United States District Court, E.D. Missouri, Eastern Division
IRON WORKERS ST. LOUIS DISTRICT COUNCIL ANNUITY TRUST, et al., Plaintiffs,
MILLER BUILDING GROUP, LLC, et al., Defendants.
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter came before the Court for hearing on Plaintiffs'
Motion for Contempt (Doc. No. 36), arising from Defendant
Miller Building Group, LLC's failure to comply with a
Court Order compelling Defendant to appear for a
post-judgment deposition and provide requested documents at
the offices of Plaintiffs' Counsel. (Doc. No. 35).
Plaintiffs appear by Counsel. Despite proper notice and
personal service on Defendant, Defendant does not appear.
have authority to award sanctions for contempt in ERISA
collection cases where the Defendant and/or its
representative fails to participate in discovery for purposes
of determining the amount of liability for unpaid fringe
benefit contributions. Greater St. Louis Const. Laborers
Welfare Fund v. Marshall Contracting, LLC, 2012 WL
4759772, at *1 (E.D. Mo. Oct. 5, 2012) (citing Greater
St. Louis Construction Laborers Welfare Fund v. Aura
Contracting, LLC, 2012 WL 2684864, at *1 (E.D. Mo. July
6, 2012)). Appropriate sanctions include monetary fines and
the issuance of a writ of body attachment for incarceration
until the contempt is purged. Id. (citing Fisher
v. Marubeni Cotton Corp., 526 F.2d 1338, 1340 (8th Cir.
1975) (fines); Painters Dist. Council No. 2 v. Paragon
Painting of Missouri, LLC, 2011 WL 3891870, *1 (E.D. Mo.
Sept. 1, 2011) (body attachment)). In addition, the issuance
of an order of contempt, pursuant to Federal Rule of Civil
Procedure 45(e) may include, pursuant to Federal Rule of
Civil Procedure 37(b), sanctions such as attorney's fees
and costs. Marshall Contracting, 2012 WL 4759772, at
*1. A party seeking civil contempt bears the burden of
proving by clear and convincing evidence that the alleged
contemnors violated a court order. Id. The
Court's contempt power also extends to non-parties who
have notice of the Court's order and the responsibility
to comply with it. Greater St. Louis Construction
Laborers Welfare Fund v. Hance Excavating, LLC, 2008 WL
544718, at *2 (E.D. Mo. Feb. 26, 2008) (citations omitted).
in this District have previously imposed compliance fines in
ERISA delinquency collection cases and ordered a defendant to
reimburse the plaintiffs for attorneys' fees incurred in
attempting to compel compliance with a Court order.
See, e.g., Marshall Contracting,
2012 WL 4759772, at *1 (and cases cited therein).
Incarceration has also been used to compel compliance with
Court orders in the context of ERISA delinquency actions.
See, e.g., Paragon Painting, 2011
WL 3891870, at *1; Greater St. Louis Construction
Laborers Welfare Fund v. Marvin Steel Enters., No.
4:96-CV-1073 ERW, at *1 (E.D. Mo. Mar. 21, 1997) (ordering
that a bench warrant issued for the arrest of the individual
defendants). In addition, Courts in this District have
imposed contempt sanctions on a corporation's officer who
failed to participate in post-judgment discovery in a ERISA
delinquency action. See, e.g.,
Carpenters' District Council of Greater St. Louis and
Vicinity v. DLR Opportunities, Inc., No. 4:07-CV-00061
CAS, at *2 (E.D. Mo. Feb. 22, 2008) (imposing a compliance
fine of $100 per day on the defendant's president).
to its Order of January 24, 2017 (Doc. No. 37), the Court
held a show cause hearing on the Motion for Contempt on
February 23, 2017. Prior to the hearing, Plaintiffs submitted
a Memorandum (Doc. No. 38) verifying personal service by a
private process server on Defendant of the Court's Show
Cause Order. Defendant did not appear at the hearing.
basis of the record before it, the Court finds Defendant in
contempt and will award sanctions against Defendant in the
form of a monetary compliance fine and attorneys' fees
and costs incurred in bringing the Motion for Contempt.
IT IS HEREBY ORDERED that Plaintiffs' Motion for Contempt
 is GRANTED and Defendant Miller Building Group, LLC, is
found in CONTEMPT of this Court. As sanctioned, Defendant is
liable for a fine of $200.00 per day for every day after this
date that Defendant fails to submit its records for
inspection or otherwise comply with this Court's Orders
and Plaintiffs' discovery requests. Plaintiffs'
attorney shall contact the Court if and when Defendant
produces its records for inspection.
FURTHER ORDERED that Plaintiffs' request for an award of
attorneys' fees and costs incurred in bringing their
Motion for Contempt is GRANTED. Counsel for Plaintiffs is
granted until Monday, March 6, 2017 to file an
affidavit of fees and costs for the Court's
FURTHER ORDERED that Plaintiffs' request that a writ of
body attachment be issued for Defendant Jimmie Miller is
denied without prejudice. The Court will reconsider the
request after plaintiffs notice another deposition and
defendant fails to appear.
FURTHER ORDERED that Plaintiffs shall effect service of this
Order on Defendant by whatever means they believe to be most
effective, and shall promptly file a certificate of such
service. Failure to show adequate evidence of prompt service