The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 RICARDO VELASQUEZ, Case No. 1:15-cv-01288-KES-CDB
12 Petitioner, CERTIFICATION OF FACTS AND
FINDINGS AND RECOMMENDATIONS TO
13 v. HOLD NONPARTY ALEJANDRO SERRANO
IN CONTEMPT
14 STU SHERMAN.
ORDER SETTING SHOW CAUSE HEARING
15 Respondent. AS TO NONPARTY ALEJANDRO
SERRANO’S NONCOMPLIANCE WITH
16 SUBPOENA
17 Clerk of the Court to Serve Non-party
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Hearing Date: January 21, 2025, 1:30 PM
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20 Background
21 On April 12, 2024, the Court scheduled an evidentiary hearing in this matter for October
22 4, 2024, at 10:30 AM in Bakersfield before Magistrate Judge Christopher D. Baker. (Doc. 102).
23 In advance of the evidentiary hearing, on September 17, 2024, Petitioner Ricardo Velasquez
24 served a subpoena upon Alejandro Serrano commanding him to appear and give testimony. See
25 (Doc. 119, Exhibit 1).
26 The Court convened for evidentiary hearing on October 4, 2024, at 10:30 AM, and Mr.
27 Serrano failed to appear. (Doc. 109). Following the hearing, counsel for Petitioner requested
that the Court issue an arrest warrant for Mr. Serrano in light of his failure to appear. Id. The
1 Court took the matter under submission and directed counsel for Petitioner to undertake further
2 reasonable efforts to coordinate the appearance of Mr. Serrano. Id. On October 25, 2024,
3 Petitioner filed a report detailing his unsuccessful efforts following the evidentiary hearing to
4 communicate with Mr. Serrano. (Doc. 112). Thereafter, at the Court’s request, the parties filed
5 a joint report identifying their dates of availability to reconvene for continued evidentiary
6 hearing.
7 On November 4, 2024, the Court issued an order for Mr. Serrano to show cause why he
8 should not be held in contempt for failing to comply with a subpoena to appear before the Court
9 to give testimony. (Doc. 119). The Court ordered Mr. Serrano to appear for the show cause
10 hearing on December 19, 2024, at 11:00 AM, before the undersigned. Id. at 4.
11 On November 13, 2024, Mr. Serrano filed a response to the show cause order in which
12 he offered various explanations for his failure to appear at the evidentiary hearing – including
13 that he did not have sufficient time after receiving the subpoena (more than two weeks prior to
14 the hearing) to make arrangements to appear and because he suffered from certain physical and
15 mental disabilities. (Doc. 120). In his response, Mr. Serrano requested permission to appear at
16 the upcoming show cause hearing via Zoom. Accordingly, on November 27, 2024, the Court
17 issued a further order to show cause for the limited purpose of affording Mr. Serrano the option
18 of appearing at the December 19 hearing either in person or via Zoom. (Doc. 123).
19 On December 11, 2024, Mr. Serrano contacted the undersigned’s courtroom deputy via
20 email and requested Zoom log-in information for the show cause hearing. Mr. Serrano was
21 provided with the Zoom connection details.
22 The Court convened for the show cause hearing promptly at 11:00 AM on December 19,
23 2024. (Doc. 130). Counsel for the parties and Petitioner were present via Zoom. Mr. Serrano
24 failed to appear, notwithstanding that the undersigned’s courtroom deputy had forwarded to him
25 the Zoom connection details at 10:52 AM as a reminder. After discussion with the parties, at
26 11:11 AM, as Mr. Serrano had neither connected to the hearing nor communicated with the Court
27 to explain his absence, the Court adjourned.
1 Discussion
2 A. The Subpoena and Service of the Subpoena on Mr. Serrano
3 Where a person to be examined is not a party to the action, the witness’s attendance may
4 be compelled by issuing a subpoena under Rule 45. Rule 45 of the Federal Rules of Civil
5 Procedure sets out the requirements for a subpoena. Fed. R. Civ. P. 45 (a)(1)(A).
6 Rule 45 requires that every subpoena must state the court from which it issued, state the
7 title of the action and its civil-action number, specify to each person to whom it is directed the
8 time and place set for the hearing, and set out the text of Rule 45(d) and (e). Fed. R. Civ. P.
