Sanctions — When Summary Criminal Contempt May Be Used in Civil Actions — Upheld for Yelling Foul Insult at Judge during Telephonic Conference — Sufficiency of Notice Where Civil vs. Criminal Contempt Not Specified

From Ocean-Oil Expert Witness, Inc. v. O’Dwyer, 2011 U.S. App. LEXIS 20467 (5th Cir. Oct. 6, 2011):

Ashton O'Dwyer, pro se, appeals a default judgment granted to Ocean-Oil Expert Witness, Inc. ("Ocean-Oil"), after his answer was stricken as a contempt sanction. Because the use of inherent power was appropriate in light of O'Dwyer's bad faith and wilful abuse of the judicial process, we affirm.***

O'Dwyer was a New Orleans attorney who obtained the services of Hector Pazos, a marine engineer, in connection with claims his clients made relating to Hurricane Katrina. O'Dwyer was later suspended in disciplinary proceedings, presided over by United States District Judge Ivan Lemelle, and eventually was disbarred. As a result, several cases in which he was acting as plaintiff or counsel for plaintiffs were administratively closed or stayed. Additionally, he was prohibited from filing anything in that district other than notices of appeal until he paid his monetary sanctions and was permitted to file papers again by a judge in the district.

After making the first and part of the second payment to Ocean-Oil, O'Dwyer did not make any further payments. Ocean-Oil sued him for the outstanding balance of $90,831.57. The district court held a Federal Rule of Civil Procedure 16 scheduling conference by telephone to select new pretrial and trial dates after the initial dates had to be pushed back because of various delays. During that conference, O'Dwyer asked for permission to object to the trial's going forward. The court explained that it would not take oral motions or objections and would respond only to written filings. O'Dwyer then had the following exchange with the court:

MR. O'DWYER: I'm precluded from doing anything in writing.

THE COURT: Not in this case. Not in this case. Not in this case, sir. Not in this case.

MR. O'DWYER: Well, that's a double standard that you're applying to me, and I would think that you of all people would know what I'm talking about.

THE COURT: You want to yell a little louder? As I said before —

MR. O'DWYER: Screw you.


Once the district court struck O'Dwyer's answer, default judgment naturally followed, so the question is whether striking was appropriate. O'Dwyer contests three features of the sanctions: (i) He did not receive proper notice of the allegations and criminal nature of the contempt; (ii) a different judge should have been called to preside over the contempt hearing; and (iii) the sanction of striking his pleading and issuing a default judgment was inappropriate. This case is properly analyzed as two separate instances of punishment: one in which O'Dwyer was punished for screaming "screw you" at the court and a second in which the punishment was increased for failure to satisfy the requirements of the first punishment and the manner of O'Dwyer's refusal to do so.


First, the court held O'Dwyer in direct contempt using the summary contempt procedures in Rule 42(b) of the Federal Rules of Criminal Procedure. Summary disposition is available whenever a judge can certify that he saw or heard the conduct that constitutes contempt and that conduct was done in the actual presence of the court. United States v. Wilson, 421 U.S. 309, 314-15 (1975). These procedures allow a judge summarily to punish someone who commits criminal contempt in the court's presence if the judge saw or heard the contemptuous conduct, without a full hearing, see Rule 42(b), although this court still requires at least notice and a brief opportunity for the contemnor to be heard. United States v. Brannon, 546 F.2d 1242, 1249 (5th Cir. 1977). Also, despite the breadth given by the rule's wording, when time is not of the essence, non-summary procedures should be used. Wilson, 421 U.S. at 319. Summary procedures are meant for situations in which immediate corrective steps must be taken to restore order and maintain the dignity and authority of the court. Farmer v. Strickland, 652 F.2d 427, 437 (5th Cir. Unit B Aug. 1981). The circuit courts of appeals are charged with the task of making sure the power of summary disposition is not abused. Wilson, 421 U.S. at 319.

Regarding this first contempt sanction, the summary contempt procedure was not improperly used. O'Dwyer shouted "Screw you" at the court and hung up during a Rule 16 conference that took place on a phone call among both parties and the court. Because the comment was shouted at the court, the judge heard the contemptuous conduct. Although the conference was conducted by phone, it is still a direct proceeding with the court, as part of the business in that case, and so conduct occurring during a judicial proceeding over telephone qualifies as conduct before the court.

Finally, it was not an abuse of discretion for the judge to determine that immediate action was needed to maintain the dignity and authority of the court and to restore order to the proceedings. See Farmer, 652 F.2d at 437. Shouting "screw you" at the court during a judicial proceeding does impact the dignity and authority of the court, and if one party is willing to disrupt proceedings when he becomes upset at an action the court takes, such as by hanging up the phone here, it can inhibit the progress of the matter. Therefore, taking immediate action through the summary contempt power was not an abuse of discretion.

Though Rule 42(b) does not require notice or hearing, this circuit requires notice and a brief opportunity to be heard in summary contempt proceedings. Those requirements were met. O'Dwyer objected that there was insufficient description of the facts for which he was being charged with contempt and that the order did not specify it was criminal contempt. He was ordered to show cause for shouting "screw you" at the court and hanging up during the conference. This provides sufficient notice of the facts for which he was threatened with contempt. He was given the opportunity to respond in writing by the show cause order, and he did file a response to the order.

