message that court orders and judgments are to be complied with in a prompt manner.” Gary's
Elec. Serv. Co., 340 F.3d at 378 (citing NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th
Cir. 1987)). In a contempt proceeding, the moving party must demonstrate “by clear and
convincing evidence that the party to be held in contempt violated a court order.” U.S. v.
Conces, 507 F.3d 1028, 1042 (6th Cir. 2007); Gary’s Elec. Serv. Co., 340 F.3d at 379. “Once
the movant establishes his prima facie case, the burden shifts to the contemnor who may defend
by coming forward with evidence showing that he is presently unable to comply with the court’s
order.” Gary's Elec. Serv. Co., 340 F.3d at 379. To satisfy this burden, “a respondent must
show categorically and in detail why he or she is unable to comply with the court’s order.”
Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996) (quotation omitted). The
Court must consider whether the respondent “took all reasonable steps within his power to
comply with the court’s order.” Gary's Elec. Serv. Co., 340 F.3d at 379 (quotation omitted).

In the instant case, respondent Mac Printing and John McLaughlin’s failure to appear
before the Court after being ordered to do so by the undersigned magistrate judge constitutes
disobedience of lawful court orders and thus contempt before the magistrate judge. See United
States v. Ivie, No. 05-2314, 2005 WL 1759727, at *2 (W.D. Tenn. June 14, 2005) (“Contempts
committed in ‘a proceeding before a magistrate judge’ include not only contempts committed in
the magistrate judge’s presence, but also contempts related to proceedings before the magistrate
judge.”) (citing Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 901 n. 17 & 902 n. 19
(3rd Cir. 1992)).

Accordingly, it is recommended that the district judge issue a show cause order to Mac

Printing and John McLaughlin to appear at a date certain before the district judge to show cause

uw


Internal Revenue Service summons had been personally served upon respondent Mac Printing by
hand-delivering a copy to John McLaughlin on June 21, 2018. (Doc. 3). However, neither
respondent Mac Printing nor John McLaughlin appeared for the show cause hearing on July 26,
2018. (Doc. 4).

On July 27, 2018, respondent Mac Printing and John McLaughlin were ordered to show
cause why respondent Mac Printing and/or John McLaughlin! should not be held in contempt of
court for failing to appear for the July 26, 2018 hearing. (Doc. 5). The show cause hearing was
scheduled before the undersigned magistrate judge on Friday, September 7, 2018 at 10:00 a.m. in
Courtroom 708, U.S. Courthouse Building, 100 E. Fifth Street, Cincinnati, Ohio 45202. (d.).
Respondent Mac Printing and John McLaughlin were warned that failure to appear for the show
cause hearing as ordered may result in contempt proceedings before the district judge and a
warrant being issued for their arrest. (/d.). This Show Cause Order and notice of hearing were
personally served on John McLaughlin on August 10, 2018. (Doc. 6). Respondent Mac
Printing and John McLaughlin failed to appear at the September 7, 2018 hearing, failed to notify
the Court that they would not be present, and failed to seek a continuance or otherwise object.
(Doc. 8).

Ill. ANALYSIS
Disobedience of a lawful court order may be punishable as contempt. Glover v.

Johnson, 138 F.3d 229, 245 (6th Cir. 1998). The contempt power of the court “enforce[s] the

' “Ifa corporate officer avoids a court’s order to the corporation for failing to take action or attempt compliance,
‘they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt.” JBEW vy.
Gary’s Elec. Serv. Co., 340 F.3d 373, 383 (6th Cir. 2003) (quoting Wilson v. United States, 221 U.S. 361, 376

(1911)).


during a hearing why they should not be held in contempt of court for failing to obey the Court’s
July 27, 2018 Show Cause Order.
IV. CONCLUSION

It is hereby RECOMMENDED that the district judge issue a show cause order to
respondent Mac Printing and John McLaughlin to appear at a date certain before the district
judge to show cause during a hearing why they should not be held in contempt of court for

failing to obey the Court’s July 27, 2018 Show Cause Order.

pa: 2/08 Kner Zbthoute

Karen L. Litkovitz
United States Magistrate Judge



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, Case No. 1:18-cv-427
Petitioner, Black, J.
Litkovitz, M.J.
Vv.
MAC PRINTING CO., LLC, REPORT AND
Respondent RECOMMENDATION

Petitioner United States of America seeks enforcement of an Internal Revenue Service
summons issued to respondent Mac Printing Co., LLC (Mac Printing).

This matter is before the Court for a Report and Recommendation and Certification of
Facts to the District Court regarding respondent’s failure to appear before the undersigned
magistrate judge for a show cause hearing on why it should not be held in contempt of court for
its failure to appear at a previously scheduled hearing in this matter.