9 45(a)(1)(A)(i)-(iv).
10 Review of the subpoena issued here shows that it complied with the requirements of Rule
11 45. The subpoena states that it is issued from the United States District Court for the Eastern
12 District of California and contains the case name and number. The text of Rule 45(d) and (e) is
13 included. The subpoena commands Mr. Serrano to appear on October 4, 2024, at 10:30 a.m. at
14 the U.S. District Courthouse at 510 19th Street, Bakersfield. See (Doc. 119, Exhibit 1).
15 Rule 45 requires “delivering a copy to the named person.” Fed. R. Civ. P. 45(b)(1). In
16 this instance, the Petitioner is a party to this action and is represented by counsel. The proof of
17 service signed by counsel’s agent (investigator Victor D. Gonzalez) reflects that Mr. Serrano
18 was served with a copy of the subpoena in person on September 17, 2024. (Doc. 119, Exhibit
19 1). The Court finds that the requirements of Rule 45 have been substantially complied with in
20 this instance.
21 B. Contempt Proceedings for Non-Compliance with a Valid Subpoena
22 The only authority in the Federal Rules of Civil Procedure to sanction a nonparty to an
23 action for failure to comply with a subpoena is Rule 45(g). Pennwalt Corp. v. Durand-Wayland,
24 Inc., 708 F.2d 492, 494 (9th Cir. 1983). A properly issued subpoena is itself a court order and a
25 party’s noncompliance may warrant contempt sanctions. Id. at 494 n.5; U.S. S.E.C. v. Hyatt,
26 621 F.3d 687, 693 (7th Cir. 2010). Rule 45(g) provides that the court “may hold in contempt a
27 person, who having been served, fails without adequate excuse to obey the subpoena or an order
1 the nonparty has the right to a meaningful opportunity to be heard. Hyatt, 621 F.3d at 697-97;
2 Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1342 (8th Cir. 1975).
3 Determining whether a contempt proceeding is civil or criminal is determined by
4 examining the character of the relief granted. Ahearn ex rel. N.L.R.B. v. Int'l Longshore &
5 Warehouse Union, Locals 21 & 4, 721 F.3d 1122, 1129 (9th Cir. 2013). Where the purpose of
6 the proceeding is to compel compliance with a court order, the action is proceeding for civil
7 contempt. In re D.I. Operating Co., 240 F. Supp. 672, 675 (D. Nev. 1965). “[A] court may
8 impose civil contempt sanctions to (1) compel or coerce obedience to a court order, and/or (2)
9 compensate the contemnor’s adversary for injuries resulting from the contemnor’s
10 noncompliance.” Ahearn, 721 F.3d at 1131. Contempt sanctions tailored to coerce compliance
11 with a court’s order may include jailing the noncompliant person until he complies. See S.E.C.
12 v. Elmas Trading Corp., 824 F.2d 732, 732-33 (9th Cir. 1987).
13 There is no requirement that the contempt be willful and there is no good faith exception
14 to the requirement that court orders must be obeyed. In re Dual-Deck Video Cassette Recorder
15 Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993).
16 “The party moving for contempt has the burden to establish by clear and convincing
17 evidence that the contemnor has violated a clear and specific court order.” Forsythe v. Brown,
18 281 F.R.D. 577, 587 (D. Nev. 2012) report and recommendation adopted, No. 3:10-CV-00716-
19 RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012). “Once the moving party shows by clear and
20 convincing evidence that the contemnor has violated a clear and specific court order, the burden
21 shifts to the contemnor to show that he or she took every reasonable step to comply and to explain
22 why compliance was not possible.” Forsythe, 281 F.R.D. at 587.
23 C. The District Court’s Province to Conduct Contempt Proceedings
24 “28 U.S.C. § 636, which governs the jurisdiction and powers of magistrates, requires a
25 magistrate to refer contempt charges to a district court judge.” Grimes v. City and Cnty. of San
26 Francisco, 951 F.2d 236, 240 (9th Cir. 1991); see 28 U.S.C. § 636 (e)(6) (“the magistrate judge
27 shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any
1 person to appear before a district judge upon a day certain to show cause why that person should
2 not be adjudged in contempt by reason of the facts so certified”); Mondragon v. R T Farm Labor,
3 Inc., No. 1:22-cv-01259-JLT-BAM, 2024 WL 3949345, at *3 (E.D. Cal. Aug. 27, 2024)
4 (“Essentially, the magistrate judge’s role is to determine whether the movant has established a
5 prima facie case of contempt – i.e., whether the movant has shown by clear and convincing
6 evidence that the party or nonparty has violated a court order”) (citation and quotation omitted).
