Vitalis v. Sun Constructors, Inc.

MARK VITALIS, Plaintiff, v. SUN CONSTRUCTORS, INC.; HOVENA L.L.C.,RICHARD "DOC" LANGNER, and EXCEL GROUP, INC., Defendants.

Civil Action No. 2005-0101

DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX

August 20, 2020

Attorneys:

Gordon C. Rhea, Esq.,

St. Thomas, U.S.V.I.

Lee Rohn, Esq.,

St. Croix, U.S.V.I.

For Respondent Lee A. Rohn, Esq.

Charles E. Engeman, Esq.,

David J. Cattie, Esq.,

St. Thomas, U.S.V.I.

For Defendants Sun Constructors, Inc.,

Richard Langner, and Excel Group, Inc.

Carl A. Beckstedt, III, Esq.,

St. Croix, U.S.V.I.

For Hovensa L.L.C.

MEMORANDUM OPINION

Lewis, Chief Judge

THIS MATTER is before the Court on an Order to Show Cause (Dkt. No. 863) why Lee A. Rohn, Esq. ("Atty. Rohn") should not be held in contempt based on the facts certified by Magistrate Judge George W. Cannon Jr. under 28 U.S.C. § 636(e)(6)(B)(iii). (Dkt. No. 841). In his Order, Magistrate Judge Cannon found that Atty. Rohn failed to comply with a validly served subpoena duces tecum without adequate excuse. Id. at 3.

Following an evidentiary hearing and supplemental briefing by the parties, the Court finds that there is clear and convincing evidence that Atty. Rohn was properly served with a valid subpoena duces tecum; that she was aware of its terms; and that she failed to comply with that subpoena. The Court also finds that Atty. Rohn's excuse for her noncompliance is inadequate.

I. BACKGROUND

A. The Initial Contempt Order

In this protracted case, Plaintiff Mark Vitalis ("Vitalis") brought claims against multiple defendants asserting that he was discriminated against in employment based upon his race and national origin. (Dkt. No. 1). The case was vigorously litigated by all parties with Atty. Rohn representing Vitalis. The presiding Judge, the Honorable Timothy Savage,¹ entered summary judgment in favor of several Defendants, but held that Vitalis' federal and local discrimination claims against Defendant Sun Constructors, Inc. ("Sun Constructors") should proceed to trial. (Dkt. No. 400, 493). Following a three-day trial, a jury returned a verdict for Sun Constructors. (Dkt. Nos. 548-549). Vitalis appealed to the Third Circuit Court of Appeals—challenging the summary judgment rulings, the Court's evidentiary rulings before and during trial, as well as the "[a]ttitude of the Judge towards counsel." (Dkt. No. 550 at 1). All rulings were affirmed and the challenge to the Judge's demeanor was rejected by the Appellate Court. (Dkt. No. 838-1).²

The Judgment entered following the jury trial did not end the Vitalis litigation in the District Court. All Defendants filed motions seeking costs under Fed. R. Civ. P. 54(d)(1) and motions for attorneys' fees under federal and local statutes. (Dkt. Nos. 552-558). Vitalis requested that the Court stay any ruling on costs and attorneys' fees pending resolution of his appeal, but the Court denied this motion. (Dkt. No. 560, 571). Shortly thereafter, Vitalis filed a Motion to Recuse Judge Savage. Plaintiffs represented by Atty. Rohn in other cases over which Judge Savage presided (collectively "Plaintiffs") filed nearly identical motions in their respective cases. (Dkt. Nos. 579, 594). The Motions for Recusal focused on events before, during and after three trials over which Judge Savage presided and in which Atty. Rohn represented the Plaintiffs—Wallace v. Kmart (1:2002-cv-107),³ McNamara v. Kmart (1:2008-cv-18),⁴ and the instant case. (Dkt. No. 579).⁵

Attached to the Motions to Recuse, Atty. Rohn provided her own Affirmation alleging that various statements made, and actions taken, by Judge Savage reflected judicial bias. Nearly all of her allegations related to issues raised in the McNamara appeal and events occurring during the Wallace and Vitalis trials. (Dkt. No. 579-1). Also attached to the Motions were affidavits or declarations from several of Atty. Rohn's clients, her co-counsel, her personal friend of manyyears, and two expert witnesses regularly retained by Atty. Rohn. Plaintiffs claimed that their combined allegations warranted Judge Savage's recusal from all of Atty. Rohn's cases. (Dkt. No. 579 at 1-2). Plaintiffs also attached two transcripts to the Motions to Recuse—a pretrial evidentiary hearing and the trial transcript from the Vitalis case. (Dkt. No. 579-1 at 3).

In response to the multiple recusal motions, Judge Savage consolidated six other cases with the instant matter to address the recusal issue. (Dkt. No. 594).⁶ Defendants from some of the consolidated cases—primarily Kmart, Sun Constructors, and Sun Constructors' related entities (the "Sun Defendants")⁷— requested time to conduct discovery on Plaintiffs' allegations before responding to the Motions to Recuse. (Dkt. Nos. 584, 589).

