United States District Court, N.D. Illinois, Eastern Division
November 22, 2004.
KEVIN JAY LONG, Plaintiff,
POLICE OFFICER MICHAEL J. McDERMOTT, EMERY JOSEPH YOST, JOHN YOST AND JITKA YOST, Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Kevin Jay Long filed a complaint alleging, inter
alia, violations of his civil rights by Police Officer Michael
J. McDermott and citizens Emery Joseph, John, and Jitka Yost
("Yost Defendants"). The Yost Defendants moved for rule to show
cause why Mr. Long should not be held in contempt of court for
failure to properly serve them and for other aspects of Mr.
Long's behavior during this litigation. I granted that motion on
July 8, 2004, ruling that Mr. Long was entitled to a factual
hearing to show cause regarding allegations that he suborned
falsehoods and filed false returns of service and that he
published Defendants' social security numbers in violation of an
explicit court order. Mr. Long appeared before me on September
21, 2004, and again on October 22, 2004, to address these
allegations and to show cause why he should not be held in
The authority to find Mr. Long in civil contempt and to impose
sanctions upon him "rests in [this court's] inherent limited
authority to enforce compliance with court orders and ensure
judicial proceedings are conducted in an orderly manner." Jones
v. Lincoln Elec. Co., 188 F.3d 709, 737-38 (7th Cir. 1999). In
order to find Mr. Long in contempt, I must show that he violated a decree from this court that "set forth in specific detail an
unequivocal command." H.K. Porter Co. v. National Friction
Prods. Corp., 568 F.2d 24, 27 (7th Cir. 1977). A finding of
civil contempt is not a punitive measure; rather, it is coercive
or remedial in nature and is "designed to compel the contemnor
into compliance with an existing court order or to compensate the
complainant for losses sustained as a result of the contumacy."
Jones, 188 F.3d at 738 (citations omitted). In this case,
sanctions for subornation of falsehood and filing false returns
would be remedial in nature, whereas sanctions for publishing
Defendants' social security numbers. See Long v. McDermott, No.
03 C 6101, 2004 U.S. Dist. LEXIS 12639 (N.D. Ill. July 8, 2004)
at *6-7. Based on the September and October hearings and on Mr.
Long's conduct and statements throughout this litigation, I find
Mr. Long in contempt of court on both counts and impose sanctions
as described below.
Violation 1: Failure of Service, Filing False Returns of
Service & Suborning Falsehoods
Mr. Long failed to effect proper service on the Defendants as
required by the Federal Rules of Civil Procedure. Proper
service is achieved by delivering a copy of the summons and
complaint to the defendants personally. Under Fed.R. Civ. P.
4(m) this service must be made within 120 days after filing the
complaint or the action must be dismissed with prejudice. Mr.
Long filed his complaint on August 29, 2003; however, summonses
for the Defendants were not issued until January 6, 2004, after
the 120-day deadline for proper service. Moreover, the Clerk of
the Court refused to seal the summonses because the attached
returns of service falsely alleged service long before the
summonses were issued. In the rule to show cause hearings, I
asked Mr. Long to show cause for filing false returns and
thereafter insisting service was proper. Defendants first challenged Mr. Long's service of the complaint
and summonses at a hearing on January 6, 2004. When Defendants
asked him to prove proper service, Mr. Long stated, "Judge, I am
filing that today . . . I am filing the affidavits [averring
proper service] today." Hr'g Tr., at 9. Mr. Long subsequently
submitted copies of un-sealed summonses issued by the Clerk on
January 6, 2004 (the date of the hearing). The return of service
attached to each summons acknowledges a service date prior to
January 6 an impossibility.*fn1
Nevertheless, Mr. Long continued to assert that service was
proper. On February 4, 2004, Mr. Long filed a document with this
court stating several times that Defendants were "properly
served" and that the returns were "properly filed." Pl.'s Ans.
to Def. Mot. for Sanctions, at 2-3. Additionally, at a hearing
on February 19, 2004, Mr. Long insisted that he had not committed
fraud on January 6 when assuring me that he effected proper
service on Defendants. Hr'g Tr., at 12. Mr. Long even alleged
that Defendant's Motion for Rule to Show Cause was "frivolous."
