Boswell v. Gumbaytay

Filing 150

MEMORANDUM OPINION AND ORDER finding that Mr. GumBayTay is guilty of civil contempt, it is ORDERED that Mr. GumBayTay is liable for civil contempt sanctions in the amount of $866.39 for actual losses and $7,660.40 for attorneys fees (for a total amount of $8,526.79), to be paid jointly to Ms. Boswell and Legal Services Alabama, Inc., at a monthly rate of $50.00 until such time that the sanction is paid in full; Mr. GumBayTay is DIRECTED to tender each installment to Legal Services Alabama, Inc., by money order or cash, on or before the fifth day of each month, beginning July 2009. Signed by Honorable William Keith Watkins on 6/1/09. (Attachments: # 1 Civil Appeals Checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION Y O L A N D A M. BOSWELL, P la in tif f , v. J A M A R L O K. GUMBAYTAY, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-CV-135-WKW[WO]

M E M O R A N D U M OPINION AND ORDER: D e fe n d a n t Jamarlo K. GumBayTay's Civil Contempt O n March 24, 2009, the court held an evidentiary hearing and heard oral argument on s e v e ra l pending motions (Order (Docs. # 127 & 132)), one of which was Plaintiff Yolanda M . Boswell's ("Boswell") Motion for Sanctions (Doc. # 22) against Defendant Jamarlo K. G u m B a yT a y ("GumBayTay") for civil contempt for violations of the court's Order Granting In ju n c tiv e Relief (Doc. # 10).1 After hearing testimony and evidence, the court orally granted M s . Boswell's motion and found Mr. GumBayTay guilty of civil contempt for violations of th e Order Granting Injunctive Relief. On March 27, 2009, the court indicated that an Order

In an Order entered on January 18, 2008, the court indicated that a contempt hearing pertaining to Mr. GumBayTay's alleged violations of the court's Order Granting Injunctive Relief (Doc. # 10) would be "held in conjunction with the jury trial of the matter, outside the presence of the jury, with the procedure to be set in the final pre-trial order." (Doc. # 51 ¶ 1); (see also Docs. # 22, 44 & 51.) For the convenience of the parties and after fair and ample notice to Mr. GumBayTay (Docs. # 127 & 132), this hearing instead was held in conjunction with the other matters addressed at March 24, 2009 evidentiary hearing. (Order (Doc. # 127).) In this opinion, the transcript from that hearing (Doc. # 142) is referred to as "H'rg Tr."

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memorializing the reasoning and setting the sanction would be forthcoming. (Doc. # 136, a t 1.) This is that Order. I. T h e Order Granting Injunctive Relief T h e Order Granting Injunctive Relief, entered on February 23, 2007, provides: 1 ) Defendants are restrained and enjoined from instituting eviction p ro c e e d in g s against the plaintiff, or from directly or indirectly threatening e v ic tio n proceedings against the plaintiff, until further order of the court; 2 ) Defendant Jamarlo K. Gumbaytay is restrained and enjoined from th re a te n in g , harassing, or communicating with Plaintiff or any of her im m e d ia te family who resides at [] North Gap Loop, Montgomery, Alabama u n til further order of this court; 3) Defendants are restrained and enjoined from in te rf e rin g with Plaintiff's possession of the premises located at [] North Gap L o o p , Montgomery, Alabama until further order of this court. (O rd e r (Doc. # 10).) Mr. GumBayTay's agent was served on February 24, 2007, with a copy o f the Order Granting Injunctive Relief. (Doc. # 12.) II. M r . GumBayTay's Willful Violations of the Order Granting Injunctive Relief A finding of civil contempt requires "clear and convincing" proof of a defendant's c o n te m p t. McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000). "`This clear and c o n v in c in g proof must also demonstrate that 1) the allegedly violated order was valid and la w f u l; 2) the order was clear, definite and unambiguous; and 3) the alleged violator had the a b ility to comply with the order.'" Id. (quoting Jordan v. Wilson, 851 F.2d 1290, 1292 n.2 (1 1 th Cir. 1988) (per curiam)).

