Greater St. Louis Construction Laborers Welfare Fund et al v. Mo Main Construction, LLC

Filing 37

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion for Contempt (Doc. 27) is GRANTED and Defendant Mo Main Construction, 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. Plaintiffs' attorney shall contact the Court if and when Defendant produces its records for inspection. Signed by District Judge John A. Ross on 1/12/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GREATER ST. LOUIS CONSTRUCTION
LABORERS WELFARE FUND, et al.,
Plaintiffs,
vs.
MO MAIN CONSTRUCTION, LLC,
Defendant.

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Case No. 4:14-CV-2113-JAR

MEMORANDUM AND ORDER
This matter came before the Court for hearing on Plaintiffs’ Motion for Contempt (Doc.
27), arising from Defendant Mo Main Construction, LLC’s failure to comply with a court order
compelling Defendant to provide the payroll registers and other documents needed to perform an
audit for the period of March 1, 2013 to July 14, 2015 (Doc. 26). Plaintiffs appear by counsel.
Despite proper notice and personal service on Defendant’s registered agent and signatory to the
applicable Collective Bargaining Agreement, Michael Mainor, 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
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
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. 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, 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., Marshall Contracting, 2012 WL
4759772, at *1 (and cases cited therein). 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 (E.D. Mo. Feb.
22, 2008) (imposing a compliance fine of $100 per day on the defendant's president).
Pursuant to its Order of November 30, 2015 (Doc. 33), the Court held a show cause
hearing on the motion for contempt on January 11, 2016. Prior to the hearing, Plaintiffs

submitted a notice (Doc. 34) verifying personal service by a 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 monetary compliance fine.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Contempt (Doc. 27) is
GRANTED and Defendant Mo Main Construction, 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. Plaintiffs' attorney shall contact the Court if and when Defendant produces its
records for inspection.

Dated this 12th day of January, 2016.

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JOHN A. ROSS
UNITED STATES DISTRICT JUDGE