United States District Court, N.D. Florida, Panama City Division
CHRISTOPHER M. FULLER and NANETTE FULLER, Plaintiffs,
THOMAS LEWIS CURTIS and FREEDOM EXCHANGE COMMUNITY DEVELOPMENT CENTERS OF AMERICA, INC., Defendants.
ORDER COMPELLING MR. CURTIS TO APPEAR FOR HIS
L. Hinkle United States District Judge
plaintiffs Christopher M. Fuller and Nanette Fuller obtained
a money judgment in the Western District of Michigan against
the defendants Thomas Lewis Curtis and Freedom Exchange. The
Fullers registered the judgment in this district and sought
to take Mr. Curtis's deposition in accordance with the
governing rules. Mr. Curtis flouted the rules and the
magistrate judge's orders to appear for the deposition.
Nothing in this record suggests that Mr. Curtis's failure
to appear was anything other than willful contempt of court.
magistrate judge entered a report and recommendation, ECF No.
40, concluding that Mr. Curtis should be ordered to appear,
failing which he should be held in contempt and jailed until
he complied with the order. Mr. Curtis belatedly retained
counsel and filed objections to the report and
recommendation, ECF No. 44. The objections offered no
colorable excuse for Mr. Curtis's prior failures to
appear but quibbled with the phrasing of the magistrate
judge's recommendation and, more importantly, indicated
that Mr. Curtis had purged his contempt by appearing for his
deposition on December 19, 2016-more than seven months after
he was first ordered to appear.
Fullers now have moved, in effect, to compel Mr. Curtis to
appear again. Mr. Curtis has not responded to the motion, and
the deadline for a response has passed. According to the
Fullers' unrebutted motion, Mr. Curtis appeared for his
deposition but evaded most questions, unduly prolonging the
deposition, which could not be finished. The parties agreed
that the deposition would continue on January 17, but Mr.
Curtis now has said he will not appear at that time, based on
the limit on the duration of a deposition under Federal Rule
of Civil Procedure 30.
order authorizes a deposition of longer duration and compels
Mr. Curtis to appear. The time for Mr. Curtis to take
seriously his obligation to comply with the court's
orders is now. A litigant who defies a court order usually
finds that the situation does not end well. Possible
sanctions include not only a finding of civil
contempt-together with incarceration until the litigant
complies with the order- but also prosecution for criminal
contempt. A criminal contempt conviction carries a maximum
penalty of five years in prison and cannot be purged through
belated compliance with the order. If Mr. Curtis fails to
appear for his deposition as ordered, the case may be
referred to the United States Attorney for evaluation of
whether to bring criminal contempt charges.
a word is in order about Mr. Curtis's assertion, in
response to the report and recommendation, that Mr. Curtis
cannot be jailed until he complies with the order, because
while in jail he cannot comply with the order. That is
incorrect. Depositions of prisoners can be and routinely are
conducted within a correctional facility. If necessary, Mr.
Curtis can be arrested, taken to jail, deposed there, and
released. The logistics are not always easy, and Mr. Curtis
may spend one or more nights in custody while arrangements
are made. But sooner or later, Mr. Curtis is going to sit for
his deposition. The right decision is to do it now.
these reasons, IT IS ORDERED:
report and recommendation, ECF No. 40, is accepted in part
and vacated as moot in part.
plaintiffs' motions for an order of civil contempt,
sanctions, and to extend the duration for a continued
deposition, ECF Nos. 38 and 46, are granted in part, as set
out in this order.
defendant Thomas Lewis Curtis must appear for his continued
deposition on January 17, 2017, at 10:00 a.m., at the same
place where Mr. Curtis appeared for his deposition on
December 19, 2016. But by agreement between the
plaintiffs' attorney and Mr. Curtis's attorney, the
deposition may be rescheduled. Any such agreement must be
confirmed in writing or by email. If the deposition is
rescheduled, Mr. Curtis must appear at the time and place
specified in the attorneys' agreement to reschedule the
plaintiffs' attorney may examine Mr. Curtis for up to
seven additional hours. Time examining Mr. Curtis means time
spent on questions asked by the plaintiffs' attorney and
answers to the questions, including normal delays between
questions and answers, but not including time spent on
Curtis must respond directly to each question asked at the
deposition (unless his attorney instructs him not to answer
on grounds that are permissible under the Federal Rules of
Civil Procedure). In responding to a question, Mr. Curtis
should not volunteer information unrelated to the question.
Jurisdiction is reserved to award sanctions for Mr.