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McAnarney v. Optimum Building & Inspection Corp.

United States District Court, D. Massachusetts

April 20, 2016

BARRY C. McANARNEY, as he is EXECUTIVE DIRECTOR, MASSACHUSETTS LABORERS' HEALTH AND WELFARE FUND, MASSACHUSETTS LABORERS' PENSION FUND, and MASSACHUSETTS LABORERS' ANNUITY FUND; JAMES V. MERLONI. JR., as he is ADMINISTRATOR, NEW ENGLAND LABORERS' TRAINING TRUST FUND; and JOSEPH BONFIGLIO, as he is TRUSTEE, MASSACHUSETTS LABORERS' LEGAL SERVICES FUND, Plaintiffs,
v.
OPTIMUM BUILDING & INSPECTION CORPORATION, Defendant. v.

ORDER ADOPTING REPORT AND RECOMMENDATION

GEORUE A. O'TOOLE. JR. UNITED STATES DISTRICT JUDGE.

After this Court entered a default judgment against the defendant. Optimum Building & Inspection Corp. ("Optimum"), the plaintiffs moved to compel the defendant to respond to discovery requests in order to identify assets that might be available to satisfy the judgment. The motion to compel was referred to the magistrate judge, who granted it on August 31, 2015. When the defendant failed to comply with the Court's order, the plaintiffs filed a motion for a finding of contempt against Optimum and its President, Treasurer, Secretary, Director, and Registered Agent, Jeffrey E. Williams. The motion was referred to the same magistrate judge for a report and recommendation ("R&R").

The magistrate judge now recommends that OpUmum and Williams both be held in contempt of court and be ordered to pay $3, 440.11 for disregarding the post-judgment discovery order. That amount represents the plaintiffs' costs and attorney's fees in attempting to obtain Optimum's compliance with the discovery order. In her R«&R, the magistrate judge declined to recommend that a capias ad respondendum-a civil arrest warrant-or a $250 per day fine issue against Optimum and Williams at this time. However, the magistrate judge did recommend that such additional sanctions be imposed if Optimum and Williams continued to defy the post-judgment discovery order.

The defendant has maintained its non-responsive posture in this case by ignoring the magistrate judge's R&R. There is no reason to doubt that Optimum and Williams have actual notice of the relevant orders and motion papers. The plaintiffs served Williams with the post-judgment discovery order and the default judgment via certified mail and received a signed return receipt. The plaintiffs also certified that they had the relevant sheriffs office serve Williams the motion for sanctions by hand. Williams and Optimum's continued defiance of the discovery order is sanctionable.

After reviewing the relevant pleadings and the R&R, I ADOPT the magistrate judge's R&R (dkt. no. 35) in its entirety. The plaintiffs' Motion for a Finding of Civil Contempt (dkt. no. 31) is GRANTED as recommended by the magistrate judge.

Accordingly, this Court finds Optimum and Williams in contempt for their failure to respond to the discovery order. Within fourteen (14) days of the date of this order, Optimum and Williams are jointly and severally ordered to pay the plaintiffs the amount of $3, 440.11 as compensation for costs and attorney's fees. They are further ordered to respond within fourteen (14) days of the date of this order to the plaintiffs' May 8, 2015 discovery requests.

If Optimum and Williams fail to comply with this Order and fail to show good cause for that failure, they will be fined an additional $250 per day until compliance is obtained, and on application by the plaintiffs, a capias ad respondendum will issue against Williams to bring him before the Court.

The plaintiffs shall serve a copy of this Order and the Report and Recommendation on Optimum and Williams in a manner consistent with Federal Rule of Civil Procedure 5(b)(2)(A) or (B) or by mailing a copy to them at the defendant's address of record with the Secretary of the Commonwealth.

It is SO ORDERED.

March 25, 2016

REPORT AND RECOMMENDATION ON PLAINTIFFS' MOTION FOR CONTEMPT [DOCKET NO. 31]

JENNIFER C. BOAL UNITED STATES MAGISTRATE JUDGE.

On December 9, 2013, the District Court entered a default judgment in favor of plaintiffs and against defendant Optimum Building &. Inspection Corporation ("Optimum"), in the amount of $75, 172.69, with interest as provided by law. Docket No. 18. On August 31, 2015, the Court granted in part the plaintiffs' motion to compel compliance with post-judgment discovery. Docket No. 30. Plaintiffs now move for an order finding Optimum and its principal officer Jeffrey Williams in contempt for their failure to comply with the Court's order. Docket No. 31.[1] Plaintiffs also seek an order imposing conditional and compensatory fines upon Optimum and ...


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