Judge denies motion to find termination case defendant in contempt for lack of response to interrogatories

By Nicholas Malfitano | Mar 13, 2017

PHILADELPHIA – A federal judge has denied a plaintiff’s motion to find his former company in civil contempt, for its chief executive officer allegedly not responding to an order to answer post-judgment interrogatories.

On March 7, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert decided plaintiff Lamar Sowell had not shown tangible evidence to prove RAV Investigate & Security Services, LTD had knowledge of his order for post-judgment interrogatory responses.

In June 2015, Sowell sued RAV and Sonesta International Hotels Corporation alleging violations of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. Sowell had been employed by RAV, who assigned him to work as a security guard at Sonesta.

Sowell contends his managers at RAV harassed and eventually terminated him because of his religion. RAV failed to appear or otherwise respond to Sowell’s complaint, eventually leading to a default judgment against RAV in May 2016, with Sowell and Sonesta settling Sowell’s remaining claims.

Subsequent to the default judgment and upon Sowell’s motion, the Court ordered RAV to respond to Sowell’s post-judgment interrogatories on Dec. 1, and produce a corporate designee for a deposition to identify RAV’s executable assets within 30 days. Sowell mailed a copy of the order to RAV via regular mail, but RAV has not responded to Sowell's discovery requests, and Sowell moved on Jan. 9 to hold RAV in contempt for its failure to comply with the order.

“Before the Court may hold a party in civil contempt, the party seeking the contempt order must show that: (1) A valid court order existed; (2) The defendant had knowledge of the order; and (3) The defendant disobeyed the order. Sowell has not established each element by clear and convincing evidence. While a valid court order clearly existed, Sowell has not established that RAV had knowledge of the order,” Pappert said.

Pappert clarified that in other similar cases, litigants had been able to illustrate a paper trail which, when combined with regular mail, “established clear and convincing evidence that the contemnor had knowledge of the order” – and by contrast, Sowell had not included a paper trail generated by regular mail to prove defendant knowledge of the Court’s order.

“Sowell has simply alleged that he mailed the Court’s order to RAV by regular mail. That does not constitute clear and convincing evidence of RAV’s knowledge of the order,” Pappert stated.

Pappert said Sowell was incorrect in believing RAV’s CEO/President Ron Allen was in contempt of court, since the Dec. 1 order only ordered RAV to produce a corporate designee – not Allen specifically.

“While Allen is not a named defendant in this case, there is authority for binding certain corporate officials to court orders issued against named parties which are corporate defendants. Although some circuits have extended Wilson’s rule to corporate officers the record does not suggest that Allen had personal knowledge of the order, as he was not personally served with it. Because Sowell has not established by clear and convincing evidence that RAV had knowledge of the Dec. 1, 2016 order, the Court will not impute any knowledge to Allen himself,” Pappert said.

The Court denied Sowell’s contempt motion without prejudice.

“The Court will permit RAV an additional 30 days to respond to Sowell’s interrogatories and to make a corporate designee available for deposition, at which point Sowell may renew his motion for contempt if RAV does not comply. Sowell must serve the order on RAV consistent with this memorandum and the accompanying order. Unreturned regular mail, in conjunction with the paper trail created by certified mail – even if that certified mail is refused – can suffice to show RAV’s knowledge of the order,” Pappert concluded.

The plaintiff is represented by Adam C. Lease and Ari Risson Karpf, of Karpf Karpf & Cerutti, in Bensalem.

The defendants are represented by Daniel V. Johns and Mary Catherine Gordon of Ballard Spahr, in Philadelphia and Cherry Hill, N.J., plus Denise M. Maher and Kimberly J. Gost of Littler Mendelson, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-03657

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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