Ganus v. Alabama And Gulf Coast Railway LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHELLE L. GANUS, as Personal
Representative of the Estate of Michael
Fisher Ganus,
)
)
)
)
Plaintiff, )
)
vs. ) CIV. ACT. NO. 1:23-cv-103-TFM-MU
)
ALABAMA & GULF COAST RAILWAY,
LLC,
)
)
)
Defendant. )
MEMORANDUM OPINION AND ORDER
On November 4, 2024, the Magistrate Judge entered a report and recommendation which
addresses the Plaintiff’s efforts to depose non-party witness Keith Weaver. See Doc. 112. In his
Report and Recommendation (“R&R”), the Magistrate Judge recommended that this Court do the
following:
(1) non-party witness Keith Weaver be ORDERED to appear before the undersigned
and show cause why he should not be held in civil contempt of court for willfully violating
the undersigned Magistrate Judge’s Orders;
(2) that Plaintiff’s Motion for Order Holding Keith Weaver in Contempt (Doc. 84) be
GRANTED;
(3) that Keith Weaver be found to be in contempt of Court; and
(4) that Weaver be sanctioned for civil contempt by issuance of a warrant for his arrest
and that he be incarcerated until such time as he purges his contempt by appearing for his
deposition.
Id. at 6-7. Neither party nor Keith Weaver filed any objections to the R&R within the required
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timeframe. The Court issued a preliminary Memorandum Opinion and Order adopting the portion
of the Report and Recommendation in that the Court scheduled a show cause hearing regarding
whether Keith Weaver should be held in civil contempt for the following: failing to obey the
August 30, 2024 subpoena, served on September 3, 2024 requiring him to appear on September
10, 2024 and give testimony in this matter and for failing to obey Magistrate Judge Murray’s
September 23, 2024 Order granting the motion to compel his deposition (Doc. 80), failing to obey
Magistrate Judge Murray’s October 1, 2024 Order (Doc. 90) that Keith Weaver appear for the
October 17, 2024 hearing on his failure to comply with and obey the lawful orders, and his failure
to appear for the October 17, 2024 hearing on initial contempt proceedings. See Doc. 125.
The Court convened the hearing on today’s date and Keith Weaver, despite very clear
instructions about what would happen if he failed to appear, still did not attend. The record shows
that Mr. Weaver was sent a copy of the Court’s order by regular mail and by UPS 2-day delivery.
Id. Therefore, the Court proceeded to take live testimony regarding Keith Weaver’s continued
refusal to comply with the lawful subpoenas and orders of this Court. The Court further orally
ordered that a writ of bodily attachment would issue for Mr. Weaver. This order provides the
Court’s findings and conclusions.
I. STANDARD OF REVIEW
“[C]ivil contempt proceeding[s are] brought to enforce a court order that requires [a party]
to act in some defined manner.” Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998) (quoting
Mercer v. Mitchell, 908 F.2d 763, 768 (11th Cir. 1990)). “A finding of civil contempt — willful
disregard of the authority of the court — must be supported by clear and convincing evidence.”
Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (citing McGregor v. Chierico,
206 F.3d 1378, 1383 (11th Cir. 2000)). “The clear and convincing evidence must establish that:
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(1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous;
and (3) the alleged violator had the ability to comply with the order.” Id. (citations omitted).
II. DISCUSSION AND ANALYSIS
“The duty of the magistrate [judge] under this subsection is simply to investigate whether
further contempt proceedings are warranted, not to issue a contempt order.” Church v. Steller, 35
F. Supp. 2d 215, 217 (N.D.N.Y 1999) (citing Proctor v. State Gov’t of N.C., 830 F.2d 514, 521
(4th Cir. 1987)) see also United States v. Pierre, 2007 U.S. Dist. LEXIS 102064, 2007 WL
5268245, at *1-2 (S.D. Fla. March 21, 2007) (district judge issuing contempt order after adopting
magistrate judge's Report and Recommendation and Certification of Facts Constituting Contempt).
