Part XXXivV Contempt Motions Continued Contempt Motions Continued

• Jurisdiction: New York

Part XXXIV — Contempt
Motions Continued

In the last issue, the Legal Writer discussed criminal-contempt motions. In this issue and the next, we’ll discuss civil-contempt motions.

Civil Contempt

A court may invoke its civil-contempt powers “only at the instance of an aggrieved civil litigant.”¹⁴⁷³ A court has the authority to act on behalf of public justice to exercise its criminal-contempt power. But a court has no authority to exercise its civil-contempt power, sua sponte, “by standing, without invitation, in the shoes of one of the privately interested litigants appearing before it.”¹⁴⁷⁴

Judiciary Law § 753 gives a court the power to punish for civil contempt “misconduct where a right or remedy of a party to a civil action or a special proceeding pending in the court may be defeated, impeded, or prejudiced.”¹⁴⁷⁵

Civil contempt is meant to vindicate the rights of a party — the aggrieved party — to the litigation.¹⁴⁷⁶ A contemnor must compensate that party for losing benefits or interfering with the benefits of the court’s mandate.¹⁴⁷⁷

Moving for Civil Contempt

Your application to punish for civil contempt must be in writing.¹⁴⁷⁸

Under Judiciary Law § 756, you may move for civil contempt against a party either by notice of motion or by order to show cause.¹⁴⁷⁹ Your notice of motion “is returnable before the court or judge authorized to punish for the offense.”¹⁴⁸⁰ Serve your papers not less than 10 days and not more than 30 days before the return date.¹⁴⁸¹ If you move by order to show cause, the accused is required “to show cause before [the court,] at a time and place therein specified, why the accused should not be punished for the alleged offense.”¹⁴⁸² The court or the court clerk will set the return date of your order to show cause.

Most practitioners move by order to show cause because it’s a faster way to obtain civil-contempt relief than by notice of motion.

Your motion or order to show cause must state facts that allege what the alleged contemnor did or did not do in terms of what constitutes the contempt — notice — and give the contemnor reasonable time to establish a defense — opportunity to be heard.¹⁴⁸³

Judiciary Law § 761 provides that a contempt motion “shall be served” on the party unless a court orders service on the party’s attorney.¹⁴⁸⁴ Personal service on the party isn’t required for civil contempt.¹⁴⁸⁵ Service by regular mail is appropriate.¹⁴⁸⁶ If you move by order to show cause, make sure to follow the judge’s service instructions.

If the alleged contemnor wasn’t a party to the action or proceeding from which the contempt arises, you must commence a special proceeding to punish for contempt.¹⁴⁸⁷ Commencing a special proceeding is also appropriate if you’re seeking to punish for a contempt that arises from a nonjudicial proceeding, such as a proceeding before an administrative agency.¹⁴⁸⁸ Personally serve your contempt papers on the nonparty.¹⁴⁸⁹

Your contempt papers should include the caption of the action or proceeding “out of which the contempt arises.”¹⁴⁹⁰

Your civil-contempt motion must contain the following on its face, in at least eight-point boldface type in capital letters: WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT.¹⁴⁹¹ Your moving papers will be defective if you’re missing this warning. An accused who doesn’t object to the notice waives its right to do so.¹⁴⁹²

You must specify in your moving papers that you’re moving for civil contempt. Practitioners will often write — in bold, capital letters — that they’re seeking to punish for “CIVIL CONTEMPT” when they request that remedy. (If you don’t specify that you’re seeking criminal contempt, the court will assume that you’re seeking civil contempt. If you don’t specify which contempt you’re seeking, the court will similarly assume that you’re seeking civil contempt.)