For the reasons that follow, it is recommended that a show cause order be issued to
respondent Mac Printing and its President John McLaughlin to appear before the district judge
on a date certain and show cause why they should not be held in contempt of this Court.

I. MAGISTRATE JUDGE’S AUTHORITY ON MOTION FOR CONTEMPT

Section 636(e) of the United States Magistrate Judges Act governs the contempt authority
of magistrate judges. 28 U.S.C. § 636(e)(1). That section provides that a “magistrate judge
serving under this chapter shall have within the territorial jurisdiction prescribed by the
appointment of such magistrate judge the power to exercise contempt authority as set forth in
this subsection.” In civil cases where the parties have not consented to final judgment by the

magistrate judge, contempt is governed by Section 636(e)(6)(B):


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
UNITED STATES OF AMERICA, Case No. 1:18-cv-427
Petitioner, Black, J.

Litkovitz, M.J.
Vv.

MAC PRINTING CO., LLC,
Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas y. Arn,

474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).


(6) Certification of other contempts to the district court.--Upon the commission of
any such act--

(B) in any other case or proceeding under subsection (a) or (b) of this section,
or any other statute, where--

(i) the act committed in the magistrate judge’s presence may, in the
opinion of the magistrate judge, constitute a serious criminal

contempt punishable by penalties exceeding those set forth in
paragraph (5) of this subsection,

(ii) the act that constitutes a criminal contempt occurs outside the
presence of the magistrate judge, or

(iii) the act constitutes a civil contempt,
the magistrate judge shall forthwith certify the facts to a district judge and may
serve or cause to be served, upon any person whose behavior is brought into
question under this paragraph, an order requiring such person to appear before a
district judge upon a day certain to show cause why that person should not be
adjudged in contempt by reason of the facts so certified. The district judge shall
thereupon hear the evidence as to the act or conduct complained of and, if it is such

as to warrant punishment, punish such person in the same manner and to the same
extent as for a contempt committed before a district judge.

28 U.S.C. § 636(e)(6)(B).
“The magistrate judge’s role on a motion for contempt in non-consent cases is to certify
facts relevant to the issue of contempt to the district judge.” Lykins Oil Co. v. Hoskins Oil Co.,
LLC, No. 1:14-cv-832, 2017 WL 1180932, at *1 (S.D. Ohio Mar. 29, 2017) (Report and
Recommendation), adopted, 2017 WL 2160518 (S.D. Ohio May 17, 2017) (and cases cited
therein). “The certification of facts under section 636(e) serves to determine whether the
moving party can adduce sufficient evidence to establish a prima facie case of contempt.”
Telebrands Corp. v. Marc Glassman, Inc., No. 3:09-cv-734, 2012 WL 1050018, at *1 (D. Conn.

Mar. 28, 2012) (quoting Church v. Steller, 35 F. Supp.2d 215, 217 (N.D. N.Y. 1999)).


Il. CERTIFIED FACTS

The following facts are certified to the district court: Revenue Officer Brandon Havlin
is conducting an investigation into the tax liability of Mac Printing Co., LLC for the years 2012
through 2017. (Doe. 1, Ex. A). On March 30, 2018, an Internal Revenue Service summons
was issued by Revenue Officer Havlin directing respondent Mac Printing to appear before
Havlin on April 30, 2018, at 8:00 a.m. at 550 Main Street, Room 3511, Cincinnati, Ohio 45202,
to testify and to produce books, records, and other data described in the summons. Service of
the summons on respondent Mac Printing was effected on March 30, 2018, when Revenue
Officer Havlin personally served John McLaughlin, President of Mac Printing, with the
summons. (Doc. 1, Ex. B). Revenue Officer Havlin attests that the books, papers, records, or
other data sought by the summons are not already in the possession of the Internal Revenue
Service, and all administrative steps required by the Internal Revenue Code for issuance of a
summons have been taken. (Doc. 1, Ex. A). Revenue Officer Havlin further attests that it is
necessary to examine the books, papers, records, or other data sought by the summons in order to
properly investigate the federal tax liability of Mac Printing for calendar years 2012 through
2017. (Id).

On April 30, 2018, respondent Mac Printing did not appear in response to the summons.
Respondent has refused to comply with the summons to date. (/d.).

On June 20, 2018, respondent Mac Printing was ordered to appear in Court on July 26,
2018 at 10:00 a.m. to show cause why respondent should not be compelled to obey the Internal
Revenue Service summons. (Doc. 2). The Order to Show Cause regarding the enforcement of

the Internal Revenue Service summons and the United States’ petition and exhibits to enforce the