Cameo, LLC v. Akzo Nobel Coatings, Inc.
MEMORANDUM OPINION AND ORDER: IT IS ORDERED: (1) ICIA's motion for sanctions and to strike, (DE 31 in 5:08-cv-318), (DE 8 in 5:14-cv-256), is DENIED IN PART and GRANTED IN PART; & (2) ICIA shall be awarded attorney's fees in the amount outlined by this Order. ICIA shall SUBMIT to the Court, w/in 30 days, its atty's fee statement, w/ supporting documentation. Signed by Judge Joseph M. Hood on March 20, 2015. (MWZ) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ICI AMERICAS, INC.
AKZO NOBEL COATINGS, INC.
ICI AMERICAS, INC.,
Action No. 5:08-cv-316-JMH
Action No. 5:14-cv-256-JMH
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the motion of ICI
Americas, Inc. (“ICIA”) to strike Cameo, LLC’s complaint in the
related action, No. 5:14-cv-256, for attorney’s fees and costs,
and for sanctions.
For the reasons that follow, the Court will
deny the motion to strike Cameo’s complaint, deny the motion for
sanctions, and grant, in part, the motion for attorney’s fees
In 2008, Cameo sued ICIA for breach of contract,
alia, in Action No. 5:08-cv-316-JMH.
In February 2009, this
Court entered the parties’ agreed order in that matter, which
provided that certain information that ICIA shared with Cameo
for the purposes of mediation would remain strictly confidential
and would not be disclosed to anyone other than the mediator.1
See DE 23.
The parties later engaged in arbitration and the
case was dismissed voluntarily with prejudice, but the Court
retained jurisdiction with respect to post-settlement issues.
See DE 27.
On June 26, 2014, Cameo—“not satisfied with the results of
the arbitration”—filed a complaint against Akzo Nobel Coatings,
Inc., an entity Cameo claims is ICIA’s successor-in-interest.
See Action No. 5:14-cv-256-JMH, DE 1, DE 40 at ID# 216.
8, 2014, Cameo filed a motion to seal the complaint, advising
ICIA’s belief that the complaint violated prior confidentiality
agreements and orders related to the 2008 action.
same day, ICIA—though not a party to the 2014 action—moved to
ICIA also contends that Cameo’s complaint in the 2014 action violates the
terms of a June 2009 “Release, Settlement, and Confidentiality Agreement,” as
well as an agreed “Protective Order” that was entered during binding
arbitration from the 2008 action.
Although ICIA asserts that these items
have been entered into the record as exhibits, the Court has reviewed the
record and has failed to locate them.
strike the complaint, to hold Cameo in contempt, for sanctions,
and for attorney’s fees and costs.
On July 10, 2014, the
Court granted Cameo’s motion to seal the complaint and gave
Cameo a brief period to file a motion to amend the complaint or
potentially sensitive nature of the information therein, as well
sanctions, fees, and costs.
The Court first addresses ICIA’s motion to strike Cameo’s
complaint in order to “protect ICIA’s confidential information.”
ICIA moves to strike pursuant to Federal Rule of Civil Procedure
37(b)(2)(A)(iii), which provides that pleadings may be stricken,
in whole or in part, when a party fails to obey a discovery
Although the Court retains considerable discretion in
developed at this time, the Court is unable to determine that
alleged, that it has been materially harmed by the disclosure of
information in Cameo’s complaint.
The complaint and amended
complaints in this matter have been placed under seal and, thus,
Even if Cameo’s claims ultimately fail on
those bases, dismissing them based upon the record before the
Court at this time would be improper. Accordingly, the Court
finds that striking the complaint is a drastic action that is
not warranted at this time.
Likewise, the Court declines to hold Cameo in contempt of
“In order to hold a litigant in contempt, the movant
must produce clear and convincing evidence that shows that ‘[the
non-moving party] violated 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.’”
Elec. Workers Pension Trust Fund v. Gary’s Elec. Serv. Co., 340
829 F.2d 585, 588 (6th Cir. 1987) (alteration
ICIA has not demonstrated, by clear and convincing
voluntary basis in connection with the proposed mediation” that
were not later obtained by Cameo through other means under which
confidentiality requirements did not apply.
Further, on July 8, 2014—12 days after the complaint was
See 5:08-cv-316 at
contempt of Court.
While the Court acknowledges that Cameo’s
motion to seal the complaint was not entirely self-initiated,
contempt is a drastic sanction which is typically inappropriate
when a party has received no prior warnings and has received no
opportunity to remedy its behavior.
Accordingly, it is not
ICIA also moves for reasonable costs, including attorney’s
As explained above, Cameo acknowledges that it was only
after receiving communication from counsel for ICIA that Cameo
moved to seal its complaint, conceding that modifications may
have been warranted.
Accordingly, pursuant to Federal Rule of
fees to ICIA based on the expenses incurred in contacting Cameo
to initiate the sealing of the complaint.
The request shall not
exceed two hours of the attorney’s time and shall be accompanied
by the attorney’s supporting affidavit.
Accordingly, IT IS HEREBY ORDERED:
that ICIA’s motion for sanctions and to strike, [DE 31
in 5:08-cv-318], [DE 8 in 5:14-cv-256], is DENIED IN PART and
GRANTED IN PART; and
ICIA shall be awarded attorney’s fees in the amount
outlined by this Order.
ICIA shall SUBMIT to the Court, within
thirty (30) days, its attorney’s fee statement, with supporting
This the 20th day of March, 2015.
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