Solis v. Thompson et al

Filing 37

ORDER granting 33 Motion for adjudication of civil contempt. Plaintiff shall inform the Court how he wishes to proceed within 7 days. Signed by Honorable David C. Bramlette, III on 2/10/2015 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
THOMAS E. PEREZ, Secretary of Labor,
United States Department of Labor
VS.

PLAINTIFF

CIVIL ACTION NO. 5:12-cv-52(DCB)(MTP)

RICHARD THOMPSON, an Individual; and
THOMPSON TREE AND SPRAYING SERVICE, INC.,
d/b/a LIVE OAK NURSERY

DEFENDANTS

ORDER
This cause is before the Court on the plaintiff’s motion for
adjudication of civil contempt (docket entry 33). Having carefully
considered the motion and response, the memoranda of the parties
and the applicable law, the Court finds as follows:
On April 20, 2012, the plaintiff filed a complaint alleging
that,

since

October

1,

2009,

the

defendants

willfully

and

repeatedly violated sections 6, 7, 11(c), 15(a)(2), and 15 (a)(5)
of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §
201, et seq. (“the Act”).

Complaint, docket entry 1.

The

Complaint sought back wages and an equal amount of liquidated
damages for 69 of the defendants’ employees.

The parties reached

a settlement of this case and prepared a Consent Judgment which the
Court entered on January 27, 2014.

Under the terms of the Consent

Judgment, among other things, the defendants were restrained from
withholding payment of $35,576.26 due 69 employees under the Act.
The amount of $35,576.26 constitutes back wages in the amount of
$23,717.41 plus liquidated damages in the amount of $11,858.85.

The defendants were ordered to pay this amount to the plaintiff by
March 14, 2014. The plaintiff alleges that the defendants have
failed to pay as ordered.
The Consent Judgment unequivocally required the defendants to
pay the plaintiff $35,576.26 by March 14, 2014.

The plaintiff

alleges that the defendants have willfully violated the Consent
Judgment by failing to pay the entire amount owed.

As of July 31,

2014, the defendants had paid a total of $20,000 in accordance with
the Consent Judgment, leaving a balance of $15,576.26.

The

defendants sent checks for the following amounts on the specified
dates: $5,000 on February 17, 2014; $5,000 on February 26, 2014;
$5,000 on March 26, 2014; and $5,000 on May 12, 2014.
On May 14, 2014, the plaintiff wrote the defendants demanding
compliance with the Consent Judgment. Prior to sending the letter,
plaintiff’s counsel discussed the unpaid balance with defendants’
counsel.

Despite the plaintiff’s verbal and written requests, the

defendants had not complied with the Consent Judgment as of August
1, 2014.

See Affidavit of Uche Egemonye.

The Secretary of Labor’s Petition for Adjudication in Civil
Contempt is “not the institution of an independent proceeding but
is part of the original cause.”
1114 (5th Cir. 1971).

Hodgson v. Hotard, 436 F.2d 1110,

“A party commits contempt when he violates

a definite and specific order of the court requiring him to perform
or refrain from performing a particular act or acts with knowledge

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of the court’s order.”

S.E.C. v. First Financial Group of Texas,

Inc., 659 F.2d 660, 669 (5th Cir. 1981).
It is indisputable that a civil contempt proceeding is the
proper means for ensuring compliance with the Act.

McComb v.

Jacksonville Paper Co., 336 U.S. 187, 191 (1949); Hodgson, 436 F.2d
at 1114.

In McComb, a contempt proceeding for violation of an

injunction under the Act, the Supreme Court stated:
If the Court is powerless to require the prescribed
payments [back wages] to be made, it has lost the most
effective sanction for its decree and a premium has been
placed on violations . . . . It is the power of the Court
with which we are dealing - - the power of the Court to
enforce compliance with the injunction which the Act
authorizes, which the court has issued, and which
respondents have long disobeyed.
McComb, 336 U.S. at 194-95.
To prevail in a civil contempt proceeding in the Fifth
Circuit,

the

movant

must

establish

by

clear

and

convincing

evidence: “that (1) a court order was in effect, (2) the order
required

specified

conduct

by

the

respondent,

and

respondent failed to comply with the court’s order.”

(3)

the

U.S. v.

Jackson, 359 F.3d 727, 731 (5th Cir. 2004)(citing American Airlines,
Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 581 (5th Cir. 2000)).
A finding that a party violated a court’s order willfully or in bad
faith is generally required in the Fifth Circuit. See KeyBank Nat.
Ass’n v. Perkins Rowe Assocs., Inc., 2011 WL 2222192, at *2 (M.D.
La. June 7, 2011)(citing J.D. v. Nagin, 2009 WL 363456, at *5 (E.D.
La. Feb. 11, 2009)).