In response to the discovery request, Plaintiffs conceded that discovery was appropriate and asserted that they also intended to conduct discovery, including deposing Judge Savage. (Dkt. No. 590 at 1-2). Plaintiffs challenged two aspects of Defendants' requested discovery. First, Plaintiffs objected to any questions during Atty. Rohn's proposed deposition about a criminal case pending against her in Superior Court. Id. at 2-4. Plaintiffs also objected to Defendants' purported intent to solicit affidavits from Virgin Islands attorneys who might not like Atty. Rohn. Id. at 4.

In response, the Sun Defendants challenged Plaintiffs' need for discovery, arguing that the recusal motions should be sufficient to stand on their own. (Dkt. No. 591 at 1-2). The Sun Defendants also asserted that Atty. Rohn placed her personal credibility "front and center," and therefore they were entitled to explore her credibility. Id. Finally, the Sun Defendants argued that deposing federal judges was contrary to well-established legal principles. Id.

On July 7, 2010, Judge Savage issued an Order establishing deadlines for Defendants to complete recusal discovery and to file their responses to Plaintiffs' motions. The same Order scheduled Atty. Rohn for a video-taped deposition to be taken by Defendants before the Magistrate Judge, with the restriction that Defendants could not question Atty. Rohn about her pending criminal charge. (Dkt. No. 595 at ¶¶ 3-4). The Order was silent regarding Plaintiffs' request for discovery.

On the same day, Judge Savage issued an Order, sua sponte, citing Fed. R. Civ. P. 11. (Dkt. No. 596). The Order directed Plaintiffs and Atty. Rohn to provide by July 16, 2010, the names and contact information for (1) each person they claimed had knowledge of the facts alleged in the recusal motions; and (2) each person contacted by Atty. Rohn's office to provide information supporting the motions, regardless of that person's cooperation. Id.

On July 15, 2010, the Sun Defendants filed a Notice of Deposition and Subpoena Duces Tecum rescheduling Atty. Rohn's video-taped deposition for August 12, 2010 which Atty. Rohn received through an ECF filing. (Dkt. 606 at 1-2; 649-1 at 18-20). Atty. Rohn also was personally served with the subpoena duces tecum. (Dkt. No. 649-1 at 18-20). The subpoena directed Atty.Rohn to bring to the deposition any documents that fell within nine categories itemized on a list attached to the subpoena. (Dkt. No. 606-1 at 3).⁸

At about the same time, Kmart—a defendant in two of the consolidated cases—served written interrogatories and requests for documents on Atty. Rohn. (Dkt. No. 611). Kmart also filed a motion seeking a shortened response time for the discovery requests in order to obtain the responses before Atty. Rohn's deposition. (Dkt. No. 610). In an Order dated August 2, 2010 ("the August 2nd Order"), the Court provided a schedule directing Plaintiffs to serve their responses to Kmart's Request for Production of Documents by August 9, 2010. (Dkt. No. 613). The August 2nd Order also required Plaintiffs to file objections to any specific document request and submit any withheld documents to the Court by the same date so the Court could rule on the objections. Id. at 1-2.

On August 6, 2010, the Third Circuit Court of Appeals docketed Plaintiffs' Petition for Writ of Mandamus ("Mandamus Petition"). (Third Cir. Case No. 10-3345, Doc. 003110243424, at 1-2).⁹ In the Mandamus Petition, Plaintiffs requested that the Appellate Court vacate the DistrictCourt's Order granting Defendants recusal discovery while denying Plaintiffs' request for the same. Id. at 25. Plaintiffs also asserted that the District Court's Orders improperly compelled disclosure of information that was irrelevant or protected by the attorney-client privilege or the work-product doctrine. Id. at 47.¹⁰ Additionally, Plaintiffs asked the Appellate Court to direct that all discovery issues be referred to a Magistrate Judge as was "normal District of [the] Virgin Islands discovery practice." Id. at 56-57. Finally, Plaintiffs objected to the Order directing that Atty. Rohn be deposed, claiming that there was no reasonable basis to depose her. Id. at 59-60.

On August 5, 2010, Plaintiffs filed in the District Court an "Emergency Motion to Stay Consolidated Discovery" pending the Third Circuit's ruling on their Mandamus Petition. (Dkt. No. 614). The same omnibus filing also included a "Motion to Reconsider Order Granting Expedited Discovery and for Protective Order" ("Motion for Protective Order"). Id. In the Motion for Protective Order, Plaintiffs challenged the August 2nd Order requiring expedited discovery by asserting that Kmart's discovery requests—interrogatories and document requests—sought irrelevant and privileged materials. Id. at 4-5. In the same motion, Plaintiffs also objected to the Sun Defendants' subpoena claiming that the documents requested were irrelevant and/or sought attorney-client and work-product information. Id. at 6, 11-16. Finally, Plaintiffs asserted that all the discovery requests, coupled with the August 2nd Order expediting discovery, made the discovery unduly burdensome and harassing. Id. at 16-19.¹¹

Judge Savage denied the Motion to Stay and Motion for Protective Order on August 6,...