Rather, “[w]hether the conduct of a party constitutes contempt and any sanctions therefor are
committed to the discretion of the district court.” Church, 35 F. Supp. 2d at 217. “However, upon
certification a magistrate judge may recommend that certain sanctions be imposed by the district
court upon a finding of contempt.” Id.; see also Smoliak, 2006 U.S. Dist. LEXIS 20995, 2006 WL
1029643, at *3-4 (recommending sanctions be imposed if district court makes contempt finding).
Put another way:
Although a magistrate judge may conduct a hearing as part of the certification
process, “the magistrate judge functions only to certify the facts and not to issue an
order of contempt.” Daniel & Max LLC v. BAB Holding Co., LLC, Civ. No. 19-173
GJF/GBW, 2022 U.S. Dist. LEXIS 137, 2022 WL 19191, at *2 (D. N.M. Jan. 3,
2022) (quotation omitted). A certification of facts “shows that sufficient evidence
exists to establish a prima facie case of contempt,” but a magistrate judge “may
decline to certify the facts where [he] is not satisfied that such contempt falls within
one of the enumerated categories of § 636(e)(6)(B).” GWACS Amory, LLC v. KE
Arms, LLC, Case No. 20-cv-00341-CVE-SH, 2022 WL 2257043, at *3 (N.D. Okla.
June 23, 2022) (citations omitted).
Rare Breed Triggers, LLC v. Graves, Civ. Act. No. 22-cv-107, 2024 U.S. Dist. LEXIS 204431,
2024 WL 4697728 (N.D. Okla. Aug. 5, 2024). “The certificate of facts forwarded by the
magistrate to the district court shall be considered the statement of a prima facie case.” Taberer
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v. Armstrong World Indus., Inc., 953 F.2d 888, 907 (3d Cir. 1992). Then the district court must
conduct a de novo hearing at which the issues of fact and credibility are determined. Jones v.
Police Sergeant James Milana, Civ. Act. No. 5:20-cv-340, 2024 U.S. Dist. LEXIS 188518, 2024
WL 4501011 (N.D.N.Y. Oct. 16, 2024).
“Civil contempt proceedings are brought to enforce a court order that requires a party to
act in some defined manner.” Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998) (quoting
Mercer v. Mitchell, 908 F.2d 763, 768 (11th Cir. 1990) (modifications omitted)). “A finding of
civil contempt — willful disregard of the authority of the court — must be supported by clear and
convincing evidence.” Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (citing
McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000)). “The clear and convincing evidence
must establish that: (1) the allegedly violated order was valid and lawful; (2) the order was clear
and unambiguous; and (3) the alleged violator had the ability to comply with the order.” Id.
(citations omitted). In Turner v. Rogers, 564 U.S. 431 (2011), the Court recognized that civil
contempt differs from criminal contempt “in that it seeks only to coerce the defendant to do what
the court has previously ordered him to do.” Id. at 441 (citation omitted). In other words, a civil
contempt defendant “carries the keys of his prison in his own pocket,” because he is purged of
contempt once he complies with the underlying order. Id.
The Court now adopts the remainder of the Report and Recommendation and adopts the
following certified facts as its own after consideration of the evidence on the record and the sworn
testimony by Plaintiff’s counsel:
Plaintiff’s decedent son, Michael Fisher Ganus, was killed in an on-the-job accident
involving a forklift being operated by a co-worker, Keith Weaver. (Doc. 1-1; Doc.
76; PageID. 20-21, 452). Plaintiff had Weaver personally served with a deposition
subpoena by process server on September 3, 2024. (Doc. 76-1). The process server
stated that she delivered the subpoena to a person who identified himself as Keith
Weaver. (Id.; PageID. 456). Weaver failed to appear for his deposition on
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September 10, 2024. (Doc. 76-2; PageID. 463-66). Weaver did not file a motion to
quash the deposition, raise any objection to the deposition, or attempt to
communicate with Plaintiff’s counsel. (Doc. 76; PageID. 452). Therefore, Plaintiff
filed a motion to compel Weaver’s deposition on September 11, 2024. (Doc. 76).
