Martinez v. Tri-State Enterprises LLC et al

Filing 94

ORDER granting in part and denying in part 80 Motion for Contempt. Signed by Magistrate Judge Jane M. Virden on 11/6/17. (ncb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
ANGEL MARTINEZ, on his own
behalf and on behalf of all others
similarly situated, PLAINTIFF
v.

Cause No: 3:16-cv-00032-MPM-JMV

TRI-STATE ENTERPRISES, LLC;
REGINA BROCK; LEE BROCK; and
MICHAEL BROCK, DEFENDANTS

ORDER

This matter is before the Court on Plaintiff’s Fifth Motion for Contempt [80]. For the
reasons stated below, the motion is granted in part, denied in part, and held in abeyance in part.
Background
The relevant history of this case is as follows:
Plaintiff filed the complaint [1] on February 12, 2016. Defendants filed their answer [10]
to the complaint on April 1, 2016. Counsel for defendants, Graves, Smith, Palmertree, & Shaw,
PLLC, moved to withdraw from the case on May 4, 2016. On May 5, 2016, a case management
conference (CMC) was held, and the case management order (CMO) was entered the same day.
The CMO required that initial disclosures of Rule 26 documents be exchanged within seven days
following the CMC.
On May 23, 2016, Plaintiff filed his first motion for sanctions [18] for defendants’ failure
to comply with the initial disclosures obligation. The defendants retained Attorney Stephen
Livingston on the same date to act as counsel for them. On May 24, 2016, the undersigned
granted Graves, Smith’s motion to withdraw. See Doc. [19].

On July 6, 2016, the court granted Plaintiff’s unopposed motion for sanctions, see Doc.
[23], and by separate Order [25] entered August 11, 2016, awarded fees of $425.00 against the
defendants, jointly and severally. The August 11 Order required that defendants complete initial
disclosures within five days of service of that Order and pay the sanction to Plaintiff’s counsel
within fourteen days of service. Though Mr. Livingston had been retained as early as May 23,
2016, he had not entered an appearance in the action.
On September 26, 2016, a Show Cause Order [28] was entered by District Judge Mills
because no response to a motion [21] for provisional class certification had been filed on behalf
of the defendants. No response to the Show Cause Order was thereafter filed, and an Order [30]
granting provisional certification was entered on October 13, 2016. Not until November 10,
2016, did Mr. Livingston file a notice [37] of appearance as counsel for the defendants--though,
as noted, he had originally been retained in the action as early as May 23, 2016.
On October 28, 2016, Plaintiff filed a motion to compel responses to discovery [32] and a
motion for contempt [33], and a hearing on those motions was held November 14, 2016. During
the hearing, however, the parties announced that they had reached an agreement. The agreement
reiterated the defendants’ earlier imposed obligation to pay a sanction of $425.00.1
On February 13, 2017, Plaintiff filed a Second Motion for Contempt [43] related to
defendants’ alleged failure to comply with certain requirements of the Order granting conditional
certification. Later, on March 10, 2017, Plaintiff filed a motion [47] to compel discovery
responses. On March 13, 2017, during a hearing, the undersigned granted both the motion for
contempt and the motion to compel, and awarded fees against the defendants. See Doc. [48].
Mr. Mike Brock was present for the hearing. Plaintiff’s counsel was required to file an

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During the hearing held October 30, 2017, counsel for defendants indicated that it appeared that this amount had
been paid by defendants at some point.

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itemization of fees incurred in bringing the motions. Id. The itemization [50] was unopposed,
and an Order [53] awarding fees and expenses of $4,954.81 was entered against the defendants.
On May 26, 2017, Plaintiff filed a third motion for contempt [54], and on June 21, 2017,
a hearing was held on the motion. By Order [57] dated June 22, 2017, defendants were granted
additional time to pay the prior sanction award, and a sanction of $400.00 was assessed against
Mr. Livingston because his failures, as opposed to any failure of his clients, had occasioned the
third motion for contempt. Mr. Livingston had announced during the hearing on the motion that
a very serious health condition in combination with his failure to keep the Court apprised of his
contact information contributed to defendants’ failure to comply with the Court’s orders. Mr.
Livingston was allowed sixty days from the date of that Order to pay the sanction.
On July 21, 2017, the undersigned denied a motion [58] to withdraw filed by Mr.
Livingston on July 12 because Mr. Livingston had not complied with the Court’s Order dated
June 22, 2017--namely he had not certified on the record that he had provided all of his clients
with copies of all orders entered in the case. See Doc. [63]. He was given until July 26 to do so.
Id.
On July 24, 2017, Mr. Livingston certified he had delivered all orders to his clients, and
on August 2, 2017, an Order [72] was entered allowing Mr. Livingston’s withdrawal, but
reminding him of his obligation to satisfy the $400.00 sanction award against him by no later
than August 21, 2017.
On August 28, 2017, Plaintiff filed yet another motion for contempt [73], but the motion
was denied for insufficient briefing. On September 7, however, the individual defendant, Mr.
Mike Brock, said to be acting on behalf of the Defendant LLC, wrote a letter to the Court [75],
advising, among other things, that around the end of July 2017 at the request of Mr. Livingston,

