Golden Unicorn Enterprises, Inc. v. Audible, Inc.
- Jesse Furman
- 1:21-cv-07059
- U.S. District Court · Southern District of New York
- 3
In Golden Unicorn v. Audible, Judge Furman held witness Coleen Barr in contempt for refusing a subpoenaed deposition and ordered costs, fees, and possible penalties.
Third-party witness Coleen Barr was held in contempt and ordered to complete the deposition, reimburse the plaintiffs’ specified costs and fees, and potentially pay daily penalties. Golden Unicorn Enterprises, Inc. and Big Dog Books, LLC were authorized to recover the specified costs and fees and were assigned service and filing obligations.
What happened
In Golden Unicorn Enterprises, Inc. v. Audible, Inc., the plaintiffs asked the court to hold third-party witness Coleen Barr in civil contempt. They said Barr received a court-approved subpoena for a December 8, 2022 deposition, appeared, but refused to testify and did not file the motion to cancel the subpoena that she said she planned to file.
The court found that sending the subpoena by FedEx was proper because the method was reasonably likely to notify Barr, and she confirmed receiving it and appeared at the deposition. The court also found that the subpoena clearly required her to attend and that her failure to testify was clear. No opposition to the contempt motion was filed.
Judge Furman granted the plaintiffs’ motion. He ordered Barr to reimburse the plaintiffs for the deposition-related costs and attorney’s fees and for the costs of their motion to compel. He gave Barr until January 13, 2023, to complete the deposition; otherwise, she would have to pay $100 per day, and if she still did not comply by February 3, 2023, the court would consider increasing the penalty or issuing an arrest warrant and ordering her detained until she complied.
The detailed version
- Golden Unicorn Enterprises, Inc. v. Audible, Inc. · No. 1:21-cv-07059
- Jesse Furman
- Dec. 28, 2022
Background
The plaintiffs moved to hold third-party witness Coleen Barr in civil contempt based on her refusal to testify at a December 8, 2022 deposition. The plaintiffs served a court-approved subpoena on Barr by FedEx on December 5 and also attempted personal service four times without reaching her. Barr confirmed by text message that she received actual notice of the subpoena. She appeared at the deposition, stated that she would not testify, and said she planned to seek an order canceling the subpoena, but she did not do so. Barr did not file an opposition to the contempt motion.
Court’s Analysis
Federal Rule of Civil Procedure 45(g) permits a court to hold a person in contempt for failing, without an adequate excuse, to obey a subpoena or related order after being served. The court applied three requirements for civil contempt: the order must be clear and unambiguous, the failure to comply must be shown clearly and unambiguously, and the person must not have made a diligent, reasonable effort to comply.
The court found all three requirements satisfied. It held that FedEx service was proper because Rule 45 does not require personal service when another method is reasonably calculated to ensure that the witness receives the subpoena. Barr’s confirmation that she received notice and her appearance at the deposition supported that conclusion. The court also found that the subpoena clearly required Barr to attend a deposition at a specified time and place, that her noncompliance was clear, and that she had been expressly warned that failing to comply could result in contempt.
Ruling and Required Actions
The court GRANTED the plaintiffs’ motion to hold Barr in contempt. It ordered Barr to reimburse the plaintiffs for the costs and attorney’s fees connected with the December 8 deposition and for the costs of the motion to compel. The plaintiffs were required to submit proof of those costs and fees by January 4, 2023.
The court allowed Barr until January 13, 2023, to contact the plaintiffs’ counsel and sit for the deposition. If she did not do so, she would be required to pay $100 for each day of noncompliance. If she still failed to comply by February 3, 2023, the court stated that it would consider increasing the financial penalty, issuing an arrest warrant, and ordering her detained until she complied. The plaintiffs were also ordered to serve the ruling on Barr by overnight mail and file proof of service.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.