United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter comes before the Court on plaintiffs' motion (#9)
seeking to hold defendant Petry Excavating, LLC. in civil
contempt for having failed to comply with this Court's
Order of December 19, 2018, in which defendant was ordered to
provide an accounting through the production of relevant
records from July 2016 to December 2018.
filed this action under the Employee Retirement Security Act
(ERISA), 29 U.S.C. §§ 1132 and 1145, and the Labor
Management Relations Act (LMRA), 29 U.S.C. § 185,
alleging defendant failed to accurately report its fringe
benefit obligations and failed to pay certain contributions
owed under the parties' collective bargaining agreement.
case was filed on August 1, 2018. Service was achieved on
September 3, 2018. Defendant failed to answer, and therefore
the Clerk of Court entered default judgment against it on
November 28, 2018. Plaintiffs then moved for an order
compelling an accounting so as to determine their damages.
That motion was granted by this Court on December 19, 2018,
and defendant was ordered to produce relevant documents
within ten (10) days. Having heard nothing from defendant,
plaintiffs filed a motion for civil contempt on March 29,
2019. That motion was served on defendant on April 6, 2019.
On April 30, 2019, this Court ordered defendant to show cause
by May 10, 2019, why it should not be held in contempt for
failing to comply with the Court's December 19 Order
compelling an accounting. Defendant did not respond.
party commits contempt when he violates a definite and
specific order of the court requiring him to perform or
refrain from performing a particular act or acts with
knowledge of the court's order.” In Re
Reed, 888 F.3d 930, 936 (8th Cir. 2018). This Court
ordered defendant to produce specific documents requested by
plaintiffs, to include “individual compensation
records, payroll registers, payroll journals, time-cards,
federal and state tax forms, W-2 forms and 1099 forms, state
quarterly tax returns, workers compensation reports, fringe
benefit records and reports, job cost records, general ledger
with cash disbursements and supporting documents, accounts
receivables, invoices, and check stubs for the period of July
2016 [to the date of the Order].” [#6, 8]. Defendant
was given notice that plaintiffs sought to hold it in civil
contempt for failure to comply with the December 19 Order,
and defendant was given an opportunity to respond.
Nevertheless, defendant chose not to respond.
juncture, the coercive power of civil contempt is necessary
to compel defendant's participation. See Turner v.
Rogers, 564 U.S. 431, 441 (2011) (“Civil contempt
… seeks [to] coerce the defendant to do what the court
had previously ordered him to do.”). This Court finds
that a per diem fine, imposed for each additional day
defendant refuses to comply, is appropriate to compel
defendant to comply moving forward. Defendant will be
assessed $200.00 per day of continued non-compliance;
however, the effective date of this sanction will be delayed
for seven days to allow defendant one final opportunity to
avoid contempt penalties. See Greater St. Louis Const.
Laborers Welfare Fund v. Town & Country Masonry and
Tuckpointing, LLC., 2013 WL 5436645 (E.D. Mo. Sept. 27,
2013) (imposing a $200.00 fine in an ERISA delinquency
action); see also Jake's, Ltd., Inc. v. City of
Coates, 356 F.3d 896, 903 (8th Cir. 2004) (approving a
per diem fine as “a classic form of civil contempt
remedy”). This fine can be avoided with defendant's
immediate compliance with this Court's December 19 Order.
Should the fine be incurred, it shall be paid to the Court.
See Chaganti & Assocs., P.C. v. Nowotny, 470
F.3d 1215, 1224 (8th Cir. 2006).
also seek their attorneys' fees “associated with
having to bring [its] motion for contempt.” District
courts have “inherent power to enforce compliance with
[their] lawful orders and mandates by awarding civil contempt
damages, including attorneys fees.” Fisher v.
Marubeni Cotton Corp., 526 F.2d 1338, 1340 (8th Cir.
1975). Because plaintiffs suffered attorneys' fees for
the recalcitrant behavior of defendant, this Court finds it
appropriate to award plaintiffs their reasonable
attorneys' fees spent compelling defendant's
participation in this suit. Plaintiffs shall file an
affidavit of fees and costs for this Court's further
IT IS HEREBY ORDERED that plaintiffs'
motion for civil contempt (#9) is GRANTED.
Defendant Petry Excavating, LLC. is hereby found in
CONTEMPT of this Court. As sanctioned,
defendant is liable for a fine of $200.00 per day for each
day after June 21, 2019, that it continues to refuse to
submit its records for inspection as directed by this
Court's December 19 Order. Plaintiffs attorney shall
promptly contact the Court if and when defendant produces its
records for inspection.
IS FURTHER ORDERED that plaintiffs' request for
an award of attorneys' fees and costs is
GRANTED. Plaintiffs' counsel is given
until June 24, 2019, to file an affidavit of fees and costs
for this Court's further consideration.
IS FURTHER ORDERED that plaintiffs shall effect
service of this Order and this Court's December 19 Order
(#8) 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