Ganus v. Alabama And Gulf Coast Railway LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHELLE L. GANUS, etc., )
)
Plaintiff, )
)
vs. ) CIV. A. NO. 23-0103-TFM-MU
)
ALABAMA & GULF COAST )
RAILWAY, LLC, )
)
Defendant. )
REPORT AND RECOMMENDATION
This cause is before the Court on the Motion for Order Holding Keith Weaver in
Contempt filed by Plaintiff Michelle L. Ganus, as Personal Representative of the Estate
of Michael Fisher Ganus, on September 27, 2024. (Doc. 84). This motion, which has
been referred to the undersigned for report and recommendation, see Docket Sheet,
initially arose from the failure of non-party Keith Weaver to appear at his properly-
noticed deposition on September 10, 2024 and his further failure to comply with the
Order entered by this Court on September 23, 2024, which compelled Weaver to
appear for his deposition at the United States District Court for the Southern District of
Alabama on September 27, 2024. (Doc. 80). This motion is now further supported by
Weaver’s failure to appear at the show cause hearing held before the undersigned
Magistrate Judge on October 17, 2024. As set forth below, the undersigned
RECOMMENDS that Plaintiff’s motion be GRANTED, that non-party witness Keith
Weaver be ORDERED to appear before United States District Judge Terry F. Moorer
and show cause why he should not be held in civil contempt of court for willfully violating
the undersigned Magistrate Judge’s orders, that Keith Weaver be found to be in
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contempt of Court, and that Weaver be sanctioned for civil contempt by issuance of a
warrant for his arrest and that he be incarcerated upon arrest until such time as he
purges his contempt by appearing for his deposition.
I. Applicable Law
“Courts have inherent power to enforce compliance with their lawful orders
through civil contempt.” Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297,
1301 (11th Cir. 1991) (citing Shillitani v. United States, 384 U.S. 364, 370 (1966)). A
party seeking a finding of civil contempt must establish “clearly and convincingly” that
the non-compliant party violated a court order. Id. Once this showing is made, the
burden of production shifts to the non-compliant party to produce evidence explaining
his noncompliance and such proof must go beyond “a mere assertion of inability.” Id.
(internal quotation and citations omitted). Rather, the non-compliant party must
introduce evidence “showing that they have made ‘in good faith all reasonable efforts to
comply.’” Id. (quoting United States v. Ryan, 402 U.S. 530, 534 (1971)).
Plaintiff’s motion to hold Weaver in contempt was referred to the undersigned
Magistrate Judge. (See Docket Sheet entry dated 9/27/2024). Under 28 U.S.C. §
636(e)(6), if someone commits any act that constitutes civil contempt in a case in which
pretrial proceedings have been referred to a magistrate judge, the magistrate judge
must certify the facts surrounding such contempt to a district judge, who shall “hear the
evidence as to the act or conduct complained of and, if it is such as to warrant
punishment, punish such person in the same manner and to the same extent as for a
contempt committed before a district judge.” See Sandoval Wholesales, Inc. v. Farm
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Fresh Packers, LLC, Case No. 19-CV-80394-ROSENBERG/REINHART, 2020 WL
13401918, * 1 (S.D. Fla. Aug. 19, 2020).
II. Findings of Fact
In accordance with 28 U.S.C. § 636(e)(6), the undersigned Magistrate Judge
hereby certifies the following facts:
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 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
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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).
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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 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.
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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.
III. Conclusion
The undersigned Magistrate Judge finds that there is clear and convincing
evidence that Keith Weaver violated the Court’s lawful and valid Order to appear for his
deposition and the Court’s lawful and valid Order to appear before this Court and show
cause for his failure to appear for his deposition; that these Orders were clear and
unambiguous; and, there being no evidence presented contra, that Weaver had the
ability to comply with these Orders. Accordingly, based upon the foregoing, the
undersigned RECOMMENDS that non-party witness Keith Weaver be ORDERED to
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appear before United States District Judge Terry F. Moorer and show cause why he
should not be held in civil contempt of court for willfully violating the undersigned
Magistrate Judge’s Orders; that Plaintiff’s Motion for Order Holding Keith Weaver in
Contempt (Doc. 84) be GRANTED; that Keith Weaver be found to be in contempt of
Court; and 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.
The Clerk of Court is DIRECTED to serve a copy of this Order on Keith Weaver,
via US first class mail, at 6100 Vergos Dr. N., Eight Mile, Alabama 36613.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties and on
non-party Keith Weaver in the manner provided by law. Any party or person who objects
to this recommendation or anything in it must, within 14 days of the date of service of
this document, file specific written objections with the Clerk of this Court. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). It should be noted that under
Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or
recommendations contained in a report and recommendation in accordance with the
provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal conclusions if the party was
informed of the time period for objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the court may review on appeal
for plain error if necessary in the interests of justice.” To be specific, an objection must
identify the specific finding or recommendation to which objection is made, state the
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basis for the objection, and specify the place in the Magistrate Judge’s report and
recommendation where the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the Magistrate Judge is not
specific.
DONE this the 4th day of November, 2024.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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