Plaintiff served her motion to compel on Weaver by sending it via USPS to his last
known address, 6100 Vergos Dr. N., Eight Mile, Alabama 36613. (Doc. 76;
PageID. 454). On September 12, 2024, the Court issued a response order setting a
deadline for filing any objection or response to the motion for September 19, 2024.
(Doc. 77). The clerk of Court mailed a copy of this order to Keith Weaver at his
last known address on September 13, 2024. Weaver filed no response or objection
to Plaintiff’s motion to compel. (See Docket Sheet). Because it was undisputed that
Weaver failed to comply with the non-party subpoena issued by Plaintiff, the Court
granted Plaintiff’s motion to compel and ordered Weaver to appear in Room 110
of the United States District Court for the Southern District of Alabama on
September 27, 2024 at 10:00 a.m. for his deposition. (Doc. 80; PageID. 510). In its
order, the Court warned Weaver that if he failed to appear for his deposition and,
thereby, failed to comply with the Court’s order, he could be held in contempt of
the United States District Court for the Southern District of Alabama and
sanctioned therefor in an appropriate manner. (Id.).
Plaintiff was directed to serve copies of the Order compelling Weaver’s deposition
on him by first class mail and via process server at his last known address within
three business days of the date of the order and to file proof of service immediately
thereafter. (Id.). On September 24, 2024, Plaintiff’s process server served of copy
of the Order at Weaver’s residence located at 6100 Vergos Dr. N., Eight Mile,
Alabama 36613 by leaving a copy of the Order with Lilian Weaver, who on
information and belief is Weaver’s spouse. (Doc. 82-1; PageID. 538). On
September 23, 2024, Plaintiff’s counsel mailed a copy of the Order to Weaver’s
residence via U.S. first class mail and, on September 24, 2024, Plaintiff’s counsel
also mailed a copy of the order to Weaver’s residence via U.S. certified mail. (Doc.
82; Doc. 82-2; PageID. 536, 539).
Weaver did not appear at the courthouse on September 27, 2024 for his deposition,
nor did he file a motion to quash the deposition or any objection to the deposition.
(Doc. 89; Docket Sheet). Weaver did not and has not communicated with the Court
or the parties concerning his deposition. Weaver failed to appear even though he
was warned that if he failed to appear for his deposition and, thereby, failed to
comply with this Court’s Order, he could be held in contempt of this Court and
sanctioned appropriately. (Id. at p. 2).
Plaintiff filed the instant motion for an order holding Weaver in contempt on
September 27, 2024. (Doc. 84). In her motion, Plaintiff requests “that the Court
enter an order directing the Clerk of Court to issue a Writ of Body Attachment for
the U.S. Marshals to arrest Mr. Weaver so that he can be deposed by Plaintiff’s
counsel.” (Id.; PageID. 546). Plaintiff also seeks reasonable expenses and
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attorney’s fees incurred in the depositions for which he did not appear, motion
practice connected to his deposition, and serving Weaver with court documents.
(Id.). Plaintiff’s motion to hold Weaver in contempt was set for a show cause
evidentiary hearing before United States Magistrate Judge P. Bradley Murray on
October 17, 2024. (Doc. 90; PageID. 571-72). Weaver was advised by written
order that the Court would take testimony from him and counsel for Plaintiff, as
well as any other witnesses he or the parties wished to call, to determine whether
Weaver should be held in civil contempt of court. (Id.). Weaver was specifically
ordered to appear and to show cause why he should not be found in contempt of
court for his failure to comply with this Court’s orders and to show cause why the
Court should not order appropriate sanctions be assessed against him. (Id.). He was
warned that if he was found to be in civil contempt of court, these sanctions could
include, but would not be limited to, 1) the assessment of considerable sums of
money against Weaver in the form of a daily fine, a compensatory fine, and
attorney’s fees and expenses that were incurred because of his failure to comply
with the initial deposition notice and the Court’s order to appear for his deposition
and 2) coercive incarceration; that is, the issuance of an arrest warrant and
incarceration until he complied with the order to sit for his deposition. See
Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991)
(cited in Mesa v. Luis Garcia Land Service, Co., 218 F. Supp. 3d 1375, 1380 (S.D.