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The court finds that, notwithstanding that Mr. GumBayTay had actual notice of the re s tra in ts imposed against him by the Order Granting Injunctive Relief,2 he committed m u ltip le violations of that order.3 The court further finds that the evidence is clear and c o n v in c in g that those violations were willful, intentional and made in bad faith.4 Specific e x a m p le s of Mr. GumBayTay's contemptuous conduct follow.5 First, the court finds that Mr. GumBayTay interfered with Ms. Boswell's possession o f the premises and constructively evicted6 Ms. Boswell by deliberately failing to make n e c e s s a ry repairs to her home, in violation of the Order Granting Injunctive Relief and as r e q u ire d by the lease agreement. His failure to make repairs also was tantamount to
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Mr. GumBayTay testified at the March 24, 2009 evidentiary hearing. At first, Mr. GumBayTay denied that he had any knowledge of the Complaint and the Order Granting Injunctive Relief when they were filed. That denial was a fabrication made under oath. Mr. GumBayTay recanted his denial, after being confronted with affirmative contrary evidence, including evidence that a copy of the Complaint was served upon him by certified mail, return receipt requested (Doc. # 11), and that a copy of the Order Granting Injunctive Relief was served upon him by certified mail, return receipt requested (Doc. # 12). No argument has been made that the Order Granting Injunctive Relief was unlawful, invalid, unclear, indefinite, or ambiguous, or that Mr. GumBayTay was unable to comply with the order. To the contrary, at the evidentiary hearing, Mr. GumBayTay admitted that the order was "lawful," "valid" and "unambiguous," and that he "had the ability to comply" with it. (H'rg Tr. 71.) At the time of the violations, Mr. GumBayTay was representing himself in this lawsuit, as his counsel, Alfred T. Newell IV, did not enter an appearance on Mr. GumBayTay's behalf until June 3, 2008. Mr. GumBayTay's conduct, however, is not excused by the fact that he proceeded without counsel until June 3, 2008. See, e.g., Baltimore v. Jim Burke Motors, Automotive, 300 F. App'x 703, 707 (11th Cir. 2008) (Litigants are not excused by virtue of their pro se status from "comply[ing] with the court's orders[.]"). Unless otherwise indicated, the evidence that forms the basis of the court's findings of fact and conclusions of law was received at the March 24, 2009 evidentiary hearing. Mr. GumBayTay's offending conduct did not cease until July 17, 2007, at the earliest, when the parties appeared before the court on Ms. Boswell's motion seeking enforcement of the preliminary injunction (Doc. # 22). At that hearing, the parties agreed to cancellation of Ms. Boswell's lease, thereby permitting her to move out of the North Gap Loop premises. (Doc. # 31.)
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harassment. To elaborate, prior to the entry of the Order Granting Injunctive Relief, Mr. G u m B a yT a y was reasonably diligent in his efforts to make repairs to Ms. Boswell's rental h o u s e , but after that order's entry he ignored her repeated and specific requests for repairs a n d made no repairs to the house during the remainder of her tenancy. As a result of Mr. GumBayTay's refusal to make repairs, Ms. Boswell's home was in disrepair. There was constant running water from one of the two toilets, spiking Ms. B o s w e ll's water bill for the month of January 2007.7 Eventually, the toilet water began o v e rf lo w in g , wetting the carpet. The sink in the same bathroom also leaked water and c o n trib u te d to the soaked carpet. The water leak in the sink was so severe that the cabinet b e lo w the sink "caved in." (H'rg Tr. 18.) At some point, a neighbor fixed the toilet from " c o n s ta n tly running," but it could not be used. (H'rg Tr. 39.) Ms. Boswell also had to turn o f f the water valves to the bathroom sink, making it unusable during her occupancy of the house. The kitchen sink also was stopped up, and the kitchen sink's faucet spewed water in a ll directions when turned on. Ms. Boswell purchased "liquid acid" (for approximately $ 2 0 .0 0 ), but that product did not unstop the sink. (H'rg Tr. 34.) Ultimately, Ms. Boswell

Exhibit 4, introduced at the evidentiary hearing, comprised the water meter readings during Ms. Boswell's occupancy of the North Gap Loop residence. According to that exhibit, Ms. Boswell was charged $73.58 in December 2006 for water usage, but was charged $164.97 in January 2007 for water usage. Ms. Boswell attributes $91.39 ­ which represents the difference between the December 2006 and January 2007 charges ­ to the malfunctioning toilet.

