United States District Court, W.D. Washington, Seattle
ORDER TO SHOW CAUSE AND GRANTING MOTION
L. ROBART United States District Judge
the court is Plaintiff Northwest Administrators, Inc.'s
(“NAI”) motion for order to show cause why Jannie
Richardson, Vice President of Defendant JMR Trucking, Inc.
(“JMR”), should not be held in contempt of court.
(Mot. (Dkt. # 13).) The court has considered the motion, the
relevant portions of the record, and the applicable law.
Being fully advised, the court GRANTS the motion as described
October 17, 2018, NAI filed this action seeking to compel JMR
to submit to an audit of its books and records in order to
ensure that JMR is in compliance with the terms of a
collective bargaining agreement between JMR and Local 174 of
the International Brotherhood of Teamsters. (See
Compl. (Dkt. # 1) at 2-4.) NAI served JMR with process on
November 15, 2018, via personal service on JMR's Vice
President, Ms. Richardson, who is also the spouse of
JMR's owner, Darnell Richardson. (Compl. (Dkt.# 1); 11/27/28
Cert. of Serv.); see also Fed. R. Civ. P. 4(h)(1)(B)
(stating that service of process may be effectuated on a
corporation by delivering process to “an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of process”).
Because JMR failed to appear or answer the complaint within
21 days of service, the Clerk entered an order of default
against JMR on December 28, 2018. (12/28/18 Order (Dkt. #
April 15, 2019, after JMR had defaulted, the court granted
NAI's motion to compel JMR to submit to an audit and
directed JMR to make certain payroll records available to NAI
within 15 days of entry of the court's order.
(See 4/15/19 Order (Dkt.# 10) at 2.) NAI served that
order on JMR-again, via personal service on Ms. Richardson-on
May 24, 2019. (7/25/19 Cert. of Serv. (Dkt. # 11).) According
to NAI, JMR has failed to provide payroll records in
compliance with the court's order. (Mot. at 3.) As such,
NAI now asks the court to enter an order to show cause why
Ms. Richardson should not be held in contempt of court for
her failure to comply with the order that she was served
with. (Id. at 1.) Neither JMR nor Ms. Richardson
filed a response to this motion or appeared in this action.
contempt is a refusal to do an act the court has ordered for
the benefit of a party[.]” Bingman v. Ward,
100 F.3d 653, 655 (9th Cir. 1996) (internal quotation marks
omitted). A court may invoke its civil contempt power for two
reasons: (1) “to coerce the defendant into compliance
with the court's order, ” and (2) “to
compensate the complainant for losses sustained.”
Shell Offshore Inc. v. Greenpeace, Inc., 815 F.3d
623, 629 (9th Cir. 2016) (internal quotation marks omitted).
A party moving for civil contempt must prove by clear and
convincing evidence that the nonmoving party violated a court
order. Ahearn ex rel. N.L.R.B. v. Int'l Longshore
& Warehouse Union, Locals 21 & 4, 721 F.3d 1122,
1129 (9th Cir. 2013). “The contempt need not be
willful, and there is no good faith exception to the
requirement of obedience to a court order.”
Go-Video v. Motion Picture Ass'n of Am. (In re
Dual-Deck Video Cassette Recorder Antitrust Litig.), 10
F.3d 693, 695 (9th Cir. 1993). Once the moving party has met
its burden, the burden shifts to the alleged contemnor to
demonstrate why it was unable to comply. Stone v. City
& Cty. of S.F., 968 F.2d 850, 856 n.9 (9th Cir.
the record before the court demonstrates that NAI has
established by clear and convincing evidence a prima facie
case that both JMR and Ms. Richardson have failed to comply
with this court's order to compel audit. Although NAI
moved for entry of an order to show cause only against Ms.
Richardson (see Mot. at 1), the court notes that it
ordered JMR-not Ms. Richardson-to provide the payroll records
that NAI seeks by the end of April 2019. (4/15/19 Order at
2.) And, even though NAI was under no obligation to serve
that order on JMR due to JMR's default, Fed.R.Civ.P.
5(a)(2), NAI did so anyways via personal service on Ms.
Richardson, JMR's Vice President and the spouse of
JMR's owner (Dkt. # 11). It appears as though JMR chose
not to respond to the court's order despite being given
notice of that order and sufficient time to comply with it.
(See Mot. at 3 (“Defendant has not made any
response to the Order Granting Motion to Compel
Audit[.]”.) Thus, even though NAI has not requested
that the court enter an order to show cause against JMR, the
court finds grounds to issue such an order.
Richardson's non-party status does not mean she can flout
the court's orders with impunity. To be held liable in
contempt, a non-party must (1) have notice of the order at
issue and (2) “either abet the defendant in violating
the court's order or be legally identified with
him.” Peterson v. Highland Music, Inc., 140
F.3d 1313, 1323 (9th Cir. 1998) (citing NLRB v. Sequoia
Dist. Council of Carpenters, 568 F.2d 628, 633 (9th Cir.
1977)). As NAI's certificate of service shows, Ms.
Richardson had notice of the order compelling JMR to submit
audit records. (7/25/19 Cert. of Serv.) And, as the Vice
President of JMR, Ms. Richardson is legally identified with
JMR. See Or. Laborers-Emp'rs Health & Welfare Tr.
Fund v. Battan's Bldg. Mgmt. & Const., No. CIV.
94-136-FR, 1994 WL 648022, at *2 (D. Or. Nov. 7, 1994)
(“A corporate officer is legally identified with the
corporation and, thus, liable for disobeying an order
directed to the corporation.” (citing Sequoia Dist.
Council of Carpenters, 568 F.2d at 633)). Thus, Ms.
Richardson may be held liable for JMR's failure to comply
with the court's order to compel audit.
the record establishes by clear and convincing evidence that
JMR has failed to comply with this court's audit order
and that Ms. Richardson may be held in contempt for JMR's
shortcomings, the burden now shifts to JMR and Ms. Richardson
to “show ‘categorically and in detail' why
[they are] unable to comply with the court's previous
order.” Donovan v. Mazzola, 716 F.2d 1226,
1240 (9th Cir. 1983) (quoting United States v.
Rylander, 656 F.2d 1313, 1318 (9th Cir. 1981),
rev'd on other grounds, 460 U.S. 752 (1983)).
The court, therefore, concludes that an order to show cause
why JMR and Ms. Richardson should not be held in contempt is
reasons set forth above, the court GRANTS NAI's motion
(Dkt. # 13). The court ORDERS JMR and Ms. Richardson to SHOW
CAUSE, on or before September 26, 2019, why the court should
not hold them in civil contempt for failure to comply with
the court's Order to Compel Audit, which the court
entered on April 15, 2019. The court sets a hearing on this
matter on September 26, 2019, at 10:00 a.m., at which time
the parties may present evidence relevant to the court's
consideration of civil contempt. JMR and Ms. Richardson may
file a written response to the court's order to show
cause no later than September 12, 2019. NAI may file a
written response no later than September 19, 2019. Finally,
the court ORDERS NAI to ...