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National Credit Union Administration Board v. Cumis Insurance Society, Inc.

United States District Court, D. Minnesota

October 22, 2018

National Credit Union Administration Board, Plaintiff,
v.
Cumis Insurance Society, Inc., Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE

         This matter came before the undersigned United States Magistrate Judge on October 17, 2018, pursuant to a general assignment made in accordance with the provision of 28 U.S.C. § 636, Defendant's Notice of Third Party Witness's Non-Compliance, [Docket No. 143], and the Court's Order to Show Cause. [Docket No. 203].

         Based upon the pleadings, this Court certifies to the District Court the Findings of Fact as set forth below, and makes the following recommendations for the reasons articulated in this Report and Recommendation:

1. Kevin R. Sobiech be found in contempt of Court pursuant to Rule 45(g).
2. Kevin R. Sobiech be arrested immediately by the United States Marshal and detained until he purges his contempt by making arrangements to comply with the August 1, 2018, Order compelling him to comply with CUMIS's subpoena.
3. Counsel for CUMIS must personally serve Kevin R. Sobiech with this Report and Recommendation and file proof of such service on CM/ECF.

         I. FINDINGS OF FACT

         In connection with the Order to Show Cause, [Docket No. 203], and in support of this Court's recommendation that Kevin R. Sobiech (hereinafter “Mr. Sobiech”) be held in contempt, the undersigned enters the following Findings of Fact.

         On May 17, 2018, CUMIS issued a subpoena to depose Mr. Sobiech on June 1, 2018, in Minneapolis, and for Mr. Sobiech to produce at that time “[a]ll documents related to any loans, loan advances, and/or related transactions at St. Francis Campus Credit Union from 2004 to 2014.” (Moraites Dec., Ex. 1 [Docket No. 146-1], at 2-7). Mr. Sobiech was personally served with the subpoena and a witness fee. (Moraites Dec., Ex. 2, [Docket No. 146-2], at 2). Mr. Sobiech did not appear for the June 1, 2018, noticed deposition. (Moraites Dec., Ex. 3, [Docket No. 146-3], at 2- 4). Additionally, he did not communicate to CUMIS in any way that he was unable to appear for the deposition, nor did he respond to CUMIS's subsequent attempts to communicate with him regarding his failure to appear for the deposition. (Id. at 3). Accordingly, CUMIS filed a Motion to Compel Mr. Sobiech's attendance. (Motion to Compel Non-Party Kevin R. Sobiech's Compliance with Subpoena and for Contempt [Docket No. 143]).

         The Court held a hearing on the Motion to Compel on August 1, 2018, and, after observing that the record before the Court demonstrated that Mr. Sobiech was served with a subpoena for a June 1, 2018, deposition and document production, that he failed to comply with that subpoena, and that he had offered no excuse for his failure to comply, the Court thus ordered Mr. Sobiech to appear at a deposition to be noticed pursuant to a renewed subpoena on or before August 31, 2018, in Little Falls, Minnesota. (Minute Entry [Docket No. 181]). The Court also ordered counsel for CUMIS to personally serve the Court's August 1, 2018, Order, and renewed subpoena and witness fee, as well as, Notice for the rescheduled deposition on Mr. Sobiech and to file proof of such service on CM/ECF. (Order, [Docket No. 182], at 2). In its August 1, 2018, Order, the Court also stated that after being personally served with Notice and the August 1, 2018, Order, the Court would automatically issue an Order to Show Cause if CUMIS demonstrated that Mr. Sobiech did not comply with the August 1, 2018, Order. (Id.).

         CUMIS served the Court's August 1, 2018, Order and renewed subpoena and witness fee, as well as, Notice for the rescheduled deposition on Mr. Sobiech on August 10, 2018. (Aff. of Service [Docket No. 199]). The deposition was scheduled to occur on August 23, 2018, in Little Falls, Minnesota. (Notice [Docket No. 201]). Mr. Sobiech did not appear for the August 23, 2018, deposition and CUMIS notified the Court on August 27, 2018, that Mr. Sobiech did not comply with the Court's August 1, 2018, Order. (Notice [Docket No. 201]).

         On August 28, 2018, the Court issued its Order to Show Cause ordered counsel for CUMIS to personally serve the Court's Order to Show Cause on Mr. Sobiech. (Order [Docket No. 203]). CUMIS personally served the Order to Show Cause on Mr. Sobiech on August 30, 2018. (Aff. of Service [Docket No. 2014]).

         On October 17, 2018, pursuant to its Order, [Docket No. 203], the Court held a Show Cause Hearing, which was scheduled for 1:30 p.m. (Minutes [Docket No. 220]). Kevin R. Sobiech was not present in Court at the appointed time, nor had he contacted the Court regarding his appearance or lack thereof. The Court waited an additional 15 minutes to begin the hearing to accommodate Mr. Sobiech in the event that he was running late. Even after the delay, Mr. Sobiech had not appeared. Counsel for Plaintiff and Defendant both appeared. (October 17, 2018, Show Cause Hearing, Digital Record). At the hearing, counsel for Plaintiff and Defendant both stated on the record that neither had received any type of communication from Mr. Sobiech regarding either the Order to Show Cause or the October 17, 2018, hearing. (Id. at 1:59 p.m.-2:03 p.m.).

         II. ...


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