Greater St. Louis Construction Laborers Welfare Fund et al v. Marshall Contracting, LLC
Filing
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MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion for Contempt 12 is GRANTED and Defendant Marshall Contracting, LLC, is found in CONTEMPT of this Court. As sanctioned, Defendant is liable for a fine of $200.00 per day f or every day after this date that Defendant fails to submit its records for inspection or otherwise comply with this Court's Orders and Plaintiffs' discovery requests. Plaintiffs' attorney shall contact the Court if and when Defendan t produces its records for inspection.IT IS FURTHER ORDERED that Plaintiffs' request for an award of attorneys' fees and costs of its motions for a default order of accounting [ECF No. 6] and contempt [ECF No. 12] is GRANTED. Counsel for P laintiffs is granted until October 12, 2012 to file an affidavit of fees and Costs for the Court's consideration. IT IS FURTHER ORDERED that Plaintiffs' oral motion for a writ of body attachment is denied without prejudice to refiling in the event of Defendant's continued non-compliance. IT IS FURTHER ORDERED that Plaintiffs shall effect service of this Order and the Court's Order of June 1, 2012, [ECF No. 11] on Defendant by whatever means they believe to be most effective , and shall promptly file a certificate of such service. Failure to show adequate evidence of prompt service may result in the continuation or cancellation of the compliance fine ordered herein.. Signed by District Judge John A. Ross on 10/5/12. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREATER ST. LOUIS CONSTRUCTION
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LABORERS WELFARE FUND, an employee )
benefit plan, et al,
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Plaintiffs,
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v.
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MARSHALL CONTRACTING, LLC,
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Defendant.
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No. 4:12-CV-524-JAR
MEMORANDUM AND ORDER
This matter came before the Court for hearing on Plaintiffs’ Motion for Contempt [ECF No.
12], arising from Defendant Marshall Contracting, LLC’s failure to comply with a court order
compelling Defendant to account to Plaintiffs for all amounts due and owing Plaintiffs from the
period November 1, 2008 to date [ECF No. 11]. Plaintiffs appear by counsel. Despite proper notice
and personal service on Defendant’s registered agent, Defendant does not appear.
Courts have authority to award sanctions for contempt in ERISA collection cases where the
Defendant and/or its representative fails to participate in discovery for purposes of determining the
amount of liability for unpaid fringe benefit contributions. Greater St. Louis Construction Laborers
Welfare Fund v. Aura Contracting, LLC, 2012 WL 2684864, at *1 (E.D. Mo. July 6, 2012) (citing
Chicago Truck Drivers v. Brotherhood Labor Leasing, 207 F.3d 500, 504–05 (8th Cir.2000)).
Appropriate sanctions include monetary fines and the issuance of a writ of body attachment for
incarceration until the contempt is purged. Id. ( citing Fischer v. Marubeni Cotton Corp., 526 F.2d
1338, 1340 (8th Cir.1975) (fines); Painters Dist. Council No. 2 v. Paragon Painting of Missouri,
LLC, 2011 WL 3891870, *1 (E.D.Mo. Sept. 1, 2011) (body attachment)). In addition, the issuance
of an order of contempt, pursuant to Federal Rule of Civil Procedure 45(e) may include, pursuant
to Federal Rule of Civil Procedure 37(b), sanctions such as attorney's fees and costs. Aura
Contracting, 2012 WL 2684864, at *1. A party seeking civil contempt bears the burden of proving
by clear and convincing evidence that the alleged contemnors violated a court order. Chicago Truck
Drivers, 207 F.3d at 504–05. The Court's contempt power also extends to non-parties who have
notice of the Court's order and the responsibility to comply with it. Greater St. Louis Construction
Laborers Welfare Fund v. Hance Excavating, LLC, 2008 WL 544718, at *2 (E.D. Mo. February 26,
2008) (citations omitted).
Courts in this district have previously imposed compliance fines in ERISA delinquency
collection cases and ordered a defendant to reimburse the plaintiffs for attorneys' fees incurred in
attempting to compel compliance with a Court order. See, e.g., Aura Contracting, 2012 WL
2684864, at *1; Greater St. Louis Construction Laborers Welfare Fund v. Akbar Electric Serv. Co.,
Inc., No. 4:96–CV–1582 CDP, at *1 (E.D.Mo. Apr. 21, 1997) (ordering defendant to reimburse
plaintiff for attorney's fees); Greater St. Louis Construction Laborers Welfare Fund, et al. v. Marvin
Steele Enters., Inc., No. 4:96–CV–1073 ERW, at *1 (E.D.Mo. Mar. 21, 1997) (ordering a
compliance fine of $200 per day). In addition, incarceration has been used to compel compliance
with Court orders in the context of ERISA delinquency actions. See, e.g., Paragon Painting, 2011
WL 3891870, at *1; Marvin Steele Enters., No. 4:96–CV–1073 ERW, at* 1 (ordering that a bench
warrant issue for the arrest of the individual defendants). Courts in this district have also imposed
contempt sanctions on a corporation's officer who failed to participate in post-judgment discovery
in an ERISA delinquency action. See, e.g., Carpenters' District Council of Greater St. Louis and
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Vicinity v. DLR Opportunities, Inc., No. 4:07–CV–00061 CAS, at*2 (E.D.Mo. Feb. 22, 2008)
(imposing a compliance fine of $100 per day on the defendant's president).
Pursuant to its Order of August 21, 2012 [ECF No. 14], the Court held a show cause hearing
on the motion for contempt on October 5, 2012. Prior to the hearing Plaintiffs submitted an affidavit
[ECF No. 15] verifying personal service by private process server on Defendant of the Court's show
cause order. Defendant did not appear at the hearing.
On the basis of the record before it, the Court finds Defendant in contempt and will award
sanctions against Defendant in the form of a compliance fine and attorney's fees and costs for the
filing of the motions for default order of accounting and contempt.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Contempt [12] is GRANTED and
Defendant Marshall Contracting, LLC, is found in CONTEMPT of this Court. As sanctioned,
Defendant is liable for a fine of $200.00 per day for every day after this date that Defendant fails to
submit its records for inspection or otherwise comply with this Court's Orders and Plaintiffs'
discovery requests. Plaintiffs' attorney shall contact the Court if and when Defendant produces its
records for inspection.
IT IS FURTHER ORDERED that Plaintiffs' request for an award of attorneys' fees and
costs of its motions for a default order of accounting [ECF No. 6] and contempt [ECF No. 12] is
GRANTED. Counsel for Plaintiffs is granted until October 12, 2012 to file an affidavit of fees and
costs for the Court’s consideration.
IT IS FURTHER ORDERED that Plaintiffs' oral motion for a writ of body attachment is
denied without prejudice to refiling in the event of Defendant's continued non-compliance.
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IT IS FURTHER ORDERED that Plaintiffs shall effect service of this Order and the
Court's Order of June 1, 2012, [ECF No. 11] on Defendant by whatever means they believe to be
most effective, and shall promptly file a certificate of such service. Failure to show adequate
evidence of prompt service may result in the continuation or cancellation of the compliance fine
ordered herein.
Dated this 5th day of October, 2012.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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