7 As the undersigned previously determined that Mr. Serrano violated a specific and
8 definite order of the Court by failing to appear for the evidentiary hearing in response to
9 Petitioner’s subpoena (Doc. 119), the undersigned will certify the below facts to the assigned
10 District Judge to determine why Mr. Serrano should not be adjudged in contempt and imprisoned
11 until he appears to give sworn testimony in this matter as previously ordered.
12 Certification of Facts
13 Pursuant to 28 U.S.C. § 636(e)(6)(B)(iii), the undersigned certifies the following facts to
14 the district judge assigned to this matter:
15 1. The subpoena directing Mr. Serrano to appear in Court to give testimony on
16 October 4, 2024 (see Doc. 119, Exhibit 1) complied with the applicable
17 procedural requirements of Fed. R. Civ. P. 45;
18 2. Petitioner’s subpoena was properly served on Mr. Serrano, through personal
19 service on him on September 17, 2024 (Doc. 119 at 2);
20 3. On October 4, 2024, Mr. Serrano failed to appear in Court in compliance with the
21 subpoena;
22 4. On November 4, 2024, the undersigned issued an order to show cause directing
23 Mr. Serrano to appear at a show cause hearing on December 19, 2024, why
24 contempt sanctions should not issue;
25 5. On November 13, 2024, Mr. Serrano filed a response in which he represented that
26 he received the Court’s show cause order, offered explanations for his failure to
27 appear on October 4 in compliance with the subpoena, and requested to appear at
1 6. On November 27, 2024, the Court issued a further order to show cause for the
2 limited purpose of affording Mr. Serrano the option of appearing at the December
3 19 hearing either in person or via Zoom. (Doc. 123);
4 7. On December 11, 2024, Mr. Serrano contacted the undersigned’s courtroom
5 deputy via email and requested Zoom log-in information for the show cause
6 hearing. Mr. Serrano was provided with the Zoom connection details; and
7 8. The Court convened for the show cause hearing promptly at 11:00 AM on
8 December 19, 2024, and Mr. Serrano failed to appear. (Doc. 130)
9 Based on these facts, the undersigned recommends that nonparty Alejandro Serrano be
10 held in civil contempt. Mr. Serrano has failed to comply with clear and definite court orders—
11 both the subpoena to appear in Court to give testimony on October 4, 2024, and the Court’s
12 November 4, 2024, show cause order and order to appear on December 19, 2024. Accordingly,
13 the undersigned will set the matter for contempt proceedings before the assigned district judge
14 and recommend imposition of sanctions.
15 Conclusion, Order, and Findings and Recommendations
16 Accordingly, it is HEREBY ORDERED:
17 1. Nonparty Alejandro Serrano shall appear in person before District Judge Kirk E.
18 Sherriff on January 21, 2025, at 1:30 PM in Courtroom 4 (KES), United States
19 District Court, 2500 Tulare Street, Fresno, CA to show cause why he should not
20 be held in contempt for failure to comply with Petitioner’s subpoena;
21 2. Counsel for the parties are directed to appear in person for the show cause hearing
22 unless otherwise excused;
23 3. The Clerk of the Court is directed to mail this order to Mr. Serrano at:
24 Alejandro Serrano
25 2038 N. Divisadero Street
26 Visalia, CA 93291
27 And it is FURTHER RECOMMENDED:
1 2. A fine of $500 be assessed against Alejandro Serrano;
2 3. An order issue directing Alejando Serrano to pay to Petitioner reasonable
3 attorney’s fees and costs incurred in connection with Petitioner’s efforts to obtain
4 Mr. Serrano’s appearance to testify; and
5 4. An arrest warrant issue for Alejandro Serrano and he be ordered detained pending
6 his compliance with the subpoena commanding him to appear and give testimony
7 in this matter.
8 | IT IS SO ORDERED.
| Dated: _ December 19, 2024 | hr
10 UNITED STATES MAGISTRATE JUDGE
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