Greater St. Louis Construction Laborers Welfare Fund et al v. Ability Building and Restoration, LLC

Filing 37

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that a hearing is set for Wednesday, March 4, 2015 at 11:00 a.m. in Courtroom lOS of the Thomas F. Eagleton United States Courthouse, at which Defendant Ability Building & Restoration; LLC and its repres entative Ms. Mays-Adkins may show cause why civil contempt sanctions should not be imposed against them for failure to comply with this Court's Orders of December 11, 2014 and January 28, 2015. Because incarceration is a possible civil contempt sanction, Ms. Mays-Adkins has the right to representation by counsel. Failure to appear for the hearing as ordered may subject Ms. Mays-Adkins to arrest by the United States Marshals Service. (SEE ORDER FOR COMPLETE DETAILS) (In Court Hearing set for 3/4/2015 11:00 AM in Courtroom 10S before District Judge Ronnie L. White.) Signed by District Judge Ronnie L. White on 2/12/2015. (NEB)

UNITED ST ATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GREATER ST. LOUIS CONSTRUCTION
LABORERS WELFARE FUND, et al. ,
Plaintiffs,

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v.

ABILITY BUILDING & RESTORATION,
LLC,
Defendant.

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No. 4:14-CV-63 RLW

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MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs' Motion for Contempt (ECF No. 31 ), filed on
January 28, 2015 . Plaintiffs' Motion is accompanied by an affidavit of counsel.
Background

Plaintiffs filed this action under Section 301 of the Labor Management Relations Act of
1947, as amended ("LMRA"), 29 U.S.C. §185, and Section 502 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), 29 U.S.C. §1132. The Complaint asserted
that Defendant Ability Building & Restoration, LLC was bound by the terms of collective
bargaining agreements, which require monthly payments to Welfare, Pensions, and Training
Funds, which are employee benefit plans within the meaning of ERISA.

Plaintiffs alleged that

Defendant failed to submit its reports and to pay its contributions for the months of June through
December 2011 and September through December 2014.

Plaintiffs requested a financial

examination for the period of December 22, 2010 to date and that they are entitled to interest,
liquidated damages, costs, accounting fees, and reasonable attorneys ' fees. On October 7, 2014,

this Court entered an order granting Plaintiffs' Motion for a Default Judgment in the amount of
$43,385.51, including attorneys' fees, accounting fees, and costs.
On December 11, 2014, the Court granted Plaintiffs' Motion to Compel Kayla MaysAdkins, representative for Ability Building & Restoration, LLC, to appear for a post-judgment
deposition and produce records requested in Plaintiffs' Notice of Deposition at the offices of
Plaintiffs' counsel on January 7, 2015 at 10:00 a.m.

(ECF No. 30).

Plaintiffs previously

scheduled Ms. Mays-Adkins' deposition on December 2, 2014 at 10:30 a.m. but she failed to
appear.
On January 28, 2015, Plaintiffs filed a Motion for Contempt stating that Ms. MaysAdkins had failed to appear for her post-judgment deposition. (ECF No. 31 ). Plaintiffs requested
a monetary compliance fine of $200.00 for each day of Defendant's non-compliance, as well as
Plaintiffs' attorneys' fees and costs incurred in bringing the Motion for Contempt. On January
28, 2015, the Court entered a show cause order for Ms. Mays-Adkins to respond to the Motion
for Contempt no later than Friday, February 6, 2015 . (ECF No. 33). The Court has not received
any response from Ms. Mays-Adkins or Defendant.
Discussion

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
Const. Laborers Welfare Fund v. Marshall Contracting, LLC, 2012 WL 4759772, at *1 (E.D.
Mo. Oct. 5, 2012) (citing Greater St. Louis Construction Laborers Welfare Fund v. Aura
Contracting, LLC, 2012 WL 2684864, at *1 (E.D. Mo. July 6, 2012)). Appropriate sanctions
include monetary fines and the issuance of a writ of body attachment for incarceration until the

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contempt is purged. ld.(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. Marshall Contracting,
2012 WL 4759772, 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. Id. 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, 200- ) (citations omitted).
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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., Marshall Contracting, 2012 WL
4759772, at * 1 (and cases cited therein); Greater St. Louis Const. Laborers Welfare Fund v.

Town & Country Masonry & Tuckpointing, LLC, No. 4:13-CV-696-JAR, 2013 WL 5436645, at
*1 (E.D. Mo. Sept. 27, 2013)($200 per day fine). Incarceration has also 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; Greater St. Louis Construction Laborers Welfare Fund v.
Marvin Steele Enters. , No. 4:96-CV-1073 ERW, at *1 (E.D. Mo. Mar. 21, 1997) (ordering that a
bench warrant issue for the arrest of the individual defendants). In addition, Courts in this
District have 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 Vicinity v. DLR Opportunities, Inc., No. 4:07-CV-00061 CAS, at *2

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(E.D. Mo. Feb. 22, 2008) (imposing a compliance fine of $100 per day on the defendant's
president).
Here, it is undisputed that Ability Building & Restoration, LLC's representative, Ms.
Mays-Adkins, did not appear for her deposition or produce records as ordered. At this point, the
burden shifts to Defendant Ability Building & Restoration, LLC and Ms. Mays-Adkins to show
an inability to comply with the Court's order. Chicago Truck Drivers v. Bhd. Labor Leasing,
207 F.3d 500, 505 (8th Cir. 2000). The Court will give Ms. Mays-Adkins and Defendant one
more opportunity to comply with this Court's Order and to provide the requested documentation
to Plaintiffs' counsel, or to show that such compliance is not possible. The Court will set a
hearing on Plaintiffs' Motion for Contempt.

Ms. Mays-Adkins, or another designated

representative from Defendant, shall appear on March 4, 2015 and shall provide the
documentation requested by Plaintiffs' counsel in their Notice of Deposition. See Notice of
Deposition, ECF No. 28-2.
Accordingly,
IT IS HEREBY ORDERED that a hearing is set for Wednesday, March 4, 2015 at
11:00 a.m. in Courtroom lOS of the Thomas F. Eagleton United States

Courthous~,

at which

Defendant Ability Building & Restoration; LLC and its representative Ms. Mays-Adkins may
show cause why civil contempt sanctions should not be imposed against them for failure to
comply with this Court's Orders of December 11, 2014 and January 28, 2015.

Because

incarceration is a possible civil contempt sanction, Ms. Mays-Adkins has the right to
representation by counsel. Failure to appear for the hearing as ordered may subject Ms. MaysAdkins to arrest by the United States Marshals Service.

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IT IS FURTHER ORDERED that Ms. Mays-Adkins shall bring with her to the hearing

on March 4, 2015 all of the documents and records listed in Plaintiffs' Notice of Deposition
(ECF No. 28-2).
IT IS FURTHER ORDERED that the United States Marshals Service is directed to

serve Kayla Mays-Adkins, representative of Ability Building & Restoration, LLC, 5857 Julian,
St. Louis, MO 63122 with this Memorandum and Order, Plaintiffs' Motion for Contempt [ECF
No. 31], Memorandum in Support of Motion for Contempt [ECF No. 32], Plaintiffs' Motion to
Compel [ECF No. 28] , and Plaintiffs' Memorandum in Support of their Motion to Compel [ECF
No. 29],

Dated this 12th day of February, 2015 .

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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