*1 This case is before the Court on Plaintiffs’ Motion for Contempt and Sanctions against Defendants Allied Solution Group, LLC, JJ Midwest Marketing LLC, JJ&C Marketing LLC, The Mid-West Transfer LLC, Midwest Transfers LLC, and Josh Ungaro (collectively, the “Ungaro Defendants”).

I. Background

On August 5, 2019, Plaintiffs motioned the Court to compel the production of documents from the Ungaro Defendants (Doc. 157). They did not respond and on September 18, 2019, the Court entered an Order compelling production of the requested information by September 25, 2019 (Doc. 163).

On October 8, 2019, Plaintiffs filed the pending Motion for Contempt and Sanctions in which they allege that the Ungaro Defendants violated the Order compelling production by failing to produce all information responsive to requests to produce 7, 12, 17, 19, and 37 (Doc. 166, at 3-7):

(Doc. 166-2 at 7-9).

Plaintiffs are asking the Court to impose a per diem fine on the Ungaro Defendants from September 26, 2019 until they comply with Order compelling production, and that the Court award Plaintiffs their attorney’s fees and costs (Id., at 10).

The Ungaro Defendants failed to respond to the motion for contempt and on October 31, 2019 Magistrate Judge Kelly entered a report and recommendation recommending:

*2 (Doc. 172, at 6).

The Ungaro Defendants objected to Judge Kelly’s Report and Recommendation (Doc. 172). On review, the district judge construed the objection as an untimely response to the contempt motion and referred that motion back to Judge Kelly for further consideration (Doc. 176 at 2). On February 4, 2020, I held a hearing on the contempt motion and now, with the benefit of counsels’ argument, submit this Report and Recommendation.

The Order on the motion to compel was docketed on September 19, 2019 (Doc. 163). On October 5, 2019, the lawyer representing the Ungaro Defendants filed a motion for protection in which he asked that no responses, filing deadlines or hearings be set between October 7 and approximately six weeks later because he would be in a criminal trial in the Northern District of Florida and would “have no access to my practice or office in Ocala in any appreciable way.” (Doc. 165, ¶ 3). The motion was denied on October 23, 2019 (Doc. 170), and the trial concluded on October 30, 2019 (Doc. 173, ¶ 6). Because he was in trial, the Ungaro Defendants’ lawyer says he was unaware of the contempt motion when it was filed (Id., ¶ 3), which is why no response was submitted.

Concerning the discovery at issue, the Ungaro Defendants have failed to produce their tax returns for 2017 and 2018 (Doc. 166 at 3). However, they are not objecting to Plaintiffs’ subpoena to their tax preparer to obtain the returns (Hearing). The Ungaro Defendants did provide Plaintiffs read-only access to their Consumer Relations Management database but that is not what the Court ordered (Id., at 3; Hearing). Plaintiffs are entitled to production of this information in native format delivered on a CD or DVD if necessary (Id., at 4). Defendants identified requested emails but then forwarded them to a dedicated inbox accessible by Plaintiffs (Id., at 4). The problem is that this procedure replaced the metadata Plaintiffs seek with new metadata created in the forwarding process (Id.). ¶ 12). Plaintiffs note that while the Ungaro Defendants denied possession or control of any documents related to websites and online advertising both websites alleged in the amended complaint (www.alliedsolutiongroup.com and www.themwt.com), are still active (Id., at 5). And, the Ungaro Defendants have not produced any responsive bank records in their possession or control (Id., at 6).

The Ungaro Defendants do not dispute Plaintiffs’ complaints about their production (Hearing). They also do not object to producing everything Plaintiffs have requested (Id.). But their lawyer suggests his clients may not have comprehended all that was required of them, including for example, the meaning of “native format” (Id.).

Plaintiffs also seek attorney’s fees totaling $2,367.50 which the Ungaro Defendants claim is excessive (Doc. 174, ¶ 7; Hearing).

At the hearing, all parties asked me to recommend that the district judge hold a hearing on the Motion for Contempt. Plaintiffs also asked that I recommend the same relief Judge Kelly had previously recommended (Id.). The Ungaro Defendants asked that Josh Ungaro be deposed regarding the contempt allegations and stated that there was no intent on their part to disobey the discovery Order (Id.).

