Baricuatro et al v. Industrial Personnel and Management Services, Inc. et al

Filing 351

ORDER AND REASONS ON MOTIONS. For the reasons set forth herein, IT IS ORDERED that Defendants' Motion to Modify Protective Order and Impose Sanctions, Record Doc. No. 312, is GRANTED IN PART and DENIED IN PART, and that Plaintiffs' Motion for Contempt and Sanctions, Record Doc. No. 321, is DENIED. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 3/13/13.(tbl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ISIDRO BARICUATRO, JR. ET AL.

CIVIL ACTION

VERSUS

NO. 11-2777

INDUSTRIAL PERSONNEL AND
MANAGEMENT SERVICES, INC. ET AL.

SECTION “N” (2)

ORDER AND REASONS ON MOTIONS
This is a putative class action by foreign workers asserting a variety of causes of
action arising from their employment at a Louisiana shipyard. Two motions are currently
pending before me: (1) Defendants’ Motion to Modify Protective Order and Impose
Sanctions, Record Doc. No. 312, and (2) Plaintiffs’ Motion for Contempt and Sanctions,
Record Doc. No. 321. Both parties filed timely opposition and reply memoranda.
Record Doc. Nos. 333, 335, 336 338, 339, 347 and 349.
At the request of counsel for both parties, oral argument was conducted
concerning these motions on March 13, 2013. Participating were Peter B. Schneider,
Joseph Peiffer and Ellaine Carr, representing plaintiffs; David Korn, Larry Demmons,
Michael Tusa, Jr., Seth Nichamoff, MaryJo Roberts and Alexis Butler, counsel for the
various defendants.
Having considered the complaint, the record, the voluminous motion submissions
of the parties, the representations of counsel at oral argument and the applicable law, and

for the following reasons, IT IS ORDERED that defendants’ motion is GRANTED IN
PART and DENIED IN PART, and that plaintiffs’ motion is DENIED.
I.

DEFENDANTS’ MOTION TO MODIFY PROTECTIVE ORDER AND IMPOSE
SANCTIONS
Defendants’ motion seeks three kinds of relief based upon the admitted

participation of some plaintiffs in media events and interviews, which defendants assert
violated the court’s prior order. Record Doc No. 119 at pp. 3-4. The relief sought
includes: (1) modification of the court’s protective order to permit defendants to engage
in the same kind of media exposure and publicity activities concerning this case in which
some plaintiffs have engaged, and (2) imposition of sanctions, including (a) the ultimate
sanction of dismissal of the claims of those plaintiffs who have given broadcast or printed
interviews and participated in other publicity about their side of the case, and (b) an
award of defendants’ attorneys’ fees and costs incurred in investigating plaintiffs’
conduct and pursuing this motion.
The provision of the court’s order at issue in this motion is Paragraph III(2),
including its footnote 3, which states in pertinent part:
[N]either party shall schedule or hold any press conferences related to this
litigation or any event in this litigation . . . . “Press conference” shall mean
any pre-planned or scheduled announcement or interview with a member

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or representative . . . of any print or electronic or internet media outlet,
whether by general invitation or appointment.
Record Doc No. 119 at pp. 3-4 (emphasis added).
I find that the plaintiffs named in defendants’ motion papers who participated
either in interviews with a reporter from New Orleans television station WWL-TV or the
media/political/publicity events in the Philippines, New York and New Orleans violated
the court’s order. Plaintiffs concede that some plaintiffs sat for an interview by a WWLTV reporter, who requested it and then broadcast interview excerpts, and that they
participated directly in media-covered events in the Philippines, New York and New
Orleans sponsored by a third-party activist group with which plaintiffs informally
associated themselves. Plaintiffs argue, however, that these media and publicity
activities by plaintiffs did not violate the court’s order because plaintiffs themselves did
not instigate or initiate their media appearances and publicity, which instead were
scheduled or prompted by the television reporter or the activist group. They argue that
the court’s order prohibited only media statements and publicity by plaintiffs that they
themselves pre-planned, scheduled or invited, or for which plaintiffs themselves made
the appointment.
I reject this interpretation of the court’s order. The order itself does not include
any such limitation. The definition of prohibited press conferences includes “pre3