Pl. Ans. to Def. Mt. to Quash, at 2 (again stating "I properly
filed the Returns of Service on 1/6/04").*fn2 Finally, on September 21, 2004, Mr. Long admitted that service
on Defendants was not proper. Hr'g Tr., at 25-26. ("It was my
mistake. I sent out the summons and the complaints. The summons
lacked the Clerk's seal and signature. I was under the impression
when I bring it back I get it sealed.") At the hearing it became
clear that Mr. Long knew as early as January 6, 2004 if not
earlier that he had failed to serve Defendants
properly.*fn3 Id. at 26. ("The only problem was, which we
all know now, is that I didn't get the summons stamped and sealed
and signed prior to serving it. I went up and I had it filed.
They filed it with a deficiency for the obvious reason.") Mr.
Long offered no credible explanation for his decision to file
false returns of service or for his subsequent written and oral
declarations that service was proper, but suggested that, at
worst, he violated a mere "technicality" not rising to the level
of improper service.
Mr. Long attempted to mislead this court in an effort to
prolong litigation against his rivals in a protracted and nasty
neighborhood dispute. To this day, Mr. Long continues to deny
improper service, despite convincing evidence and his own
admission to the contrary. His actions not only suborned
falsehood, but obstructed justice. I therefore find him in
contempt and impose sanctions as described below. See Ex parte
Hudgings, 249 U.S. 378, 383 (1919) (a witness cannot be found in
civil contempt without finding both perjury and an "obstruction
to the performance of judicial duty resulting from an act done in
the presence of the court"). Violation 2: Publishing Defendants' Social Security Numbers
Additionally, I hold Mr. Long in contempt for publishing
Defendants' social security numbers on documents filed with this
court in direct violation of "an explicit court order." See
Jones, 188 F.3d at 738. On February 19, 2004, I ordered Mr. Long
to cease immediately his practice of including Defendants' social
security numbers on documents filed in this court.*fn4 Long
v. McDermott, No. 03 C 6101 (N.D. Ill. filed Aug. 29, 2003)
(order striking and redacting complaint and requiring amended
complaint). It is undisputed that in his response to Defendants'
Motion to Quash Service, filed on June 7, 2004, Mr. Long once
again included the Defendants' social security numbers and other
personal information in the caption. See Pl. Ans. To Def. Mot.
To Quash, at 1.
At the September and October rule to show cause hearings, Mr.
Long failed to show why he should not be held in contempt for
violating this order. To the contrary, Mr. Long insisted that I
never ordered him to cease publishing Defendants' personal
information in court documents. Hr'g Tr., Sept. 21, 2004, at
15. ("This Court has never issued me any orders concerning the
publishing of personal information. I have the transcripts.")
That statement was clearly incorrect, and Mr. Long offered no
adequate explanation for what I find to be a deliberate decision to violate that order.*fn5 Defendants, therefore,
are entitled to remedial sanctions. See Jones, 188 F.3d at 138.
To date, Defendants have incurred more than $10,000 in
attorneys' fees and costs. Mr. Long has failed to provide
information regarding his ability to pay these fees as I
encouraged him to do on October 22, 2004. Given that his conduct
subjects him to both remedial and coercive sanctions, I impose
sanctions for the full amount of Defendants' costs, which include
$10,500 in attorneys' fees and $598.16 in costs. This award is
intended to compensate Defendants for the cost of defending against a lawsuit for which proper service was
never made, and to ensure Mr. Long's future compliance with my
explicit order to stop publishing Defendants' personal
information (including but not limited to their social security
numbers) in documents filed with this court.