Wells Fargo Equipment Finance, Inc. v. Virk Systems, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WELLS FARGO EQUIPMENT No. 2:20-cv-0143 TLN DB FINANCE, INC., a Minnesota corporation, 12 13 Plaintiff, ORDER 14 v. 15 VIRK SYSTEMS, INC. a California corporation; LAKHWINDER 16 SINGHVIRK, an individual, 17 Defendants. 18 19 On January 28, 2022, the matter came before the undersigned pursuant to the 20 undersigned’s December 7, 2021 order to defendants to show cause for failing to appear at a 21 December 3, 2021 judgment debtor examination. Attorney Michael Gomez appeared on behalf of 22 the plaintiff/judgment creditor. No appearance was made by, or on behalf of, either defendant. 23 At the January 28, 2022 hearing plaintiff’s counsel requested that the undersigned issue a bench 24 warrant in response to defendants’ failure to appear. 25 “A district court has the power to adjudge in civil contempt any person who [] disobeys a 26 specific and definite order of the court.” Gifford v. Heckler, 741 F.2d 263, 265 (9th Cir. 1984). 27 Imprisonment is a “legitimate civil contempt sanction.” U.S. v. State of Tenn., 925 F. Supp. 28 1292, 1301 (W.D. Tenn. 1995); see also In re Joint Eastern and Southern Districts Asbestos 1 Litigation, 830 F. Supp. 1153, 1155 (C.D. Ill. 1993) (“imprisonment or fines can be used as 2 sanctions”). Pursuant to the recalcitrant witness statute: 3 Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause 4 shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording 5 or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement 6 at a suitable place until such time as the witness is willing to give such testimony or provide such information. 7 8 28 U.S.C. § 1826(a); see also Invesco High Yield Fund v. Jecklin, 10 F.4th 900, 904 (9th Cir. 9 2021) (“§ 1826(a) applies . . . to a refusal to testify” in post-judgment discovery proceedings); 10 Martin-Trigona v. Gouletas, 634 F.2d 354, 356 (7th Cir. 1980) (affirming order finding judgment 11 debtor in contempt for refusal to answer and ordering confinement “until he answered the 12 questions”). 13 “‘The standard for finding a party in civil contempt is well settled: The moving party has 14 the burden of showing by clear and convincing evidence that the contemnors violated a specific 15 and definite order of the court. The burden then shifts to the contemnors to demonstrate why they 16 were unable to comply.’” In re Bennett, 298 F.3d 1059, 1069 (9th Cir. 2002) (quoting F.T.C. v. 17 Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999)). However, “only a district court may 18 hold a party in contempt[.]” On Command Video Corp. v. LodgeNet Entertainment Corp., 976 F. 19 Supp. 917, 921 (N.D. Cal. 1997); see also U.S. v. Ritte, 558 F.2d 926, 927 (9th Cir. 1977) (per 20 curiam) (“contemptuous acts committed in the presence of a magistrate or related to proceedings 21 before a magistrate must be referred to a district judge for adjudication”). And that decision is 22 discretionary. See F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) (“We review 23 a district court’s civil contempt order for an abuse of discretion.”); In re Grand Jury Proceedings, 24 797 F.2d 906, 907 (10th Cir. 1986) (decision left “to the reasonable discretion of the trial court”). 25 In this regard, if plaintiff wishes to pursue defendants’ arrest as a civil contempt sanction 26 it must do so by way of a motion making the appropriate showing. If such a motion comes before 27 the undersigned plaintiff is advised to clearly articulate why an arrest warrant should issue under 28 the circumstances of this case and support that assertion with legal authority. 1 Accordingly, IT IS HEREBY ORDERED that the December 7, 2021 order to show cause 2 || (ECF No. 40) is discharged. 3 || Dated: January 31, 2022 4 5 6 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DB orders\orders.civilwellsfargo0143.o0ah.0128 24 25 26 27 28