Kennedy v. Basil
- Andrew Carter
- 1:18-cv-02501
- U.S. District Court · Southern District of New York
- 9
In Kennedy v. Basil, Judge Fox declined to certify contempt facts against Noah Bank and found Kennedy’s request for fees and costs unwarranted.
Elizabeth Kennedy and nonparty Noah Bank; the order also concerns the subpoena and document-production obligations involving the defendants’ claims-related information.
What happened
In Kennedy v. Basil, Elizabeth Kennedy asked the court to hold nonparty Noah Bank in contempt for not fully responding to a subpoena and a document-production order. She also requested $26,545 in attorney’s fees and costs.
Noah Bank argued that it had responded to the subpoena, produced documents by the deadline, and later supplied additional documents and a privilege log after learning about alleged gaps. Kennedy argued that Noah Bank deliberately withheld documents and that its explanation did not excuse the delay.
Judge Fox found that the opposition was timely, that Kennedy had not shown a basis for contempt concerning either the subpoena or the court’s order, and that Noah Bank had adequately explained and diligently corrected any deficiencies. The court declined to certify facts to the district judge and found that fees and costs were not warranted.
The detailed version
- Kennedy v. Basil · No. 1:18-cv-02501
- Andrew Carter
- Nov. 18, 2019
Background
Elizabeth Kennedy moved under Federal Rule of Civil Procedure 45(g) and Local Civil Rule 83.6 to hold nonparty Noah Bank in contempt. She alleged that Noah Bank failed to comply with a November 5, 2018 subpoena seeking documents concerning a loan to WFT Fashion LLC and failed to comply with the court’s June 3, 2019 order directing production of responsive documents by June 7, 2019. Kennedy also sought $26,545 in attorney’s fees and costs related to enforcing the subpoena and order.
Kennedy acknowledged that Noah Bank served responses and objections on November 14, 2018, filed a motion to quash the subpoena on December 24, 2018, and produced some responsive documents on June 6, 2019. She argued that documents were missing concerning disputed trademarks, WFT’s bankruptcy, and loan payments. Noah Bank later produced what it described as all relevant, non-privileged documents and a privilege log.
Legal Standard
Rule 45(g) permits a court to hold a person in contempt for failing, without an adequate excuse, to obey a subpoena or an order related to it. Because this was a civil, non-consent matter before a magistrate judge, the court explained that its role was to determine whether the moving party presented enough evidence to establish a preliminary case for contempt and, if so, certify the facts to the assigned district judge. The court also applied the requirements that the order be clear and unambiguous, noncompliance be shown by clear and convincing evidence, and the alleged contemnor not have diligently attempted to comply in a reasonable manner.
Rulings
The court found that Noah Bank’s opposition was timely. Kennedy’s initial June 25, 2019 filing had been rejected by the electronic filing system, and she did not file the operative motion until August 22, 2019. Noah Bank’s opposition, filed September 4, 2019, was therefore timely.
As to the subpoena, the court found that no facts could be certified concerning contempt because Kennedy acknowledged that Noah Bank served timely responses and objections and filed a motion to quash. As to the June 3, 2019 order, the court found that Kennedy had not proved noncompliance by clear and convincing evidence because Noah Bank produced documents responsive to some requests on June 6, before the June 7 deadline.
The court further found that Noah Bank adequately explained any deficiencies and acted diligently to correct them after learning of the order and the alleged gaps in production. The court therefore declined to issue a certification of facts to the assigned district judge and found that awarding Kennedy attorney’s fees and costs was not warranted. The memorandum and order resolved Kennedy’s contempt motion.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.