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UNITED STATES v. D-M SALES CORP.

November 6, 1995

UNITED STATES OF AMERICA, Petitioner, against D-M SALES CORPORATION a/k/a Supreme and Export and RAYMOND MIZRAHI, Respondents.


The opinion of the court was delivered by: SEYBERT

 SEYBERT, District Judge:

 Pending before the Court is a motion by petitioner to hold respondents in civil contempt of the Court's March 17, 1995 Order. For the following reasons, petitioner's motion is granted.

 BACKGROUND

 On August 2, 1994 the Consumer Product Safety Commission Staff ("Commission") issued a Special Order and Subpoena ("Subpoena"), pursuant to sections 5 and 27(b) of the Consumer Product Safety Act and 16 C.F.R. Part 1118, requiring respondents to answer certain questions contained in the Subpoena and to provide required records. The Commission issued the Subpoena in connection with an investigation regarding the safety history of several of respondents' products. Respondents import and/or distribute in commerce certain extension cords not listed by Underwriters Laboratories, crayons and other art materials. Despite repeated demands from the Commission, respondents have failed to comply with the Subpoena.

 On or about December 16, 1994, petitioner made an application to the Court for an Order enforcing the Subpoena, and the Court signed an Order to Show Cause why the Court should not enforce compliance with the Subpoena. The parties then entered into a Stipulation and Order signed by the Court on February 1, 1995, whereby respondents agreed to comply with the Subpoena. On January 31, 1995 and February 28, 1995, however, respondents provided incomplete and unsworn answers to the Subpoena in disregard of the Stipulation.

 On March 17, 1995, the Court issued an Order directing respondents to provide information responsive to the Commission's Subpoena within fifteen (15) days of receipt of the Order. The Court further ordered that:

 
should respondents fail to comply with this Order then this Court may, upon written application of the government with notice to respondents, enter an order holding respondents in contempt for violation of this Order and may impose sanctions of up to $ 100.00 per day until the contempt is cured, as well as award costs to the United States to compensate it for the expenses incurred in obtaining compliance with this Order.

 On March 31, 1995, petitioner sent a copy of the March 17, 1995 Order by federal express to respondents. On June 7, 1995, petitioner mailed another copy of the Order to respondents by certified mail return receipt requested and asked respondents to comply with the Order within ten (10) days.

 To date, respondents have failed to submit any material to petitioner in compliance with the March 17, 1995 Order. In addition, until today, petitioner never received a response from respondents to this motion for civil contempt sanctions.

 DISCUSSION

 It is firmly established that "'the power to punish for contempts is inherent in all courts.'" Chambers v. Nasco, Inc., 501 U.S. 32, 44, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27 (1991) (quoting Ex parte Robinson, 86 U.S. 505, 19 Wall. 505, 510, 22 L. Ed. 205 (1874)). This inherent power "reaches both conduct before the court and that beyond the court's confines, for 'the underlying concern that gave rise to the contempt power was not . . . merely the disruption of court proceedings. Rather, it was disobedience to the orders of the Judiciary, regardless of whether such disobedience interfered with the conduct of trial.'" Id. (quoting Young v. United States ex rel Vuitton et Fils S.A., 481 U.S. 787, 798, 107 S. Ct. 2124, 2132, 95 L. Ed. 2d 740 (1987)). Congress has specifically authorized the Court to hold a party in contempt if that party has failed to obey an order of the Court enforcing a subpoena issued by the Commission, *fn1" as is the instant case.

 Generally, the purpose of holding a party in civil contempt is 'to enforce compliance with an order of the court or to compensate for losses or damages.'" Powell v. Ward, 643 F.2d 924, 931 (2d Cir. 1981) (quoting McComb. v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 499, 93 L. Ed. 599 (1949)). Civil contempt sanctions "may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard." International Union, United Mine Workers of America v. Bagwell, U.S. , 114 S. Ct. 2552, 2557, 129 L. Ed. 2d 642 (1994).

 To determine whether to hold a party in civil contempt, the Second Circuit has established a three prong test. See United States v. Local 1804-1, International Longshoremen's Association, AFL-CIO, 44 ...


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