All American Farms, Inc. v. The Lanes Consulting Firm, LLC et al

Filing 39

ORDER HOLDING DEFENDANTS IN CONTEMPT OF COURT. See Order for details. Signed by Judge James I. Cohn on 11/12/2014. (sry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-80730-CIV-COHN/SELTZER
ALL AMERICAN FARMS, INC.,
Plaintiff,
v.
THE LANES CONSULTING
FIRM, LLC, d/b/a Rocco’s
Fruit and Produce, and
JACOB HOWES,
Defendants.
_____________________________/
ORDER HOLDING DEFENDANTS IN CONTEMPT OF COURT
THIS CAUSE is before the Court following its November 10, 2014, Contempt
Hearing and upon the Declaration of Robert John McCaffery, Jr., in Support of Plaintiff’s
Motion for Enforcement of Court’s Order [DE 38] (“Declaration”). The Court has
carefully reviewed the Declaration and the record in this case. Also, the Court heard
arguments from Plaintiff’s counsel at the Contempt Hearing. See DE 37 (Hr’g Mins.).
On October 23, 2014, the Court issued an Order Setting Show Cause Hearing
on Contempt of Court [DE 35] (“Hearing Order”). In the Hearing Order, the Court set a
Contempt Hearing requiring Defendants to show cause why they had not complied with
the earlier Stipulated Order and Consent Judgment [DE 32] (“Order and Judgment”)
and why the Court should not impose coercive contempt sanctions against Defendants.
See DE 35 at 2, ¶ 2. The Court further directed that, “[r]egardless of whether counsel
appears for Defendants at the show-cause hearing, Defendant Jacob Howes shall
attend the hearing in person.” Id. at 2, ¶ 2. More, the Court warned Defendants that

if they “do not appear at the scheduled hearing, the Court will impose contempt
sanctions against them by default.” Id. at 2, ¶ 5. Although Plaintiff served
Defendants with the Hearing Order, see DE 36, Defendants did not appear at the
Contempt Hearing, nor did they otherwise respond to the Hearing Order.
Based on the facts presented, Plaintiff has shown by clear and convincing
evidence that Defendants have violated the Order and Judgment. See United States v.
Roberts, 858 F.2d 698, 700 (11th Cir. 1988) (per curiam). The Order and Judgment
required Defendants to make a series of weekly payments to Plaintiff, see DE 32 at 2-3,
satisfying their obligations under the Perishable Agricultural Commodities Act (“PACA”).
See 7 U.S.C. § 499b(4); id. § 499e(a), (c)(2). As of this date, however, Defendants
have made only two $3,000.00 payments, and nine other such payments are past due.
Nor have Defendants produced any evidence that they cannot comply with the Order
and Judgment. See Roberts, 858 F.2d at 701 (citing United States v. Rylander,
460 U.S. 752, 755 (1983)). Indeed, according to Plaintiff, Defendants have admitted
being able to pay the outstanding amounts but have refused to do so. See DE 33 at 3.
The Court will therefore hold Defendants in civil contempt.
As a coercive sanction for their contempt, the Court will fine Defendants $500.00
per day until they comply fully with the Order and Judgment. The Court concludes that
the amount of this fine is necessary, but not excessive, to ensure Defendants’
compliance with the Order and Judgment. See Jove Eng’g, Inc. v. IRS, 92 F.3d 1539,
1558 (11th Cir. 1996). In addition, the Court will award Plaintiff the reasonable
attorney’s fees and costs it has incurred in seeking to enforce the Order and Judgment.
See Rickard v. Auto Publisher, Inc., 735 F.2d 450, 458 (11th Cir. 1984).

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Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
1.

Defendants The Lanes Consulting Firm, LLC, d/b/a Rocco’s Fruit and Produce,
and Jacob Howes are HELD IN CONTEMPT of this Court.

2.

Defendants are found to be in violation of their fiduciary duties under the PACA
trust, for failure to pay promptly, per the terms of the Order and Judgment.
See DE 32 at 2, ¶ 2.

3.

Defendants shall pay to the Court a FINE of $500.00 per day, starting on the
date of this Order and continuing until Defendants comply fully with the
Stipulated Order and Consent Judgment [DE 32].

4.

Attorney’s fees and costs totaling $2,992.25 are awarded to Plaintiff and are
added to the $52,476.22 amount Defendants still owe under the Order and
Judgment [DE 32 at 2-3, ¶ 6], resulting in a new outstanding total of $55,468.47.

5.

For Defendants to comply fully with the Order and Judgment, as well as this
Order, they must pay into the trust account of Plaintiff’s attorney, through
electronic transfer or certified bank check, all of the following:
a.

the outstanding amount due as of November 11, 2014, which is
$27,000.00;

b.

the $2,992.25 in fees and costs awarded herein; and

c.

any additional weekly payments of $3,000.00 that become due under the
Order and Judgment.

This total sum is the “amount due.”
6.

Until Defendants are in full compliance with this Order, they shall not make any
payments to any non-PACA entity.
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7.

Unless Defendants are in full compliance with this Order, within five (5) days of
service of this Order, Defendants shall serve upon Plaintiff’s attorney a verified
accounting of all of Defendants’ assets, including copies of their most recent
unredacted bank statements for the last six months.

8.

Defendants are notified that Plaintiff retains the right to move this Court for
additional sanctions, including coercive imprisonment of Jacob Howes, to
make Defendants obey the Order and Judgment. Relevant to any such motion
is Defendants’ repeated disregard of this Court’s Orders, including the prior
Order Granting Motion for Preliminary Injunction [DE 16]. See DE 27 (Order
Setting Contempt Hr’g).

9.

Plaintiff’s counsel shall immediately serve a copy of this Order on Defendants
and file proof of service with the Court.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 12th day of November, 2014.

Copies provided to:
Counsel of record via CM/ECF

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