Fla. 2016)). (Id.). Moreover, Weaver was specifically told that if he failed to appear
for the hearing on October 17, 2024, he would be held in civil contempt of court
and sanctions would issue. (Id.).
Plaintiff’s counsel was directed to personally serve and to mail by certified mail a
copy of the Court’s show cause Order to Weaver on or before October 8, 2024.
(Id.). The Clerk of Court was also directed to mail a copy of the Order by first class
to Keith Weaver at 6100 Vergos N. Drive, Eight Mile, Alabama 36613-3016. (Id.;
PageID. 572-73). On October 2, 2024, Plaintiff’s counsel mailed a copy of the
Order to Weaver at his Vergos Drive residence via U.S. certified mail. (Doc. 94;
PageID. 580). The USPS tracking reflects that the Order was delivered to his
residence on October 4, 2024. (Id.; PageID. 581). On October 3, 2024, Plaintiff’s
process server served a copy of the Order at Weaver’s Vergos Drive residence and
Lilian Weaver accepted service. (Doc. 94-1; PageID. 582). The Clerk of Court
mailed a copy of the Order to Weaver at the Vergos Drive address on October 2,
2024.
Keith Weaver did not appear at the October 17, 2024 show cause hearing.
See Doc. 112 at 3-6, PageID. 657-660. In addition, the Court also finds the following additional
facts:
(1) The Court scheduled a civil contempt hearing on January 16, 2024 at 1:30 pm. See
Doc. 125. The order was sent by regular mail via the United States Postal Service
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which was not returned as undeliverable. The order as also sent by UPS 2-day
delivery, tracking #1Z3388764195833373, which was shown as delivered on
December 21, 2024. See id.
(2) The Court convened the hearing after waiting an additional ten (10) minutes to
ensure Mr. Weaver had adequate time to arrive. Mr. Weaver did not appear at the
January 16, 2024 hearing.
The Court proceeded with taking the sworn live testimony regarding the subpoena and the
facts as noted above. The Court finds by clear and convincing evidence that: (1) the allegedly
violated subpoena and court orders were valid and lawful; (2) the subpoena and orders were clear
and unambiguous; and (3) Mr. Keith had the ability to comply with the order. In fact, the Court
was quite clear on what would happen if Mr. Keith did not attend the January 16, 2024 hearing.
Therefore, the Court finds that Mr. Keith is HELD IN CIVIL CONTEMPT for his failure
to sit for a deposition in this case.
III. WRIT OF BODILY ATTACHMENT
Consequently, the Clerk of Court is DIRECTED to issue a Writ of Bodily Attachment for
Keith Weaver.
The United States Marshals Service (“USMS”) is DIRECTED to locate Keith Weaver and
take him into custody pursuant to the Writ of Bodily Attachment and bring him before the Court
for further proceedings. While this is not a criminal process, for all intents and purposes it is
effectuated like an arrest. The USMS shall maintain physical custody of Keith Weaver until further
instructions by the Court.
The Federal Rules of Civil Procedure provide that “[a]n order committing a person for civil
contempt of a decree or injunction issued to enforce federal law may be served and enforced in
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any district. Any other order in a civil-contempt proceeding may be served only in the state where
the issuing court is located or elsewhere in the United States within 100 miles from where the order
was issued.” FED. R. CIV. P. 4.1(b) (emphasis added).
In this case, while the case was originally removed from Alabama state court, Plaintiff sued
the Defendant under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq.
