United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Sowell sued RAV Investigative & Security Services, LTD
and Sonesta International Hotels Corporation alleging
violations of Title VII of the Civil Rights Act of 1964 and
the Pennsylvania Human Relations Act. Sowell was employed by
RAV, who assigned him to work as a security guard at Sonesta.
Sowell contends that his managers at RAV harassed and
eventually terminated him because of his religion. R AV
failed to appear or otherwise respond to Sowell's
complaint, eventually leading to a default judgment against
RAV. Sowell and Sonesta settled Sowell's remaining
claims. After the default judgment, and upon Sowell's
motion, the Court ordered R AV to respond to Sowell's
post-judgment interrogatories and produce a corporate
designee for a deposition to identify RAV's executable
assets. Sowell now moves to hold R AV in contempt for its
failure to comply with the Order. The Court denies the motion
filed his complaint on June 30, 2015. (ECF No. 1.) He
attempted to serve R AV via a waiver of service, but RAV did
not sign and return the waiver or otherwise appear.
(Pl.'s Mot. to Enter Default J. (“Pl.'s
Mot.”) ¶¶ 1-2, Ex. A, ECF No. 17.) On August
18, 2015 Sowell personally served one of RAV's officers
with a copy of the summons and complaint. (Id., Ex.
B.) After RAV failed to appear or respond to the complaint,
Sowell's counsel sent a letter to R AV on October 5, 2015
stating that he would file a motion for default judgment if a
representative from RAV did not contact him by October 12,
2015. (Id., Ex. C.) R AV did not respond to the
letter and Sowell requested the clerk of court to enter
default pursuant to Rule 55(a). (ECF No. 13.) The clerk
entered default against RAV on October 15, 2015. (ECF No.
14.) Sowell then filed a motion for default judgment on
December 1, 2015, (ECF No. 17), which the Court granted on
May 26, 2016, (ECF No. 30).
the entry of default judgment against RAV, Sowell sought
post-judgment discovery in order to determine and locate
RAV's assets as a judgment debtor. See
(id. at 6-7). Sowell filed a motion to compel R AV
to respond to his post-judgment discovery requests, (ECF No.
54), which R AV did not respond to in any way. On December 1,
2016 the Court granted the motion and ordered RAV to provide
full and complete responses to Sowell's post-judgment
interrogatories and to produce a corporate designee for
deposition pursuant to Federal Rule of Civil Procedure
30(b)(6) within thirty days of the Order. (ECF No. 55.)
Sowell mailed a copy of the order to RAV via regular mail.
(Pl.'s Mot. to Compel, at 7, ECF No. 57.)
has not responded to Sowell's discovery requests.
(Id. at 1-2.) On January 9, 2017 Sowell filed a
motion for contempt pursuant to Federal Rule of Civil
Procedure 37(b)(2)(A)(vii). (ECF No. 57.)
the Court may hold a party in civil contempt, the party
seeking the contempt order must show that: (1) a valid court
order existed; (2) the defendant had knowledge of the order;
and (3) the defendant disobeyed the order. Roe v.
Operation Rescue, 919 F.2d 857, 871 (3d Cir. 1990). The
movant must establish each of these elements by clear and
convincing evidence. Gregory v. Depte, 896 F.2d 31,
38 (3d Cir. 1990).
has not established each element by clear and convincing
evidence. While a valid court order clearly existed, Sowell
has not established that R AV had knowledge of the order.
Sowell states that he “served a copy of the Order on
RAV via U.S. mail, ” and thus “there can be no
dispute that R AV received knowledge of the Order.”
(Pl.'s Mot. to Compel, at 7, ECF No. 57.) Sowell notes
that the mail was not returned by the post office,
(id. at 8), and contends that this establishes
RAV's knowledge of the Order. Sowell relies on the common
law “mailbox rule” to support this argument.
(Id. at 7-8 (citing Phila. Marine Trade
Ass'n.-Int'l. Longshoremen's Ass'n Pension
Fund v. C.I.R., 523 F.3d 140, 147 (3d Cir. 2008);
Heath-El v. Harrisburg Housing Auth., No. 10-0022,
2011 WL 1771047, at *1 (M.D. Pa. 2011)).) The “mailbox
rule” cases Sowell relies upon are, however,
inapplicable. Philadelphia Marine dealt with the
timely filing of tax documents, see Phila. Marine,
523 F.3d at 146, and Heath-El concerned the mailing
of an order under Federal Rule of Civil Procedure 41(b) for a
plaintiff's failure to prosecute, see Heath-El,
2011 WL 1771047, at *1. Neither case required the moving
party to demonstrate the other party's knowledge by clear
and convincing evidence.
in this circuit typically require more than a single instance
of regular mail to suffice as clear and convincing evidence
of an alleged contemnor's knowledge of a court order. In
Residential Roofers Local 30-B Health & Welfare Fund
v. Rynk Roofing, 848 F.Supp. 590 (E.D. Pa. 1994), for
example, the plaintiff established that the contemnor had
knowledge of a valid court order by mailing the order to the
contemnor via regular mail, certified mail, and the United
Parcel Service (“UPS”). 848 F.Supp. at 592. While
the certified mail was returned, the regular mail was not,
and the copy sent via UPS was successfully delivered, though
the recipient refused to sign. Id. Even where the
certified mail was returned, however, the plaintiffs were
able to establish a paper trail which, in conjunction with
regular mail, established clear and convincing evidence that
the contemnor had knowledge of the order. See id.
New Jersey Building Laborers' Statewide Benefit Funds
v. Excel Service & Construction, Inc., No. 09-0583,
2009 WL 3335864 (D.N.J. Oct. 13, 2009), the court reached a
similar conclusion where the plaintiff purported to serve the
alleged contemnor with the court's order via regular and
certified mail. 2009 WL 3335864, at *1. The court noted that
although the certified mail was returned unclaimed and the
regular mail was not returned to the post office, the
plaintiff's failure to include the paper trail generated
by the certified mail undermined the plaintiff's showing
of the alleged contemnor's knowledge of the court order.
Id. at *2. Even if the certified mail was returned,
its paper trail, coupled with the fact that the regular mail
was unreturned, “would have shown the Court that [the
alleged contemnor] had many opportunities to learn of and
adhere to this Court's Order, and chose not to.”
Id. But cf. also Abex Labs., Inc. v. Cooperider, 319
F.Supp.2d 507, 509 (E.D. Pa. 2004) (finding that regular
mail, in addition to the clerk of court mailing a copy of the
order to the alleged contemnor was ...