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he had written a check to Mr. Livingston for $400.00, presumably to satisfy a putative award of
sanctions against the defendants. The $400.00 was never transmitted to Plaintiff or his counsel
in satisfaction of the $400.00 sanction award, which was against Mr. Livingston, not his clients.
On September 27, 2017, Plaintiff filed a fifth motion for contempt [80], and on September 28,
2017, new counsel for the defendants entered an appearance, see Doc. [82], and later filed a
formal response [88] in opposition to the motion for contempt.
Plaintiff’s Fifth Motion for Contempt
Before the Court for consideration is whether the defendants’ and/or Mr. Livingston’s
failures to comply with the sanctions awards in this case (the award of $4,954.81 against the
defendants, jointly and severally, and the $400.00 award against Mr. Livingston) are grounds for
finding any of them in contempt and/or warrant a further order of sanctions. It appears to the
Court that Mr. Livingston wrongfully took from defendants $400.00 by falsely contending the
clients had been ordered to pay it as a further sanction. Making matters worse, Mr. Livingston
never in fact paid the $400.00 collected from the client to satisfy the sanction. Indeed, during the
October 30 hearing, Mr. Livingston conceded the client was due a $400.00 refund.
Ruling
Mr. Livingston: Mr. Livingston is found to be in contempt of court, and he is directed to
self-report this matter to the Mississippi Bar forthwith. In particular, Mr. Livingston, who was,
as counsel for defendants, ordered to personally pay $400.00 as a sanction arising out of his own
failures to obey orders of the Court, instead collected the $400.00 from his client and, even then,
did not pay the fees to Plaintiff as ordered. This necessitated even further hearings in this matter.
In addition, Mr. Livingston collected fees from his client(s) for representation beginning May 23,
2016, but did not actually enter an appearance or take any action on their behalf until November

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2016. In the interim, Mr. Livingston’s clients were sanctioned $425.00 as a consequence of
Plaintiff’s unopposed motion for fees occasioned by failure of the defendants to make initial
disclosures. Mr. Livingston has been ordered to repay his client by 5:00 PM on October 30,
2017, the $400.00 sanction and to pay counsel for Plaintiff from his own funds the $400.00
sanction award. Any failure to do so will result in further appropriate sanctions.
The defendants: The defendants have alleged they were unaware that a sanction of
$4,954.81 had been awarded against them while Mr. Livingston served as their counsel. The
court notes, however, that at least one of the individual defendants, Mike Brock, was present at
the hearing where the fact of such sanction was ordered (though not the amount of the sanction
which was not assessed until after Plaintiff’s counsel filed his unopposed itemization of fees and
expenses incurred in bringing the matter on for hearing). Further, at the hearing held October 30,
2017, Mr. Brock conceded he was aware of the fact that a monetary sanction had been awarded
against the defendants and that his counsel might have mentioned “something about $5,000.00.”
In short, the Court finds no basis to reconsider the award previously assessed against the
defendants, but will allow the defendants thirty (30) days from October 30, 2017, to pay the
same in full. The defendants have been admonished that a further failure to pay the sanction will
result in further sanctions as deemed appropriate.
As for costs incurred in bringing the fifth motion for contempt, the Court will hold that
matter in abeyance until such time, if any, the Court deems such an award, after notice, to be
appropriate. Except as otherwise noted herein, the motion is denied.
So ordered this, the 6th day of November, 2017.

/s/ Jane M. Virden
U.S. MAGISTRATE JUDGE
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