Pursuant to the FELA, “a covered railroad is liable for negligently causing the injury or death of
any person ‘while he is employed’ by the railroad.” DeShong v. Seaboard Coast Line R. Co., 737
F.2d 1520, 1521 (11th Cir. 1984) (citing 45 U.S.C. § 51 (1980)). See, e.g., SEC v. Res. Dev. Int’l
L.L.C., 86 F. App’x 14 (5th Cir. 2003) (upholding petitioners’ incarcerations for civil contempt
because the case involved alleged violations of federal securities laws and, thus, contempt orders
could be properly served in any district); SEC v. Bilzerian, 131 F. Supp. 2d 10 (D.D.C. 2001)
(ordering incarceration of defendant in Florida due to his failure to comply with temporary
purgation requirements); Gaulden v. City of Desloge, Civ. Act. No. 4:07-cv-1637, 2009 U.S. Dist.
LEXIS 19912 (E.D. Mo. Mar. 12, 2009) (stating that party in contempt of an order in a 42 U.S.C.
§ 1983 case could be seized by the United States Marshals Office in any district because the case
arose under federal law); cf. Spectacular Venture L.P. v. World Star Int’l, Inc., Civ. Act. No.
94cv8917, 1998 U.S. Dist. LEXIS 10865, 1998 WL 401535 (S.D.N.Y. July 17, 1998) (finding that
court is unable arrest defendant for civil contempt because the case was based on diversity
jurisdiction, not federal law, and defendant was located outside the jurisdiction of the court).
Keith Weaver resides in the state of Alabama therefore jurisdictional limits should not
matter in this case. And while this case was initially brought in Alabama state court, the Complaint
notes that the state court had concurrent jurisdiction for suits filed under FELA. See Doc. 1-1 at
9. As federal law is implicated through FELA, the Court finds that the writ of bodily attachment
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may be served and enforced in any district.
IV. CONCLUSION
Accordingly, having reviewed the Report and Recommendation of the Magistrate Judge
and having conducted a contempt hearing on the matter, the Report and Recommendation (Doc.
112) is now ADOPTED in full, the Motion for Order Holding Keith Weaver in Contempt (Doc.
84, filed 9/27/24) is GRANTED, and the Court finds that Keith Weaver is in CIVIL
CONTEMPT. A Writ of Bodily Attachment is issued and the USMS shall effectuate taking Keith
Weaver into custody to bring him before the Court for further proceedings.
The Court provisionally1 appoints counsel for Keith Weaver for the limited purposes of
these contempt proceedings as Keith Weaver shall be maintained in USMS custody until he takes
actions necessary to purge himself of the contempt – i.e. he sits for a deposition in accordance with
the previously issued subpoenas and Court orders.
The contempt proceeding shall remain OPEN pending the USMS effectuating the arrest
under the writ of bodily attachment. The Court provisionally appoints counsel for Keith Weaver
for the limited purposes of these contempt proceedings as Keith Weaver shall be maintained in
USMS custody until he takes actions necessary to purge himself of the contempt – i.e. he sits for
a deposition in accordance with the previously issued subpoenas and Court orders.
The Court further holds in abeyance any further determinations regarding any other
1 Keith Weaver will need to complete the normal form regarding financial eligibility once he is
brought before the Court in order to justify a judicial finding of financial eligibility of the
appointment of counsel at no expense. Otherwise, Keith Weaver is also free to retain counsel of
his own choice should he not qualify for the appointment of counsel.
The next counsel available through the Court’s CJA appointment process is Maxine Walters. The
Clerk of Court shall provide her a copy of this order as well as the Report and Recommendation
(Doc. 122) and the previously entered Memorandum Opinion and Order (Doc. 125).
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sanction the Court may find appropriate to include the possibility of reasonable expenses and
attorneys’ fees.
DONE and ORDERED this 16th day of January, 2025.
/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES DISTRICT JUDGE
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