Ameriprise Financial Services, Inc. v. Lawton

Filing 34

OPINION AND ORDER denying 16 Motion for civil contempt. Signed by Judge John E. Steele on 12/21/2011. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
AMERIPRISE FINANCIAL SERVICES, INC.,
Plaintiff,
vs.

Case No.

2:11-cv-573-FtM-29SPC

SHENANDOAH LAWTON,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Civil Contempt (Doc. #16) filed on October 31, 2011.

Defendant

filed a Response (Doc. #25) and Affidavits (Doc. #26), and the
Court conducted an evidentiary hearing on December 19, 2011.

For

the reasons set forth below, the motion is denied.
On

October

19,

2011,

the

Court

entered

an

Agreed

Order

Granting Plaintiff’s Motion for Preliminary Injunction (Doc. #14).
Among other things, the Agreed Order enjoined defendant Shenandoah
Lawton (Lawton) from soliciting Ameriprise Financial Services,
Inc.’s (Ameriprise) clients or retaining any Ameriprise records.
Defendant Lawton acknowledges receipt and understanding of the
Agreed Order.

Ameriprise seeks a finding of contempt, alleging

Lawton has failed to return its client records and has solicited
the business of Dr. Joan Craft after October 19, 2011.
It is well established that an injunction is enforced through
a district court’s contempt power.

Faught v. Am. Home Shield

Corp., 660 F.3d 1289, 1293 (11th Cir. 2011).

A finding of civil

contempt must be supported by clear and convincing evidence that
(1) the allegedly violated order was valid and lawful; (2) the
order was clear and unambiguous; (3) the alleged violator had the
ability to comply with the order; and (4) the order was violated.
FTC v. Leshin, 618 F.3d 1221, 1232 (11th Cir. 2010); Jove Eng’g,
Inc. v. IRS 92 F.3d 1539, 1545 (11th Cir. 1996).
convincing

evidence

standard

is

more

The clear and

exacting

than

the

preponderance of the evidence standard, but does not require proof
beyond a reasonable doubt.

Jove Eng’g, 92 F.3d at 1545.

The

parties do not dispute the first three requirements, but focus
solely on the fourth.
The only evidence that Lawton solicited an Ameriprise client
after October 19, 2011 was the testimony of Dr. Joan Craft (Dr.
Craft). Dr. Craft testified that she initially decided to move her
accounts to AXA Advisors, LLC (AXA) with Lawton, but then changed
her mind.

On October 27, 2011, Dr. Craft left a voice message

telling Lawton of her decision to return to Ameriprise, stating
Lawton could call her about the matter. On direct examination, Dr.
Craft testified that Lawton did call her, they discussed the
“surrender charges”, and Lawton stated she still wanted Dr. Craft
to come with her to AXA as a client.

On cross examination, Dr.

Craft testified that Lawton did not call her after she left the
voice message.

On re-direct examination, Dr. Craft testified

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Lawton could have called her after she left the voice message.1
The Court finds that the testimony of Dr. Craft fails to satisfy
the

clear

and

convincing

standard

as

to

the

content

of

the

conversation and the specific continued solicitation during that
conversation.

The Court finds no other evidence of solicitation

of Ameriprise clients after October 19, 2011. Therefore, the Court
finds no basis for a contempt finding based upon solicitation of
Ameriprise clients.
The second argument for a contempt finding is that Lawton has
retained Ameriprise records, specifically client files, after the
October

19,

2001

injunction.

Proof

of

this

allegation

is

circumstantial, which can of course rise to a level of clear and
convincing evidence.

Brasseler, U.S.A. I., L.P. v. Stryker Sales

Corp., 267 F.3d 1370, 1378-79 (Fed. Cir. 2001).

In this case,

however, the Court finds that the testimony and exhibits do not
establish clear and convincing evidence that Lawton continues to
retain Ameriprise records after October 19, 2011, other than two
files which were returned through counsel. No one testified to any
direct evidence that Lawton possessed such records after October
19, 2011.

Lawton was seen taking home files when she worked for

Ameriprise, a fact she readily concedes. While Dr. Craft testified
to seeing Lawton scan and shred documents on September 30, 2011, in

1

Lawton testified that she did call Dr. Craft, but said
nothing which can be construed as solicitation of her business.
-3-

her home, the more convincing evidence was that Lawton was not at
home on that evening and, in any event, never had a shredder at
home and never scanned and shredded documents at home in that time
frame.

The Court finds that Ameriprise has not shown by clear and

convincing evidence that Lawton has its documents.
Accordingly, it is now
ORDERED:
Plaintiff’s Motion for Civil Contempt (Doc. #16) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2011.

Copies:
Counsel of record

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21st

day of