena at his residence. Based upon that representation, at the hearing, the Court orally ruled, among other things, that Luis Martinez, as well as the other witnesses, were required to appear for their re-noticed depositions or to appear at a show cause hearing on June 3, 2016. The Court cautioned that the failure of any properly served witnesses, including Luis Martinez, to appear at their deposition in compliance with the Court's Order could constitute contempt, but further advised that the contempt/show cause hearing would be cancelled as to any individual witness who appeared for his/her deposition on or before June 1, 2016. The Court directed the Plaintiff to serve a Notice of Contempt Hearing on the witnesses and directed the witnesses to appear for their depositions on a date selected by the Plaintiff. The Court's Order setting the June 3, 2016, show cause hearing was mailed by the Court to Mr. Martinez on May 24, 2016, ECF No. [55].

II. EVIDENTIARY HEARING

At the June 3, 2016, hearing on the order to show cause, Counsel for both the Plaintiff and Defendant appeared. Mr. Martinez failed to appear. The Plaintiff therefore moved to have the Court hold Luis Martinez in civil contempt and to compel him to appear for his deposition.

In support of her request, Plaintiff's Counsel, Allyson Morgado, testified, under oath, that a deposition subpoena was initially served on Mr. Martinez on April 13, 2016. The deposition subpoena, which was admitted into evidence as Plaintiff's Exhibit 1, reflects that Mr. Martinez was served at 14601 NW 185th Street, # 9, Miami, Fl 33018 on April 14, 2016, for a deposition that was set for April 21, 2016. Counsel for the Plaintiff testified that on the date of the scheduled deposition, Mr. Martinez failed to appear.

Plaintiff's Counsel explained that when the process server attempted to serve Mr. Martinez a second time, following the May 6, 2016 hearing before the Court, the property, which is located in a trailer park, was chained closed and there were two pit bulls inside the gate. The process server shouted Mr. Martinez's name but was unable to serve him. Counsel for the Plaintiff stated that on May 11, 2016, she then personally mailed the Notice of Taking Deposition, the Notice of Contempt Hearing and the new subpoena for a deposition set for May 23, 2016. Those documents were entered into evidence as Plaintiff's Exhibit 2, ECF No. [59]. The Notice of Contempt Hearing mailed by the Plaintiff advised that the Court would hold a hearing on June 3, 2016 for those individuals that did not appear for their depositions on or before June 1, 2016, ECF No. [53]. In addition, the Notice advised that failure to appear at the deposition or at the show cause hearing could result in a finding of contempt and the issuance of an arrest warrant. Counsel for the Plaintiff testified that Mr. Martinez did not appear for his May 23, 2016 deposition.

Counsel for the Plaintiff further testified that the items mailed to Mr. Martinez had not been returned to her office as undeliverable, and noted that Mr. Martinez's address had been provided to her by the Plaintiff, who had been co-workers with Mr. Martinez and knew his address. Counsel additionally testified that the check that accompanied the original subpoena served on Mr. Martinez had not been cashed and had not been returned to Plaintiff's Counsel. Finally, Plaintiff's Counsel testified that she never had any contact with Mr. Martinez, and that she had no knowledge of any reason why he failed to appear.

Plaintiff argued that the Court should hold Mr. Martinez in civil contempt for failing to appear at his deposition and for failing to appear in Court for the show cause hearing. Plaintiff further asserted that holding Mr. Martinez in contempt would be the only way to ensure that he would appear for a deposition and argued that the imposition of a fine would likely not ensure his appearance at a deposition because Mr. Martinez had not demonstrated respect for court proceedings.

Defendant's Counsel stated that Mr. Martinez no longer works for her client, and that her client had not had any contact with Mr. Martinez.

III. FINDING OF FACTS ³

1. On April 14, 2016, Luis Martinez was served with a deposition subpoena at his residence at 14601 NW 185th Street, # 9, Miami, Fl 33018 for a deposition set by Plaintiff Hernandez Mesa for April 21, 2016, to be held at Plaintiff's Counsel's Office.

2. Luis Martinez failed to appear for the deposition on April 21, 2016. He did not return or cash the check for the witness fee that accompanied the subpoena.

3. On May 4 and 6, 2016, hearings were held before the undersigned regarding Martinez's failure to appear for his deposition, wherein the Court ordered the witness to appear for a newly noticed deposition on or before June 1, 2016, ECF No. [55]. The undersigned further ordered that if the witness failed to appear, he would have to appear for a show cause hearing on June 3, 2016, ECF No. [55] at 4.

4. The Plaintiff was unable to serve Luis Martinez personally with the second deposition subpoena notice.

5. On May 11, 2016, Plaintiff's Counsel mailed to Mr. Luis Martinez's residence, a Notice of Taking Depositions and a Subpoena for Deposition which set Mr. Martinez's deposition for May 23, 2016. Plaintiff's Counsel also mailed a Notice of Contempt Hearing to Mr. Martinez which stated if the witness did not appear for a deposition on or before June 1, 2016, the Court would hold a hearing on June 3, 2016, which might result in a finding of contempt and the issuance of an arrest warrant.

6. On May 24, 2016, the Court's written Show Cause Order was mailed to Luis Martinez at 14601 NW 185th Street, # 9, Miami, Fl 33018 by the chambers of the undersigned. The Order warned that failure to sit for a deposition prior to June 1, 2016, or to appear at the June 6, 2016, show cause hearing might result in a finding of contempt and the imposition of a fine or sanctions, including the issuance of an arrest warrant.

7. Luis Martinez did not appear for the second deposition and did not appear at the June 3, 2016 show cause hearing.

IV. LEGAL ANALYSIS AND FINDING OF CONTEMPT

Courts possess inherent power to enforce compliance with their lawful orders through civil contempt. Citronelle–Mobile Gathering, Inc. v. Watkins , 943 F.2d 1297, 1301 (11th Cir. 1991) (citing Shillitani v. United States , 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966) ). A party seeking civil contempt bears the initial burden of proving by clear and convincing evidence that the alleged contemnor has violated an outstanding court order. S.E.C. v. Greenberg , 105 F.Supp.3d 1342 (S.D. Fla. 2015) (citing CFTC v. Wellington Precious Metals, Inc. , 950 F.2d 1525, 1529 (11th Cir. 1992) ). A finding of civil contempt must be supported by clear and...