United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
HONORABLE LEO I. BRISBOIS UNITED STATES MAGISTRATE JUDGE
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].
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
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.
FINDINGS OF FACT
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
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]).
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.).
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
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.
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.).