United States District Court, E.D. Missouri, Eastern Division
GREATER ST. LOUIS CONSTRUCTION LABORERS WELFARE FUND, et al., Plaintiffs,
J L BROWN CONTRACTING SERVICE, INC., Defendant.
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motion to hold
defendant J L Brown Contracting Service, Inc. and its alleged
principal officer, Jimmie Brown, in civil contempt for
failure to comply with the order compelling defendant to
submit to an accounting by production of records. Neither
defendant nor Brown has responded to the motion, and the time
permitted for doing so has expired.
bring this action to collect delinquent fringe benefit
contributions pursuant to Section 301 of the Labor Management
Relations Act of 1974 (LMRA), as amended, 29 U.S.C. §
185, and pursuant to Section 502 of the Employee Retirement
Income Security Act of 1974 (ERISA), as amended, 29 U.S.C.
§ 1132. Plaintiffs are four employee benefit plans (the
Pension, Welfare, Vacation, and Training funds), their
trustees (collectively, the plans), and Local Union Nos. 42
and 110 of the Laborers International Union of North America.
Defendant is an employer in an industry affecting commerce
within the meaning of the LMRA and ERISA. Plaintiffs allege
that defendant failed to make timely and full contributions
to the plans as required under the terms of two collective
filed the instant case on June 18, 2015. Service was achieved
on defendant on June 30, 2015. Because defendant failed to
timely answer, the Clerk of Court entered default against it
on August 17, 2015. Plaintiffs moved for an order to compel
an accounting, to determine the amount of their damages. On
October 6, 2015, the Court granted the motion. See
Fed. R. Civ. P. 55(b)(2)(A). Defendant was ordered to produce
for inspection by plaintiffs within thirty days all books,
ledgers, payroll records, cash disbursement ledgers, bank
statements, and other documents reflecting or pertaining to
all hours worked by and wages paid to its employees for the
period beginning March 1, 2014, through October 6, 2015.
January 11, 2016, having received no update on the status of
the accounting, the Court ordered plaintiffs to file a motion
for default judgment. However, on January 13, 2016,
plaintiffs informed the Court that defendant had filed a
voluntary petition for bankruptcy on October 13, 2015, and
that the petition was still under consideration.
Consequently, on January 14, 2016, the Court vacated the
order to file a motion for default judgment and, pursuant to
the automatic stay provision of 11 U.S.C. § 362(a)(1),
stayed this action pending completion of the bankruptcy case.
12, 2016, plaintiffs filed the instant motion. Among other
things, they averred that defendant's bankruptcy action
was dismissed on May 24, 2016. After confirming the
dismissal, the Court lifted the stay on July 13, 2016.
Following dissolution of the stay, defendant was required to
respond to the motion for contempt. As mentioned, it did not
respond. On August 16, 2016, the Court ordered the defendant
to show cause why it should not be held in contempt for
failing to comply with the Court's October 6, 2015, order
to compel an accounting. The defendants did not respond to
the Court's show cause order by the August 31, 2016,
termination of the stay renews defendant's obligation to
respond to the entry of default and to produce its records.
Its continued noncompliance means it is again appropriate to
order plaintiffs to file a motion for default judgment.
See Fed. R. Civ. P. 55; Weitz Co., LLC v.
MacKenzie House, LLC, 665 F.3d 970, 977 (8th Cir. 2012);
Murray v. Lene, 595 F.3d 868, 871 (8th Cir. 2010).
several considerations bear on whether to hold defendant in
contempt for noncompliance with the order to produce its
records. “Federal courts possess certain inherent
powers, including the power to punish for contempts, which
reaches both conduct before the court and that beyond the
court's confines.” Isaacson v. Manty, 721
F.3d 533, 538-39 (8th Cir. 2013) (quotation marks and
citation omitted). A court thus has the inherent power to
sanction litigants for noncompliance with its orders.
Id.; see E.D. Mo. L.R. 12.02. A district
court is “give[n] substantial deference” to
decide “whether sanctions are warranted because of its
familiarity with the case and counsel involved.”
Willhite v. Collins, 459 F.3d 866, 869 (8th Cir.
2006) (citation omitted).
party seeking civil contempt bears the initial burden of
proving, by clear and convincing evidence, that the alleged
contemnors violated a court order.” Chi. Truck
Drivers v. Bhd. Labor Leasing, 207 F.3d 500, 505 (8th
Cir. 2000) (citation omitted). Defendant had thirty days
following issuance of the October 6, 2015, order to produce
the required records. After six days passed with no response,
on the seventh day, October 13, defendant filed for
bankruptcy, staying operation of that order. Twenty-four days
thus remained for defendant to comply with the order.
Pursuant to the order, the stay expired automatically on May
24, 2016, when defendant's bankruptcy action was
dismissed, which the Court reiterated on July 13, 2016.
Defendant was therefore required to comply no later than
August 4, 2016. That deadline passed, and defendant still has
not complied and produced its records to plaintiffs.
and convincing evidence thus shows that defendant has failed
to comply. Where a party has not complied with a court order,
“the burden” shifts to the recalcitrant
individual “to show an inability to comply.”
Id. Defendant was afforded ample opportunity to
explain why it cannot comply with the order, but it has not
done so. Therefore, the Court finds it is appropriate to hold
defendant in civil contempt of court for its failure to
comply with the order to produce its records.
additional factors bear on what sanction to impose for that
contempt. “Civil contempt may be employed either to
coerce the defendant into compliance with a court order or to
compensate the complainant for losses sustained, or
both.” Id. (citation omitted). “[C]ivil
contempt sanctions, or those penalties designed to compel
future compliance with a court order, are considered to be
coercive and avoidable through obedience, and thus may be
imposed in an ordinary civil proceeding upon notice and an
opportunity to be heard.” Int'l Union, United
Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827
(1994). “Where a fine is not compensatory, it is civil
. . . if the contemnor is afforded an opportunity to purge,
” such as a “per diem fine imposed for each day a
contemnor fails to comply with an affirmative court
order.” Id. at 829 (citation omitted); see
Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632 (1988)
(holding that a fine “payable to the court is . . .
remedial when the defendant can avoid paying the fine simply
by performing the affirmative act required by the court's
order”). A court also may require a contemnor to bear a
movant's attorneys' fees and costs incurred to bring
a motion for contempt. See Jake's, Ltd., Inc. v. City
of Coates, 356 F.3d 896, 900 (8th Cir. 2004); see
also Chambers v. NASCO, Inc., 50 ...