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LONG v. McDERMOTT

United States District Court, N.D. Illinois, Eastern Division


November 22, 2004.

KEVIN JAY LONG, Plaintiff,
v.
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 contempt.

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.

  Sanctions

  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.


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