United States District Court, N.D. Mississippi, Aberdeen Division
ORDER ON SANCTIONS
Sharion Aycock UNITED STATES DISTRICT JUDGE
before the Court are the Plaintiff's Motions [304, 305]
for remedial and compensatory sanctions against two witnesses
that he alleges failed to appear for depositions on two
separate occasions. The witnesses filed a late Response and
Countermotion  for sanctions against the
Plaintiff. After briefing and a hearing on the
issues, the Court finds as follows:
of the discovery in this case the pro se Plaintiff
issued two subpoenas, with prior Court approval, to take
depositions of Emmett Atwood and Kade Atwood. The depositions
were scheduled for February 22, 2016. Emmett Atwood and Kade
Atwood were personally served with the subpoenas by two
separate process servers. The process returns, signed by the
process servers under penalty of perjury, indicate that
Emmett Atwood and Kade Atwood were served with the subpoenas
and witness and mileage fees in the amount of $65.00 each.
Atwood and Kade Atwood did not appear for their depositions
scheduled for February 22, 2016. The Plaintiff filed motions
to compel [236, 242] their appearances. The Magistrate Judge
in this case entered an Order  granting the
Plaintiff's request to compel both witnesses'
appearances. The Magistrate Judge ordered Emmett Atwood and
Kade Atwood to appear at a future deposition, and his order
states, “Failing to attend theses depositions is
tantamount to violating a court order, and as such, whoever
does not attend could be held in contempt of court and
sanctioned. Order  Aug. 19, 2016.
Atwood and Kade Atwood were again personally served with new
subpoenas and a copy of the Magistrate Judge's Order
commanding their appearances. The Plaintiff did not attach
witness and mileage fees to the second set of subpoenas
because the witness fees had already been submitted. Neither
Emmett Atwood nor Kade Atwood appeared for their second
scheduled deposition. Emmett Atwood and Kade Atwood were
eventually deposed in this case after communicating with
defense counsel from the State Attorney General's office.
The Plaintiff now requests that Emmett Atwood and Kade Atwood
reimburse him for the expenses of the first two failed
deposition attempts and for his costs to prosecute this
Court finds, after reviewing the record as a whole, and based
on the testimony and evidence presented at a hearing on the
issue, that Emmett Atwood and Kade Atwood never had any
intention of appearing at the depositions requested by the
Plaintiff. It is clear that these witnesses have personal
issues with the Plaintiff for a variety of reasons, some
related to this case and some not, and that they willfully
ignored the subpoenas. Emmett Atwood and Kade Atwood's
primary excuse for not appearing was that they relied on the
advice of Emmett Atwood's lawyer, who instructed him that
they he was not required to comply with the subpoena because
witness fees were not attached. Kade Atwood claims he
followed that advice, even though admittedly he did not
consult with an attorney himself and instead took the word of
his uncle Emmett Atwood.
course, Federal Rule of Civil Procedure 45 requires
simultaneous tendering of witness and mileage fees.
See Fed. R. Civ. P. 45(b)(1); In re Dennis,
330 F.3d 696, 705 (5th Cir. 2003) (collecting cases). The
witnesses have not brought forth any authority however, to
support their assertion that witness fees must be provided a
second time for a re-issued subpoena. This assertion strains
the limits of common sense. In any event, while a lack of
witness fees may or may not have been a basis for a motion to
quash, the witnesses in this case, and their attorney, admit
that they did not make any attempt to quash these subpoenas.
movant in a civil contempt proceeding bears the burden of
establishing by clear and convincing evidence: (1) that a
court order was in effect; (2) that the order required
certain conduct by the respondent; and (3) that the
respondent failed to comply with the court's
order.” See Petroleos Mexicanos v. Crawford
Enterprises, Inc., 826 F.2d 392, 401 (5th Cir. 1987)
(citing McComb v. Jacksonville Paper Co., 336 U.S.
187, 191, 69 S.Ct. 497, 93 L.Ed. 599 (1949)). Notably,
“willfulness is not an element of civil
contempt.” Id. “After the movant has
shown a prima facie case, the respondent can defend
against it by showing a present inability to comply with the
subpoena or order.” See Petroleos, 826 F.2d at
401 (citing United States v. Rylander, 460 U.S. 752,
757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983)).
Court finds that the Plaintiff in this case has carried his
burden by clear and convincing evidence. Having established
his prima facie case, the burden shifts to the
witnesses to present an inability to comply. Id.
Emmett Atwood and Kade Atwood failed to bring forth any
adequate or credible excuse, or any evidence whatsoever, that
they were otherwise unable to comply. Based on all the
evidence, testimony, and prior orders of this Court, the
Court finds that compensatory sanctions against Emmett Atwood
and Kade Atwood for their failure to comply with the
subpoenas and the other orders of this Court are warranted.
Plaintiff filed two sworn Affidavits [304-1, 305-1] along
with his motions for sanctions outlining the expenses he
incurred for the two failed depositions. These expenses total
$604.29 apportioned to Emmett Atwood, and $569.04 to Kade
Atwood. In addition, the Plaintiff requests that
Emmett Atwood and Kade Atwood be required to reimburse him
for the costs of the hearing on this issue, specifically
$273.73 for costs and mileage for his own attendance, and
$288.53 for the costs of attendance for his witness, process
server Richard Cain. The Court finds this request reasonable,
and that the Plaintiff's incurrence of these expenses
flows directly from Emmett Atwood and Kade Atwood's
failure to comply with the subpoenas and other Court orders
issued in this case.
the costs of the hearing evenly between Emmett Atwood and
Kade Atwood ($281.13 each) brings their respective totals to
$885.42 for Emmett Atwood and $850.17 for Kade Atwood. The
Court is imposing these remedial sanctions only to compensate
the Plaintiff for the reasonable expenses he incurred as a
direct result of Emmett Atwood and Kade Atwood's failure
to appear for their depositions without any adequate excuse.
The Court is not imposing any sanctions to punish,
discipline, or penalize Emmett Atwood and Kade Atwood.
the Court takes up Emmett Atwood and Kade Atwood's
Countermotion  requesting sanctions against the
Plaintiff. The Countermotion was not timely filed, nor was
leave of Court for a late filing requested even though the
record demonstrates that the witnesses had actual notice of
the Plaintiff's pending sanction motions. See L.
U. Civ. R. 7. The Countermotion also fails to comply with the
Federal Rules of Civil Procedure because it contains no
certificate of service, and is not properly endorsed.
See Fed. R. Civ. P. 5, 11; L. U. Civ. R. 11. In
addition, the Countermotion fails to comply with the Local
Rules of this Court, specifically Local Rule 7 which
prohibits the filing of a response and motion in the same
document. See L. U. Civ. R. 7. These procedural
defects aside, the Court finds Emmett Atwood and Kade
Atwood's request for sanctions against the Plaintiff to
be wholly without merit, and it is denied.
these reasons, the Court orders Emmett Atwood to deposit
$855.42 with the Clerk of Court at the below address within
30 days of the issuance of this Order, to be disbursed by the
Clerk to the Plaintiff. The Court orders Kade Atwood to
deposit $850.17 with the Clerk of Court at the below address