planned or scheduled announcement or interview.” It does not specify pre-planned or
scheduled by whom; i.e., plaintiffs as opposed to others, like reporters or activist groups.
In the everyday affairs of human beings, announcements and interviews may be preplanned or scheduled either by the announcer or the subject of the announcement, either
by the interviewer or the interviewee. In these circumstances, the order prohibits the
defined activity no matter who pre-planned or scheduled it.
In addition, the adjectives “pre-planned or scheduled” precede the word
“announcement.” They do not immediately precede the term “interview,” which is
preceded by the connective word “or.” When parties disagree about the meaning of
words or phrases, the court will look for the words’ common meaning in a way that
renders the provision effective, not ineffective, and with reference, if necessary, to the
dictionary. See In re Katrina Canal Breach Litig., 495 F.3d 191, 207-11, 214 (5th Cir.
2007) (relying upon various dictionaries and Louisiana law interpretive techniques to
discern the meaning of the word “flood”). “Or” is “a function word” with more than one
meaning. On one hand, it may be used “to indicate (1) an alternative between different
or unlike things, states, or actions.” On the other hand, it may connect “(3) synonymous,
equivalent, or substitutive character of two words.” Webster’s Third New International
Dictionary 1585 (Merriam-Webster Inc. 1981). In the instant order, the former definition
of the word “or” clearly applies, since an “announcement” is something entirely different
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from and unlike an “interview.” The word “interview” is defined as “a meeting in which
a writer or reporter or radio or television commentator obtains information from someone
for publication or broadcast.” Id. at 1184. An “announcement” in the context of this
order means “a message delivered on radio or television.” Id. at 87. None of the
definitions of “interview” and “announcement” contained in my office dictionary make
any reference to who might have instigated them. Under these circumstances, I cannot
conclude that ”pre-planned or scheduled” was intended to describe or modify
“interview,” by referring only to plaintiffs’ pre-planning or scheduling.
When coupled with the absence of any limitation in the order as to whom the preplanning or scheduling requirement applies, the most common-sense and effective
interpretation of the court’s order, particularly when considering the clear intent of the
court to require the parties to try their case in the courtroom rather than in the press, is
to prohibit the parties from giving media interviews and statements about the case, no
matter who scheduled, planned, invited or made the appointment for the interview.
The court’s order is geared at prohibiting conduct that threatens to undermine the
orderly resolution of this dispute through the balanced clash of adversarial positions
inherent in the carefully structured crucible of the federal court, as opposed to the lessstructured arena of partially informed public opinion. The order makes no distinction as
to whether that prohibited conduct is undertaken on the parties’ own volition or in
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response to some outsider’s initiation of the prohibited conduct, such as by a reporter or
an activist organization. Plaintiffs’ argument would impose a nonsensical interpretation
of the court’s order that would render the order ineffective by permitting plaintiffs to do
what the order prohibits them from doing, through the mere expedient of the press
requesting the statement or interview.
Whether characterized as a protective order under Rule 26(c) or (as appears more
likely) a pretrial order under Rule 16(c)(2)(L), an award of reasonable expenses,
including attorney’s fees, is appropriate when an order of this sort is violated. Fed. R.
Civ. P. 26(c)(3) and 16(f). Both rules permit the imposition of monetary sanctions
against the party, its attorney, or both. Fed. R. Civ. P. 16(f)(2) and 37(a)(5)(A) (made
applicable to a “protective order” violation by Fed. R. Civ. P. 26(c)(3)). In this case, it
is clear from the motion papers and from the admissions of plaintiffs’ counsel at oral
argument that plaintiffs’ attorneys permitted and assisted them in participating in the
subject publicity activities. Counsel sat with some of the plaintiffs during their television
interviews and attended the activist group’s rallies with others.