Courts have expressed the burden of proof for civil contempt as one of “reasonable certainty”: The movant must demonstrate with reasonable certainty that the alleged contemnor disobeyed the court’s order.¹⁴⁹³ But courts have also used the clear-and-convincing burden of proof for contempt.¹⁴⁹⁴ (This is different from criminal contempt, for which the burden of proof is beyond a reasonable doubt.) The reasonable-certainty standard requires “a quantum of proof . . . greater than a preponderance of evidence but less than proof beyond a reasonable doubt . . . . akin to the clear and convincing evidence standard.”¹⁴⁹⁵

To prevail on a civil-contempt motion, the moving party must prove that the contemnor violated, or disobeyed, a clear and unequivocal court order and that the contemnor’s disobedience defeated, impaired, impeded, or prejudiced the moving party.¹⁴⁹⁶

Violated (or Disobeyed)

The moving party seeking civil contempt must show that the contemnor violated or disobeyed the court’s order: “The mere act of disobedience, regardless of its motive, is sufficient to sustain a finding of civil contempt if such disobedience defeats, impairs, impedes or prejudices the right of a party.”¹⁴⁹⁷ The moving party need not prove the contemnor’s willfulness — intent — in violating the order.¹⁴⁹⁸ The court will not inquire into the contemnor’s motives or whether the contemnor’s actions were deliberate. (This is different from criminal contempt, in which the moving party, to prevail, must prove that the contemnor willfully — intentionally — violated the court order.)

Clear and Unequivocal Mandate

The court mandate (or order) must be clear, explicit, precise, and unequivocal.¹⁴⁹⁹ The court doesn’t need to warn you explicitly of the consequences of disobeying its order.¹⁵⁰⁰ The court order doesn’t even need to include the word “ordered.”¹⁵⁰¹ But the order must include “commands capable of enforcement.”¹⁵⁰² The order may not be “merely expressions of abstract conclusions or principles of law.”¹⁵⁰³

If a court order is ambiguous, make sure you ask the court to clarify its order before moving for contempt.¹⁵⁰⁴

Knowing About the Court Order

The moving party must prove that the alleged contemnor — who violated the court order — knew about the order. An order needn’t be personally served on you before a court may punish you for civil contempt for violating the order.¹⁵⁰⁵ An order is “served” when you, the recipient, know that the order exists and what its terms are. Hearing the order in open court is just as binding as a signed, written order you’ve received from the court.¹⁵⁰⁶ An oral order in open court is “an order served upon all those assembled to whom it is directed.”¹⁵⁰⁷ If your attorney communicates the contents of the order to you, you’re presumed to know about it.¹⁵⁰⁸

Defeated, Impaired, Impeded, or Prejudiced the Moving Party

In your moving papers, explain how the alleged contemnor defeated, impaired, impeded, or prejudiced your rights when it violated the court order. Most practitioners explain in their moving papers the prejudice component to civil contempt — how the contemnor prejudiced their clients’ rights. (For criminal contempt, the moving party needn’t prove that the contemnor’s conduct prejudiced the moving party.)

Opposing Civil Contempt

To oppose your adversary’s civil-contempt moving papers, you may submit opposition papers. If you submit opposition papers, your adversary may submit reply papers.

Service

In opposing civil contempt, you may contest service of your adversary’s moving papers. If your adversary didn’t serve the moving papers by the date the court directed your adversary to serve the order to show cause, oppose the contempt motion on the basis of improper service. Also, oppose the contempt motion on the basis of improper service if the court required your adversary to serve the moving papers in person, by certified mail return-receipt requested, by first-class mail (with or without a certificate of mailing), or by some other method and if your adversary failed to comply.

If you don’t object to the service, you waive improper service.¹⁵⁰⁹ You waive improper service if you’re “seeking an adjournment without reservation of rights, opposing the [civil contempt] application on the merits, or seeking . . . affirmative relief.”¹⁵¹⁰

You Complied, Are Unable to Comply, or Will Comply

In your opposition papers, tell the court that (1) you complied with the court’s lawful order in all respects; (2) you’re unable to comply with the order; or (3) you’ll comply with the order but need more time to do so.

If you show you’ve complied with the order in all respects, the court ought not find you in civil contempt.

In the alternative, you...