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paid her neighbor $50.00 to unstop the kitchen sink, but the sink still was virtually unusable g iv e n the faulty faucet. Either at the end of March or the beginning of April, 2007, Ms. Boswell tried to turn o n the air-conditioning system, but it did not work. Despite requests to have the airc o n d itio n in g system repaired (H'rg Tr. 26-27 & H'rg Ex. 3), the system was inoperable until M s . Boswell moved out in mid-July 2007. There were no ceiling fans in the home, and Ms. B o s w e ll had to endure inside temperatures reaching 90 degrees. To cope with the hot te m p e ra tu re s , she taped black plastic bags to all of the windows in an effort to block out the s u n 's heat, bought a window air-conditioning unit for $50.00 and borrowed another unit from a friend, and purchased three fans (costing approximately $20.00 each). The unbearable heat a ls o forced Ms. Boswell to find alternative living conditions for her four children for a p p ro x im a te ly six weeks. The children moved in with Ms. Boswell's grandmother whom M s . Boswell paid $100.00 a week to help with meals and other expenses. Second, on May 31, 2007, in violation of the express terms of the Order Granting In ju n c tiv e Relief enjoining him from evicting Ms. Boswell, Mr. GumBayTay left on Ms. B o s w e ll's doorstep a document, titled "10-Day Notice of Termination of Residential Lease." (H 'rg Tr. 41-43 & H'rg Ex. 5.) Mr. GumBayTay admitted that, when he delivered the notice o f termination to Ms. Boswell, he was "aware that the court had ordered [him] not to take any a c tio n to interfere with her possession of the premises." (H'rg Tr. 67.) Moreover, during this tim e period, Ms. Boswell saw that her rental unit was "posted" on the Montgomery Housing

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Authority's "Section 8 list." (H'rg Tr. 43; Boswell Aff. ¶ 26 (Ex. 1 to Doc. # 24).) When one o f Ms. Boswell's friends contacted Mr. GumBayTay about the listing, he told her that the c u rre n t "occupant was probably going to be moving out soon." (Boswell Aff. ¶ 26.) T h ird , Mr. GumBayTay further interfered with Ms. Boswell's possession of the North G a p Loop premises and also, at the very least, impliedly threatened eviction, when Ms. B o s w e ll called him pleading that he make the repairs. During that conversation, Mr. G u m B a yT a y told Ms. Boswell she probably should just "move out." (H'rg Tr. 31; see also H 'rg Tr. 32.) Fourth, after the entry of the Order Granting Injunctive Relief, Mr. GumBayTay was s e e n by Ms. Boswell and also by a neighbor driving by Ms. Boswell's house on several o c c a s io n s , notwithstanding that he managed no other rental properties on her street and that th e North Gap Loop house was on a circular, or dead-end, street. These drive-bys made Ms. B o s w e ll feel "nervous" because "[she] didn't know what his next move was going to be." (H'rg Tr. 46.) The court deems these drive-bys as further evidence of Mr. GumBayTay's h a ra s s in g and threatening conduct. Having found that the evidence overwhelmingly supports a finding that Mr. G u m B a yT a y willfully, intentionally, and in bad faith violated the Order Granting Injunctive R e lie f and that Mr. GumBayTay is guilty of civil contempt, the court turns to the monetary a m o u n t of the contempt sanction.

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III.

A c tu a l Losses " C iv il contempt sanctions may be imposed for either or both of two distinct purposes,