Additionally, an order to show cause that just says "contempt" without specifying civil or criminal can be adequate notice the contempt is criminal if the behavior the contemnor is charged with could only be remedied by punitive sanctions. Am. Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d 523, 530-31 (5th Cir. 1992). Here, the improper behavior had already occurred, so only punishment, rather than coercion, would be applicable. O'Dwyer cannot be coerced not to have made the comment or not to have hung up the phone. Furthermore, he recognized in his brief that the key distinction between civil and criminal punishment is whether the penalty imposed is absolute or conditional, and all the punishments imposed were absolute. Even without specifying the contempt was criminal, it was plain from the order, so the notice requirement was met.

Relying on American Airlines, O'Dwyer argues that another judge should have been called to hear the issue of contempt. A trial judge should step aside to allow another judge to handle contempt charges where the trial judge has become too personally embroiled with the contemnor, Farmer, 652 F.2d at 438-39, because problems arise where a judge becomes "embroiled in intemperate wrangling with petitioner," Ungar v. Sarafite, 376 U.S. 575, 585 (1964). Judges are therefore cautioned against "vent[ing] personal spleen or respond[ing] to a personal grievance." Offutt v. United States, 348 U.S. 11, 14 (1954).

The only instance on the record that O'Dwyer points to to show such wrangling is where the judge said "not in this case" four times. That may show some degree of frustration, but it does not reach the level of a heated exchange between the contemnor and the judge that casts a cloud on the judge's impartiality. Compare Cooke v. United States, 267 U.S. 517 (1925).

Moreover, the insults to the judge made in response to the order to show cause do not warrant changing judges. "A judge cannot be driven out of a case." Mayberry v. Pennsylvania, 400 U.S. 455, 463 (1971). Requiring a judge to hand off contempt proceedings any time a party chose to insult him would give litigants an incentive to insult any judges who threatened contempt in hopes of getting one more favorable. Allowing parties to force a change of judge where summary contempt must be used to restore order and dignity to the court would result in additional delays when time is of the essence, greatly hampering the effectiveness of that power.

O'Dwyer's outburst required immediate action, he was given the required notice and a chance to respond, and the judge was not required to hand the contempt matter to another judge. Thus, the court properly used summary contempt to require O'Dwyer to apologize, pay a fine, and seek anger management.


When O'Dwyer defied the order of contempt, refusing to apologize, pay the fine, or get anger management counseling, the district court struck his answer, saying that this was based on the Rule 16 conference supplemented by O'Dwyer's later actions. If the contempt power was being used to punish O'Dwyer further, he should have faced new charges of contempt. Because there was no notice or hearing, and summary contempt was inapplicable, something besides the contempt power must justify striking the pleadings. Ocean-Oil finds support in the inherent power of the court to control parties and cases before it.

Footnote 8. The conduct at issue was O'Dwyer's refusal to obey the order. The refusal does not occur in the court's actual presence. He did not refuse during open court, but rather by written submission. His refusal to engage in certain out-of-court behaviors is not something the judge saw or heard, so the requirements for summary contempt are not satisfied.

Striking a pleading is within those inherent powers. Smith v. Legg (In re United Mkts. Int'l, Inc.), 24 F.3d 650, 654 (5th Cir. 1994). That extreme sanction of striking an answer, however, can be used only where there is bad faith or wilful abuse of the judicial process. Id. A party shows bad faith "by 'delaying or disrupting the litigation or hampering enforcement of a court order.'" Primus Auto. Fin. Servs. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997) (quoting Hutto v. Finney, 473 U.S. 678, 689 n.14 (1978)). A similar showing is required for bad faith here.

O'Dwyer hung up the phone during a scheduling conference after yelling "screw you" at the court. Refusing to finish scheduling is the kind of behavior that causes delays in proceedings. Although O'Dwyer protests that no delay resulted from his actions because he and opposing counsel had already said the month of October was okay for the pretrial and trial dates, that is insufficient. First, no dates had been set, and the court was asking for specific dates when O'Dwyer's requests to make objections began. O'Dwyer's only statement regarding his schedule was when, during a discussion of whether October worked, he said, "we're okay." The court and Ocean-Oil could not know, from that, whether any given dates they selected would work for O'Dwyer.

Eventually, the court set the date with Ocean-Oil alone after O'Dwyer hung up, determining that O'Dwyer had waived his right to contribute to date selection. The decision to proceed without O'Dwyer's input to avoid further delay in this already-delayed matter does not relieve O'Dwyer from sanctions for his refusal to complete scheduling. Furthermore, the disrespectful conduct during the conference and in repeated filings thereafter disrupted proceedings and caused further delays; the court was forced to take time from the case to restore order and maintain the dignity and authority of the court.

O'Dwyer also engaged in bad faith and wilful abuse of the judicial process by using filings and other court communications to attack the judge personally and repeatedly in ways unrelated to the matter the filings regard. O'Dwyer's response to the order to show cause called the judge incompetent, corrupt, said he never should have been confirmed, and declared him "worthy of the contempt of all United States citizens . . . and unworthy of the respect of educated, free men." O'Dwyer's response to the contempt order included racial slurs, that he is filing judicial misconduct against the judge in this case and his disciplinary case, and again says "screw you" to the district judge. Those comments, along with others made by O'Dwyer throughout those filings, do not address in any way the merits of the court document to which the purported response was made and have no place in filings to the court. ***

The above facts demonstrate an egregious pattern of conduct that disrupted the proceedings and evinced a complete lack of respect for the dignity and authority of the district court. Although the striking of pleadings is an extreme sanction, O'Dwyer engaged in bad faith and wilful abuse of the judicial process. Accordingly, the striking of his answer under the court's inherent powers was not an abuse of discretion.

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