Efthymiou v. Labonte ( 2023 )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA COSTAS EFTHYMIOU, Case No. 22-cv-04694-VC Plaintiff, ORDER RE SECOND MOTION TO v. COMPEL HEATHER LABONTE, Re: Dkt. No. 94 Defendant. A party moving for civil contempt must show by clear and convincing evidence that the alleged contemnor violated a “specific and definite order of the court.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). The burden then shifts to the alleged contemnor to show a “present inability to comply” with the Court’s order. United States v. Ayres, 166 F.3d 991, 994 (9th Cir. 1999). Efthymiou’s motion to compel, if accurate, strongly suggests that LaBonte has violated the Court’s orders. But the motion itself is not evidence, and many of the factual assertions in it are unsupported by any evidence (such as an affidavit). Cf. Ayres, 166 F.3d at 995–96. If Efthymiou would like to submit a supplemental filing including the necessary evidence, that filing is due by Friday, February 24, 2023. LaBonte is ordered to file a written response, along with any evidence in support of that response, by Monday, February 27, 2023. An in-person contempt hearing will take place on Thursday, March 2, 2023 at 2pm. LaBonte and Efthymiou should be prepared to testify under oath at that hearing. If the Court finds LaBonte in contempt, she will likely be fined $1,000 each day she fails to transfer custody of N.E. to Efthymiou. If that does not work, the Court will have no choice but to consider jailing her. IT IS SO ORDERED. Dated: February 22, 2023 VINCE CHHABRIA United States District Judge