“A consent order, while founded on the
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agreement

of

enforceable

the

by

parties,

sanctions

is

nevertheless

including

a

a

citation

judicial
for

act,

contempt.”

Whitfield v. Pennington, 832 F.2d 909, 913 (5th Cir. 1987)(citing
U.S. v. Miami, 664 F.2d 435, 439-40 (5th Cir. 1981)).

Moreover,

“the moving party bears the burden of proving by ‘clear and
convincing’ evidence that the alleged contemnor was aware of and
violated a ‘definite and specific order requiring him to perform or
refrain from performing a particular act or acts.’” Shafer v. Army
and Air Force Exch. Serv., 376 F.3d 386, 396 (5th Cir. 2004)(quoting
Travelhost v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)).
Secretary

of

Labor

contends

he

has

satisfied

each

of

The
these

requirements.
Consent

Judgments

proceedings.

can

be

enforced

through

contempt

See Davis v. Jackson Fire Dep’t., 399 F.Supp.2d 753,

755 (S.D. Miss. 2005)(citing Buckhannon Bd. & Care Home, Inc. v.
West Vir.

Dep’t of Health & Human Res., 532 U.S. 598, 604

(2001)(finding that “a consent decree has two characteristics that
distinguish it from a private settlement: (1) judicial approval;
and (2) judicial oversight.”)); U.S. v. Miami, 664 F.2d 435, 439-40
(5th Cir. 1981)(noting that consent decrees differ from settlement
agreements because consent decrees can be enforced through contempt
proceedings).
There is no question that the parties intended for the Court
to retain jurisdiction for enforcement purposes.

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It is well

settled that “district courts have wide discretion to enforce
decrees and to implement remedies for decree violations,” as
consent decrees are judicial orders. U.S. v. Alcoa, Inc., 533 F.3d
278,286 (5th Cir. 2008).

This Court therefore has the authority to

hold the defendants in contempt for failing to pay the total amount
due.

Clearly, the Consent Judgment is in effect; therefore, the

plaintiff has satisfied the first element.
The Consent Judgment also required specific conduct from the
defendants.

To resolve this litigation, the defendants agreed to

pay a specified amount of back wages and liquidated damages by a
specific date, March 14, 2014.

However, the defendants made only

one payment of $5,000 by March 14, 2014.

The remaining three

payments of $5,000 each were made after March 14, 2014.

As a

result of the defendants’ failure to pay the entire amount owed,
the plaintiff has not been able to make distributions to the
defendants’ employees, some of whom have been owed back wages since
October of 2009.

Thus, the second element is satisfied.

The third element is also satisfied because the defendants
failed to comply with the Court’s Order.

Moreover, the plaintiff

received the last payment from the defendants in May of 2014 and as
of the date of his motion had received no further communication
from the defendants.
Once the Secretary of Labor has proven that the employer is
delinquent in complying with a consent order, he has established a

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prima facie case for civil contempt.

Hodgson, 436 F.2d at 1115.

The Secretary does not bear the burden of proving that the employer
was able to comply with the consent order.

Instead, it is

incumbent on the employer, if civil contempt is to be avoided, to
prove that it was impossible for him to comply with the court’s
order.

Id.

The defendants, in response to the Secretary’s motion, state
that they have paid an additional $7,000 since the filing of the
plaintiff’s motion.

They also state that they sent the Secretary

$1,000 the same day that they filed their response, and intend to
pay “$1,000 on a weekly basis until the balance is paid in full.”
The defendants do not allege that they are unable to pay because of
financial hardship.
The Secretary has not filed a rebuttal brief.

Nevertheless,

the defendants are in contempt because they admit they did not pay
the full judgment amount by March 14, 2014.

The only question

remaining is whether the defendants have purged themselves of
contempt by paying the entire judgment amount, or whether a
Contempt-Purging Payment Order is required of the Court.

The

plaintiff shall notify the Court how it wishes to proceed.
Accordingly,
IT

IS

HEREBY

ORDERED

that

the

plaintiff’s

motion

for

adjudication of civil contempt (docket entry 33) is GRANTED in that
the Court finds that the defendants did not comply with the January

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27, 2014, Consent Order requiring them to pay the full judgment
amount by March 14, 2014.
FURTHER ORDERED that the plaintiff shall file a rebuttal brief
or other pleading indicating how he wishes to proceed in this case,
within seven (7) days from the date of entry of this Order.
SO ORDERED, this the 10th day of February, 2015.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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