to coerce compliance with a court order, and to compensate the complainant for actual losses s u s ta in e d by him as the result of the defendants' contumacy." In re Chase & Sanborn Corp., 8 7 2 F.2d 397, 400-01 (11th Cir. 1989). "If the fine is compensatory, it is payable to the c o m p la in a n t and must be based on proof of the complainant's actual loss." Id. at 401. "If th e fine is coercive it is paid into the court registry, not to the complainant." Id. "Before im p o s in g either type of sanction, the court should also consider the financial resources of the d e f e n d a n t, and the resulting burden to the defendant." EEOC v. Guardian Pools, Inc., 828 F .2 d 1507, 1515 (11th Cir. 1987). M s . Boswell moved out of the residence on North Gap Loop in July 2007; therefore, th e re is no longer a need to coerce Mr. GumBayTay's compliance with the Order Granting In ju n c tiv e Relief. Rather, the purpose of civil contempt is compensatory, i.e., to compensate M s . Boswell for actual losses sustained as a consequence of Mr. GumBayTay's violations o f the Order Granting Injunctive Relief. A t the evidentiary hearing, counsel for Ms. Boswell argued that actual losses could in c lu d e an award for Ms. Boswell's "emotional distress" based upon her (Ms. Boswell's) te s tim o n y that, as a result of Mr. GumBayTay's conduct, Ms. Boswell was stressed, lost s le e p , and was depressed. (H'rg Tr. 77.) Counsel, however, submitted no authority to s u p p o rt that argument, either at the evidentiary hearing or in a later-filed Memorandum of

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Law (Doc. # 147). Independent research did not uncover any authority directly on point, but C h a s e & Sanborn is helpful in that it places the burden on the movant to provide "basic e v id e n tia ry facts to formulate a realistic sanction to which [a] defendant[] c[an] respond," 8 7 2 F.2d at 401; see also Leadsinger, Inc. v. Cole, No. 05 Civ. 5606, 2006 WL 2266312, a t *16 (S.D.N.Y. Aug. 4, 2006) (Damages for actual loss in civil contempt proceedings "must b e established by competent evidence and the amount must not be arrived at by mere s p e c u la tio n or conjecture." (citation and internal quotation marks omitted)). The court does n o t question Ms. Boswell's testimony about the distress she says Mr. GumBayTay caused h e r to endure, but, with that said, the court finds that Ms. Boswell has not met her burden of o f f e rin g basic evidentiary facts from which it can be ascertained that as a result of this d is tre s s , she suffered an actual loss, as contemplated by Chase & Sanborn. See 872 F.2d a t 400-01. The court finds, however, that Ms. Boswell has met her burden of providing c o m p e te n t evidence of $866.39 in actual losses directly caused by Mr. GumBayTay's c o n te m p tu o u s behavior. Broken down, the actual losses consist of the following out-ofp o c k e t expenses incurred by Ms. Boswell: $ 50.00 $ 15.00 w in d o w air-conditioning unit8 " liq u id acid" for kitchen sink 9

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(H'rg Tr. 23.) (H'rg Tr. 35.)

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$ 50.00 $ 60.00 $600.00

k itc h e n sink repair1 0 th re e fans 1 1 c o m p e n s a tio n to Ms. Boswell's g ra n d m o th e r who cared for Ms. B o s w e ll's four children for a p p ro x im a te ly six weeks 1 2 A d d itio n a l water usage reasonably a ttrib u te d to the malfunctioning toilet1 3

$ 91.39

A c c o r d i n g ly, the court will set the civil contempt fine in the amount of $866.39, re p re se n tin g Ms. Boswell's actual losses. Having considered Mr. GumBayTay's statements m a d e under oath as to his financial resources (H'rg Tr. 118-20), the court will permit Mr. G u m B a yT a y to pay the fine in installments. IV . A tto r n e y 's Fees A s a component of compensatory civil contempt, a court also may award "expenses re a s o n a b ly and necessarily incurred in the attempt to enforce compliance," Norman Bridge D r u g Co. v. Banner, 529 F.2d 822, 827 (5th Cir. 1976),1 4 as well as attorney's fees, Cook v.

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(H'rg Tr. 34.) (H'rg Tr. 24.) (H'rg Tr. 26 & 79.)