Under these circumstances, I find that sanctions should be imposed against
plaintiffs and their counsel. Thus, the motion is granted insofar as it seeks monetary
sanctions against the following offending plaintiffs: Eduardo Real, Ferdinand Garcia,
Rufino Orlanez, Ricardo Ramos, Randy Cabuenas, Romeo Andrade, Lemuel Lumanog,
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Adrian Payagan, Isidro Baricuatro, Jr., Welson Gorom, Ranel Lamoste, Edna Tajonera
and Jade Diane Tajonera (to the extent the two Tajoneras may be named as substitute
plaintiffs for the named plaintiff, Avelino Tajonera, pursuant to Fed. R. Civ. P. 25(a)),
and their counsel. To set the amount of the monetary sanctions award, defendants must
file a separate motion, noticed for hearing pursuant to Local Rule 7.2 and supported by
evidence and in the manner required by Local Rule 54.2.
The motion is denied insofar as it seeks the dispositive and draconian remedy of
dismissal of these plaintiffs’ claims as a sanction. While dismissal is not expressly
provided as a sanction under Rule 26(c), the court’s order in this instance, as mentioned
above, appears to have been entered as a pretrial order pursuant to Fed. R. Civ. P.
16(c)(2)(L) aimed at “adopting special procedures for managing potentially difficult or
protracted actions that may involve complex issues, multiple parties, difficult legal
questions, or unusual proof problems.” Sanctions for violation of such orders encompass
“those authorized by Rule 37(b)(2)(A)(ii-(vii),” which include dismissal. Fed. R. Civ.
P. 16(f)(1)(C).
In the Rule 37(b)(2) discovery context, the sanction of dismissal is reserved
exclusively for clear records of contumacious and continuing misconduct. See Doe v.
Am. Airlines, 283 F. App’x 289, 291 (5th Cir. 2008); Davis v. Auto Club Family Ins.
Co., No. 07-8545, 2008 WL 5110619, at *1 (E.D. La. Dec. 2, 2008) (Vance, J.) (citing
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Fed. Deposit Ins. Corp. v. Conner, 20 F.3d 1376, 1381 (5th Cir. 1994); Equal Emp’t
Opportunity Comm’n v. Gen. Dynamics Corp., 999 F.2d 113, 119 (5th Cir. 1993);
Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 515 (5th Cir. 1985)). Whether by
exercise of a court’s inherent sanctioning power or under the authority of Rule 37(b),
imposition of the severest sanctions, such as the dismissal of claims as requested by
defendants in this motion, requires a showing of bad faith, willful disobedience of the
court order or vexatious, wanton or oppressive conduct. Chambers v. NASCO, Inc., 501
U.S. 32, 45-46 (1991); Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486,
488 (5th Cir. 2012).
No such showing of contumacious, wanton, willful or bad faith misconduct has
been established at this time. While I have rejected plaintiffs’ strained interpretation of
the court’s order as discussed above, I cannot conclude that their interpretation, as
provided by their counsel, was contumacious, vexatious or in bad faith. Certainly, now
that the court has explained the order so that no party can reasonably apply the mistaken
interpretation previously employed by plaintiffs and their counsel, future violations of
the court’s order of the type committed by plaintiffs to date may subject them to the
severest of sanctions. At this time, however, I find that dismissal as a sanction for
plaintiffs who apparently relied on their counsel in violating the court’s order would be
unduly harsh.
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Defendants’ motion is denied insofar as it seeks modification of the order. The
order remains in place for the same reasons it was originally entered, including to
discourage and prohibit the parties from trying their case through one-sided and selfserving accounts in the media rather than through the orderly and balanced processes of
the court, which plaintiffs chose as their dispute resolution arena – rather than the court
of public opinion – when they filed this lawsuit. Defendants’ concerns that plaintiffs’
media statements have so poisoned public opinion and the potential jury pool that only
their own media and publicity campaign can now level the playing field is misplaced.
Any concern about the effect of plaintiffs’ activities on the potential jury and at trial can
be adequately addressed at trial, through vigorous voir dire examination and the
exclusion from jury service of any venire person whose objectivity has been undermined
by the one-sided presentations of this case in the media to date. The court will not
modify the order in the manner requested by defendants.
II.

