Dunkin' Donuts, Inc. v. Three Rivers Entertainment & Travel , 42 F. App'x 573 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DUNKIN’ DONUTS, INCORPORATED, a 
Delaware Corporation; SEVENTH
DUNKIN’ DONUTS REALTY, a
Massachusetts Corporation,
Petitioners-Appellees,
 No. 02-1150
v.
THREE RIVERS ENTERTAINMENT AND
TRAVEL,
Respondent-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CA-01-33-1)
Submitted: June 25, 2002
Decided: July 29, 2002
Before WILKINS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Christ Romanias, Pittsburgh, Pennsylvania, for Appellant. Joseph
Edward Starkey, Jr., BUCHANAN INGERSOLL PROFESSIONAL
CORPORATION, Pittsburgh, Pennsylvania; Robert L. Zisk, Jeffrey
2 DUNKIN’ DONUTS v. THREE RIVERS ENTERTAINMENT
L. Karlin, Matthew L. Van Horn, SCHMELTZER, APTAKER &
SHEPARD, P.C., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Three Rivers Entertainment and Travel ("Three Rivers"), is a sole
proprietorship owned and operated by Christ Romanias. Three Rivers
appeals the imposition of $4100 in civil contempt sanctions the dis-
trict court imposed on it for failing to comply with the orders direct-
ing it to comply with a subpoena duces tecum issued by Dunkin’
Donuts. Three Rivers was not a party to the litigation out of which
the subpoena issued but possessed documents that Dunkin’ Donuts
considered pertinent to its claims.
On appeal, Romanias raises three claims of error. First, he argues
lack of notice of an order entered on October 31, 2001, finding Three
Rivers in contempt and ordering it to pay $100 per day in sanctions
for noncompliance. Second, he asserts that Three Rivers properly
complied with the subpoena on October 1 by mailing over one hun-
dred pages to Dunkin’ Donuts’ counsel, each page consisting of the
front and the back of a canceled check. Finally, he complains the
court prematurely entered its judgment and fine on December 18,
2001, when the court previously scheduled an evidentiary hearing for
December 19 to determine whether Three Rivers could demonstrate
good cause for failing to comply with the subpoena.
Federal Rule of Civil Procedure 45(e) empowers district courts to
hold non-parties who fail to obey a subpoena in contempt. We review
a contempt order for abuse of discretion. After careful review of the
factual basis for Three Rivers’ first two contentions, we reject them
as meritless.
DUNKIN’ DONUTS v. THREE RIVERS ENTERTAINMENT 3
Nevertheless, we find the district court abused its discretion when
it canceled the December 19 evidentiary hearing that the court itself
scheduled to determine whether Three Rivers could demonstrate good
cause for its failure to obey the subpoena or a good faith effort to
comply. See United States v. Darwin Constr. Co., Inc., 873 F.2d 750,
754 (4th Cir. 1989) (citing Consolidation Coal Co. v. Local 1702,
United Mine Workers of America, 683 F.2d 827, 832 (4th Cir. 1982)
(noting "a good faith attempt to comply, as well as substantial compli-
ance or the inability to comply, can be defenses to a civil contempt
order.")).
Following a hearing on November 26, the court issued an order
that, in relevant part, described the posture of the subpoena enforce-
ment proceedings in the following language: "On the issue of good
cause, the parties briefly discussed [during the November 26 hearing]
the history of their communications regarding the subpoena and
Romanias’ attempts to provide the information requested. Due to dis-
puted facts, the Court was unable to resolve either the contempt issue
or the question of attorneys’ fees. Accordingly, the Court will hold an
evidentiary hearing on December 19, 2001 at 8:30 a.m. to conclude
this matter." (R. 11).
As a general principle, it has been observed that "[a]lthough there
are no specific procedural steps to follow in civil contempt proceed-
ings, due process requires that the [alleged contemnor] be given the
opportunity to be heard at a ‘meaningful time and in a meaningful
manner.’" Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1343
(8th Cir. 1975) (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965)). By canceling the December 19 hearing, the district court
impermissibly denied Three Rivers the process the court itself con-
cluded was due. The court’s inability to determine the issue of good
cause at the November 26 hearing logically means that it should not
have simply canceled the December 19 evidentiary hearing and
imposed sanctions for contempt without considering the evidence
supporting good cause Three Rivers may have been prepared to
adduce at that proceeding.
Accordingly we vacate the judgment of the district court and
remand for the court to conduct an evidentiary hearing to determine
whether Three Rivers can demonstrate good cause, as the court origi-
4 DUNKIN’ DONUTS v. THREE RIVERS ENTERTAINMENT
nally proposed to do.* We dispense with oral argument, because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
VACATED AND REMANDED
*By this disposition, we indicate no view regarding whether the dis-
trict court should or should not impose sanctions on Three Rivers for
contempt. This decision is reserved initially for the district court.