United States District Court, D. Colorado
KATHLEEN M. TAFOYA, Magistrate Judge.
This matter is before the court on Defendants' "Motion for Sanctions and Indirect Criminal Contempt" ("Mot.") [Doc. No. 115] filed July 23, 2014. Plaintiff filed its "Opposition to Motion for Sanctions and Indirect Criminal Contempt" ("Resp.") [Doc. No. 117] on August 6, 2014 and Defendants filed their Reply [Doc. No. 118] on August 18, 2014. Several months later, non-party Thomas Ryan filed a "Motion to Hold Gus Escamilla and Marc Kent in Contempt of Court" [Doc. No. 120, filed October 6, 2014] together with a 4-page Affidavit of Thomas F. Ryan [Doc. Nos. 119 and 120-1] and numerous exhibits. Plaintiff filed a "Renewed Opposition to Motion for Sanctions and Indirect Criminal Contempt" after concluding that Thomas F. Ryan had "joined" Defendants' original motion. [Doc. No. 123.]
Defendants and Thomas Ryan contend that Gus Escamilla, owner of Plaintiff Greenway Nutrients, has violated this Court's July 12, 2013 Order prohibiting him from having any direct or indirect communications with any of the defendants' disclosed witnesses, which include Thomas Ryan, his ex-wife Wendy Ryan and their daughter Jessica Campbell. (Minutes [Doc. No. 66].) At the time the Order was entered, the court had required the personal appearance at a motions hearing by Mr. and Mrs. Ryan, Steve Blackburn and Gus Escamilla, together with their attorneys, to discuss threatening and harassing emails Mr. Escamilla admittedly was sending to defendants and witnesses, including members of the Ryan family. An example of one of the representative emails which prompted the actions of this court at the beginning of the case was sent by Mr. Escamilla to email@example.com on June 11, 2013 at 10:22 am, read
DO YOU "SEE" THESE FUCKEN IDIOTS??? YOUR ASSES ARE NEXT!!' ONLY THIS IS NOT A CIVIL MATTER ANY LONGER!!!! IT'S CRIMINAL!!!! BTW YOUR STUPID ASSES SHOULD READ THE THEFT OF TRADE SECRETS ACT OF 2012, THE ECONOMIC ESPIONAGE ACT OF 1996, WIRE FRAUD, MAIL FRAUD AND ON AND ON!!! JESSIE CAMPBELL AKA JESSIE RYAN SHOULD GET TO KNOW THESE LAWS EXCEPTIONALLY WELL!! !! I WONDER HOW LONG OR HOW MUCH PRESSURE SHE CAN TAKE!!!! IM ABOUT TO FIND OUT!!!! SHE TOM AND ALL YOU MOTHER FUCKEN IDIOTS ARE GUILTY AS FUCK!!!!! YOU STUPID STUPID FOOLS!!!! IM GOING TO NAIL YOUR STUPID INGRATE ASSES !!!! YOUR ALL FUCKED!!!! TOM YOUR A FOOL A STUPID STUPID PATHETIC FOOL!!! !!
("Motion for Sanctions and Protective Order" [Doc. No. 45] at 4.) The Ryans appeared as ordered, telling this court they were afraid of Mr. Escamilla and felt that he might harm them. Jessica Ryan, mentioned in the email noted by the court, appears to have no connection whatsoever to the allegations of this case other than being the daughter of Thomas Ryan who once represented Mr. Escamilla as an attorney.
Mr. Escamilla also personally appeared and admitted sending the emails which were presented to the court. Mr. Escamilla explained his personal frustration experienced as a result of his dealings with the persons involved in this litigation. Ultimately Mr. Escamilla apologized to the court and stated that he would discontinue any further communications with the Ryans or any other witness or defendant. The court vehemently reprimanded Mr. Escamilla and issued the order that he cease and desist all contact, direct or indirect, with witnesses in the case.
This court heard nothing further about Mr. Escamilla's alleged behavior until the instant motion was filed a year later. Defendants and Mr. Ryan now complain that Mr. Escamilla is using the internet to attack them, alleging that he has posted perverted and insulting items on internet blog sites about Defendants David Selakovic and Steve Blackburn and attorney Charles Wender. Further, the defendants claim that Gus Escamilla has illegally usurped David Selakovic's identity, portraying himself as David Selakovic and sending false emails to Selakovic's business associates in order to harass and intimidate Mr. Selakovic. Defendants also allege that Mr. Escamilla has filed baseless complaints with the Florida Bar attempting to jeopardize the law licenses of Mr. Wender and Mr. Ryan.
Plaintiff, while not specifically denying involvement by Mr. Escamilla in the objectionable behavior, states, "there has been no showing of proof or other evidence to connect Mr. Escamilla to the challenged statements, posts, or emails." (Resp. at 2.) In fact, Plaintiff alleges that one of the posts containing the superimposed images of certain defendants in this case actually predated the dispute between the parties which is at issue. Counsel for Plaintiff infers from this that someone other than Mr. Escamilla may have had a dispute with the defendants and has posted the offending internet blogs. (Id. )
"There are two types of contempt: civil and criminal contempt." Ernest v. Lockheed Martin Corp., Civil Action No. 07-cv-02038-WYD-KLM, 2009 WL 1698505 at *3 (D. Colo. June 16, 2009). "Federal Rule of Criminal Procedure 42 applies to criminal contempt. There is no similar procedural rule for civil contempt." Home Design Servs., Inc. v. B & B Custom Homes, LLC, Civil Action No. 06-cv-00249-WYD-GJR, 2008 WL 927683 at *4 (D. Colo. Apr. 3, 2008). Contempt power is found in 18 U.S.C. § 401, which states,
A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, ...