PLAINTIFFS’ MOTION FOR CONTEMPT AND SANCTIONS
Plaintiffs contend in their motion that defendants have violated the same court

order, Record Doc. No. 119 at p. 2, through various job-related actions to intimidate or
retaliate against plaintiffs for having filed suit against defendants. Plaintiffs seek a
contempt citation, monetary sanctions and various other sorts of remedies, some of which
are in the nature of discovery. The provision of the order at issue in this motion is
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Paragraph I(2), which states: “Neither party will coerce, threaten, or intimidate any
putative class member.”
The movant in a civil contempt proceeding bears the burden of
establishing by clear and convincing evidence that: (1) a court order was
in effect; (2) the order required certain conduct by the respondent; and
(3) the respondent failed to comply with the court order. In the contempt
context, “clear and convincing evidence” is that ‘weight of proof which
produces in the mind of the trier of fact a firm belief or conviction as to
truth of the allegations sought to be established, evidence so clear, direct,
weighty and convincing as to enable [the] fact finder to come to a clear
conviction, without hesitancy, of the truth of the precise facts of the case.”
Moawad v. Childs, 253 F.3d 700, 2001 WL 498491, at *1 (5th Cir. Apr. 9, 2001)
(quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)); accord
Hornbeck Offshore Servs., L.L.C. v. Salazar, 701 F.3d 810, 815 (5th Cir. 2012); Am.
Serv. Mktg. Corp. v. Bushnell, No. 09-3097, 2009 WL 1870887, at *2 (E.D. La. June 25,
2009) (Engelhardt, J.).
“Statements and arguments of the attorneys are not evidence . . . .” Fifth Circuit
Pattern Jury Instructions (Civil) 3.1 (West 2009); accord D.A. ex rel. Latasha A. v.
Houston Indep. Sch. Dist., 629 F.3d 450, 457 (5th Cir. 2010); United States v. Thomas,
627 F.3d 146, 158 (5th Cir. 2010). Thus, I have closely examined the sworn statements
and other evidence attached to the motion papers to determine if they present evidence
sufficient to support the severe sanctions sought in this motion. When the florid
argument and intimations of plaintiffs’ counsel, which are not evidence, are separated
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from the sometimes vague and conclusory content of the sworn statements attached in
support of the motion, those sworn statements do not amount to clear and convincing
evidence sufficient to show that defendants engaged in conduct prohibited by the order.
In addition, the contradictory affidavits submitted by defendants in opposition to the
motion establish that the facts are disputed as to the scope, nature, true basis, effect,
motivation for and intent behind the allegedly retaliatory and/or intimidating actions
claimed by plaintiffs. It is entirely unclear on this record whether defendants’ alleged
actions were retaliatory or intimidating, as opposed to merely mistaken or undertaken for
legitimate business reasons or justifiable other motivations.
On the current record, I find that plaintiffs have failed to bear their burden of proof
in a manner sufficient to support either the contempt citation or the other sanctions they
seek in this motion. Like the media activities in which plaintiffs engaged that are the
subject of defendants’ motion addressed above, I view the instant motion as an attempt
by plaintiffs to pre-try their case without the full and balanced exposition of the record,

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including competing evidence, that will be available at trial or perhaps on a summary
judgment record. This motion is denied.

13th
New Orleans, Louisiana, this _________ day of March, 2013.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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