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Supra note 7; (see also Doc. # 147, at 8 (arguing that as a result of the failure of Mr. GumBayTay to repair the "constantly running toilet and . . . leaking sink," Ms. Boswell's water bill increased from "about $74 in one month to about $165 the following month, a cost to her of approximately $90").) In Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit.
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Ochsner Found. Hosp., 559 F.2d 270, 273 (5th Cir. 1977) (A court has "inherent authority . . . to award attorneys' fees in a civil contempt proceeding."). See also Abbott Labs. v. U n lim ite d Beverages, Inc., 218 F.3d 1238, 1242 (11th Cir. 2000) ("[A]ttorneys' fees in a c iv il contempt proceeding are limited to those reasonably and necessarily incurred in the a tte m p t to enforce compliance."); Jove Eng'g, Inc. v. I.R.S., 92 F.3d 1539, 1558 (11th Cir. 1 9 9 6 ) (One purpose of civil contempt sanctions is to "compensate the complainant for . . . e x p e n s e s it incurred because of the contemptuous act."). In setting the fee award, a district court also must consider the guidelines contained in Norman v. Housing Authority, 836 F.2d 1 2 9 2 , 1299 (11th Cir. 1988) (applying the lodestar method for calculating attorney's fees).15 A n Order was entered directing counsel for Ms. Boswell to file affidavits, billing re c o rd s and/or other competent evidence of all attorney's fees and expenses reasonably and n e c e s s a rily incurred as a result of Mr. GumBayTay's contemptuous conduct associated with h is violations of the Order Granting Injunctive Relief. (Doc. # 136.) Evidence of attorney's f e e s has been filed in the form of affidavits and detailed time statements.1 6 (Doc. # 138.) H a v in g carefully reviewed the legal tasks performed, the rates charged and the time e x p e n d e d in light of the Norman guidelines, the court concludes that the hourly rates are

In Norman, the former Fifth Circuit relied, in part, upon the oft-cited standard articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989). See Norman, 836 F.2d at 1298-99; see also Cook, 559 F.2d at 273 (instructing district court on remand to address the Johnson elements in awarding attorney's fees for civil contempt). Reimbursement for expenses for telephone, facsimile, copying and electronic research is not being sought. (Allison E. Neal Aff. ¶ 14; Emily J. Martin Aff. ¶ 16; John Pollock Aff. ¶ 16.)
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reasonable, that the expended hours are reasonable, as reduced, and that counsel for Ms. B o s w e ll necessarily incurred those fees as a result of Mr. GumBayTay's contemptuous c o n d u c t associated with his violations of the Order Granting Injunctive Relief. These re a s o n a b le fees were necessarily incurred by Allison E. Neal ($4,094.00),1 7 Emily J. Martin ($ 2 ,3 8 8 .0 0 ), and John Pollock ($1,178.40), for a total amount of $7,660.40, which will be a w a rd ed . V. C o n c lu s io n B a se d on the foregoing, and the court's finding that Mr. GumBayTay is guilty of civil c o n te m p t, it is ORDERED that Mr. GumBayTay is liable for civil contempt sanctions in the a m o u n t of $866.39 for actual losses and $7,660.40 for attorney's fees (for a total amount of $ 8 ,5 2 6 .7 9 ), to be paid jointly to Ms. Boswell and Legal Services Alabama, Inc., at a monthly ra te of $50.00 until such time that the sanction is paid in full. Mr. GumBayTay is

The time Ms. Neal billed for preparing for and participating in the March 24, 2009 evidentiary hearing has been reduced by half, given that other matters in addition to Mr. GumBayTay's civil contempt were addressed at that hearing. The reduction, however, takes into account that the civil contempt issue consumed substantially more time at the hearing than the other issues and required witness and other preparation that were not required on the other pending matters. The entries reduced by half are identified by date, but described where there are multiple entries on the same date: February 6, 2009; February 13, 2009; February 18, 2009; March 10, 2009; March 17, 2009; March 19, 2009; March 20, 2009 ("[p]repping for evidentiary hearing"); March 20, 2009 ("T/C with Ms. Boswell, prepping for evidentiary hearing"); March 22, 2009; March 23, 2009 ("[p]repping for evidentiary hearing"); March 23, 2009 ("T/C with Ms. Boswell to prep for evidentiary [h]earing"); March 24, 2009 ("[p]repping for evidentiary hearing"); and March 24, 2009 ("[e]videntiary hearing"). The amount claimed for one of the March 20, 2009's entries is denied in its entirety, because the entry indicates that the time was spent on preparing for the "[s]ummary judgment argument." (Doc. # 138-6.) The total amount of the reduction is $2,297.25; thus, Ms. Neal's fee request of $6,391.50 is reduced by $2,297.25 for a total of $4,094.00.

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DIRECTED to tender each installment to Legal Services Alabama, Inc., by money order or c a s h , on or before the fifth day of each month, beginning July 2009. DONE this 1st day of June, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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