II. Discussion

*3 As Judge Kelly previously noted, a magistrate judge’s limited contempt powers are set forth in 28 U.S.C. § 636(e). This is not a civil consent case or a misdemeanor case, and no act of contempt was committed in my presence. Therefore, this Report and Recommendation on the Motion for Contempt is issued.

The Ungaro Defendants’ failure to comply with the Order compelling production is an act of contempt, and it is recommended that they be held in contempt for this failure. Fed. R. Civ. P. 37(b)(2)(A)(vii) (if a party fails to obey a discovery order, then the court may treat the failure as a contempt of court, unless the order is “to submit to a physical or mental examination.”). Pursuant to 28 U.S.C. § 636(e)(6)(B)(iii), if a magistrate judge finds that certain acts constitute civil contempt, “the magistrate [judge] shall forthwith certify the facts to a district judge ...” who may issue an order to show cause upon any person whose behavior is brought into question under Section 636(e)(6)(B), and the district judge may hold an evidentiary hearing to determine whether that person should be adjudged in contempt by reason of the facts certified. Now, it is certified that the facts detailed above warrant an order to show cause for an evidentiary hearing to determine whether the Ungaro Defendants should be held in civil contempt.

Plaintiffs request a per diem fine for every day the Ungaro Defendants disobey the Order on the motion to compel (Doc. 166, at 8-10). They argue that they have been attempting to obtain this discovery since March 2019 and that the Ungaro Defendants are willfully obstructing discovery (Id., at 9). The requests to produce were served on March 1, 2019 (Doc. No. 166-2). The Ungaro Defendants failed to respond to the Motion to Compel and their first response to the Motion for Contempt was their objection to Judge Kelly’s Report and Recommendation.

The Order compelling production taxed attorney’s fees and costs against the Ungaro Defendants for failing to produce the requested information (Doc. 163, 3). The award of attorney’s fees and costs, and the possibility of a per diem fine being imposed against the Ungaro Defendants failed to motivate them to produce the requested information. Even Judge Kelly’s Report and Recommendation recommending that they be held in contempt has failed to motivate the Ungaro Defendants to produce the requested information. Considering that the requests to produce were served on the Ungaro Defendants almost one year ago, their refusal to fully produce the requested information has “impeded the progression of this action.” Johnson v. New Destiny Christian Ctr. Church, Inc., et al., No. 6:15-cv-1698-Orl-37GJK, Doc. No. 131 at 22 (M.D. Fla. Mar. 23, 2017) (finding the defendants in contempt for failing to produce discovery and imposing a per diem fine for every day the failure continued). Considering the range of sanctions that could be imposed, a per diem fine appears to be the least harmful sanction proportionate to the Ungaro Defendants’ behavior that is available to compel compliance with the Order. See In re Grand Jury Subpoena Duces Tecum, 91-02922, 955 F.2d 670, 673 (11th Cir. 1992) (coercive daily fine limited to $1,000 a day for seven days was a reasonably coercive sanction where it was “only imposed to avoid the harms of the [contemnor’s] continued recalcitrance and to induce immediate compliance with the district court’s ... order.”).

*4 Plaintiffs request for an award of attorney’s fees and costs is also warranted under Rule 37(d)(3).

III. Conclusion

It is RESPECTFULLY RECOMMENDED that the Motion for Contempt be GRANTED as follows:

1. That the Court issue an order to show cause to the Ungaro Defendants and hold an evidentiary hearing to determine whether they should be adjudged in contempt by reason of the facts certified above;

2. That if the Court finds the Ungaro Defendants in contempt, that the Court order them to pay Plaintiffs $2,367.50, in attorney’s fees and costs incurred in filing the Motion to Compel along with additional fees and costs incurred in connection with the Motion for Contempt;

4. That the Court order the Ungaro Defendants to comply with the Order on motion to compel discovery within seven days, including attesting under oath that documents do not exist, if such is the case; and

5. That the Court impose a per diem fine for every day of noncompliance bu the Ungaro Defendants.

IV. Notice to Parties

A party has fourteen days from this date to file written objections to the report and recommendation’s factual findings and legal conclusions. Failure to file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the report and recommendation. See 11th Cir. R. 3-1.

RECOMMENDED in Orlando, Florida, on February 10, 2020.