United States District Court, E.D. Missouri, Eastern Division
GREATER ST. LOUIS CONSTRUCTION LABORERS WELFARE FUND, et al., Plaintiffs,
ZOIE LLC, d/b/a DANA HOWARD CONSTRUCTION, Defendant.
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
action under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1132, to collect
delinquent fringe benefit contributions, is before the Court
on Plaintiffs' motion (ECF No. 10) for a finding of civil
contempt and entry of monetary sanctions against Defendant
Zoie LLC, d/b/a Dana Howard Construction, for failure to
comply with the Court's March 13, 2017, Memorandum and
Order (ECF No. 8) to provide documents needed to perform an
audit. The Court previously granted Plaintiffs' motion to
compel the audit in order to determine the amount of
Defendant's liability following the entry of default
against Defendant on February 22, 2017. Plaintiffs request
the imposition of a fine of $200 a day for each day of
noncompliance, and the attorney's fees and costs incurred
by Plaintiffs in bringing the motion for contempt.
1, 2017, the Court ordered Defendant to show cause on or
before May 31, 2017, why Defendant should not be held in
civil contempt and why the sanctions requested by Plaintiffs
should not be imposed against it for failure to comply with
the Court's Order of March 13, 2017, compelling an audit.
Despite proper notice and personal service upon
Defendant's agent authorized to receive service of
process,  Defendant has not responded to
Plaintiffs' motion or to the Court's Order to Show
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. See Chicago Truck Drivers v. Bhd.
Labor Leasing, 207 F.3d 500, 504-05 (8th Cir. 2000).
Appropriate sanctions include monetary fines and the issuance
of a writ of body attachment for incarceration until the
contempt is purged. See, e.g., 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, No. 4:08CV01501 ERW, 2011 WL
3891870, at*1 (E.D. Mo. Sept. 1, 2011) (body attachment). In
addition, the issuance of an order of contempt may include,
pursuant to Federal Rule of Civil Procedure 37(b), sanctions
such as attorney's fees and costs. A party seeking civil
contempt bears the burden of proving by clear and convincing
evidence that the alleged contemnors violated a court order.
Chicago Truck Drivers, 207 F.3d at 504-05.
in this district have previously imposed compliance fines in
ERISA delinquency collection cases and have ordered a
defendant to reimburse the plaintiffs for attorney's fees
incurred in attempting to compel compliance with a court
order. See, e.g., Greater St. Louis Constr.
Laborers Welfare Fund v. Marshall Contracting, LLC, No.
4:12CV00524 JAR, 2012 WL 4759772, at *2 (E.D. Mo. Oct. 5,
2012) (ordering the defendant in contempt to pay $200 per day
for every day of non-compliance, as well as the
plaintiffs' attorney's fees and costs of their
motions for a default order of accounting and for contempt).
basis of the record before it, the Court finds that
Plaintiffs have proven by clear and convincing evidence that
Defendant, despite notice of Plaintiffs' complaint and
motions and of this Court's Orders, has failed to respond
to or comply with those Orders. Therefore, the Court finds
Defendant in contempt and will award sanctions against
Defendant in the form of a compliance fine and attorney's
fees and costs for the filing of the motion for contempt.
their memorandum in support of their motion for contempt,
Plaintiffs state that, should Defendant continue to fail to
comply, Plaintiffs “will also request that a writ of
body attachment be issued for [D]efendant's principal
officer, Dana Howard.” ECF No. 11 at 2. Although
Plaintiffs have provided proof that they personally served
Mr. Howard with copies of the Court's Orders (ECF No.
13), as the Court has previously advised Plaintiffs, before
imposing any sanctions against Mr. Howard, the Court would
require Plaintiffs to provide proof, by affidavit or
otherwise, that Mr. Howard is Defendant's principal
officer with responsibility to comply with the Court's
Orders. See Chicago Truck Drivers, 207 F.3d at 507
(holding that the court's civil contempt power, which
includes the power to impose a fine or incarceration,
“extends to non-parties who have notice of the
court's order and the responsibility to comply with
IT IS HEREBY ORDERED that Plaintiffs' motion for contempt
is GRANTED. ECF No. 10. Defendant Zoie LLC, d/b/a Dana Howard
Construction is found in CONTEMPT of this Court. As
sanctioned, Defendant is liable for a fine of $200 per day,
beginning three days after the date on which it receives
service of this Memorandum and Order, for every day that it
fails to submit its records for inspection or otherwise
comply with this Court's Orders and Plaintiffs'
discovery requests. Plaintiffs shall file a notice promptly
advising the Court if and when Defendant produces its records
FURTHER ORDERED that Plaintiffs' request for an award of
attorney's fees and costs of its motion for contempt is
GRANTED. Plaintiffs shall submit a supplemental memorandum
and affidavit in support of its request for such fees and
costs within 7 days of the date of this Memorandum and Order.
FURTHER ORDERED that to the extent Plaintiffs wish to seek
sanctions against any officer of Defendant, Plaintiffs must
file an appropriate motion and memorandum in support thereof
clearly identifying the name of the officer and the address
at which he or she may be personally served, and Plaintiffs
must attach proof, by affidavit or otherwise, that the
officer is Defendant's principal officer with
responsibility to comply with the Court's Orders and has
personally received notice of the Court's Orders.
FURTHER ORDERED that Plaintiffs shall effect service of this
Memorandum and Order on Defendant by whatever means they
believe to be most effective, and shall promptly file a
certificate specifying the date and manner of such service.
Failure to show adequate evidence of prompt service may
result in the continuation or cancellation of the sanctions
 On May 16, 2017, Plaintiffs submitted
an affidavit (ECF No. 13) verifying personal service by
private process server on Defendant of the Court's March
13, 2017, Memorandum and Order compelling an audit, and its