Cement Masons Local 527 et al v. Palazzolo Construction, LLC,

Filing 69

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs Motion for Leave to File Instanter Plaintiffs Memorandum in Support of Body Attachment and Affidavit for Attorneys Fees is GRANTED. [Doc. 68 .] IT IS FURTHER ORDERED that the Courts oral or der granting Plaintiffs request for body attachment continues to be HELD IN ABEYANCE. Plaintiffs counsel shall, within sixty (60) days of this Order, submit a supplemental memorandum to the Court confirming that John Palazzolo continues to be the app ropriate individual to bring before the Court for personal contempt and on behalf of Defendant. Plaintiffs supplemental memorandum shall confirm whether the Courts Orders dated May 4, 2018 and July 27, 2018 were personally served on Mr. Palazzolo. IT IS FURTHER ORDERED that Defendant Palazzolo Construction is liable for Plaintiffs attorneys fees and costs to Plaintiffs for having to bring its motion to compel and for contempt in the amount of $1,650.76. IT IS FURTHER ORDERED that Plaintiffs shall effect service of this Order on Defendant and on Mr. Palazzolo by whatever means they believe to be most effective, and shall promptly file a certificate of such service. IT IS FURTHER ORDERED that the Clerk of Court shall send a copy of this Order to Defendant Palazzolo Construction, LLC at 11050 Mars Lane, Maryland Heights, Missouri 63042 via UPS Signature Required, in addition to service via regular mail. (cc: a copy of this Order was mailed to the Defendant Palazzolo Construction, LLC at 11050 Mars Lane, Maryland Heights, Missouri 63042 via UPS Signature Required and via regular mail this day.). Signed by Magistrate Judge Nannette A. Baker on 11/25/2020. (AAT)

Case: 4:16-cv-01437-NAB Doc. #: 69 Filed: 11/25/20 Page: 1 of 6 PageID #: 275

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CEMENT MASONS LOCAL 527, et al.,
Plaintiffs,
v.
PALAZZOLO CONSTRUCTION, LLC,
Defendant.

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Case No. 4:16-CV-1437 NAB

MEMORANDUM AND ORDER
This closed matter is before the Court on Plaintiffs’ post-judgment Motion for Contempt
and Motion for Leave to File Instanter Plaintiffs’ Memorandum in Support of Body Attachment
and Affidavit for Attorneys’ Fees. [Doc. 68.]
I.

Background
Plaintiffs brought this action under the Employee Retirement Income Security Act of

1974 (ERISA), 29 U.S.C. §§ 1001 et seq., and the Labor Management Relations Act (LMRA),
29 U.S.C. §§ 141 et seq., seeking to enforce a Collective Bargaining Agreement (CBA) between
Plaintiff Cement Masons Local 527 and Defendant Palazzolo Construction, LLC. [Doc. 1.] Two
separate judgments totaling $7,699.91 were entered against Defendant. [Docs. 26, 48.] The Court
subsequently granted Plaintiffs’ motion to compel Defendant to produce documents and appear
for a deposition to aid in post-judgment discovery. [Doc. 56.] Defendant did not produce the
documents or appear for a deposition as ordered by the Court. Plaintiffs then filed a Motion for
Contempt. [Doc. 57.] Defendant did not oppose or otherwise respond to the motion.
On July 23, 2018, the Court held a hearing on Plaintiffs’ post-judgment Motion for
Contempt. [Doc. 64.] Defendant failed to appear at the hearing. Based on the written motion and

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Plaintiffs’ arguments presented at the hearing, the Court granted Plaintiffs’ motion for contempt
on the record on July 23, 2018, and then issued a written Order providing additional details on
July 27, 2018. [Doc. 65.]
Pursuant to the July 27, 2018 Order, Defendant Palazzolo Construction, LLC was found
to be in contempt of this Court, Plaintiffs’ request for an award of attorney’s fees and costs
incurred in bringing their motion for contempt was granted, and Plaintiffs’ request for body
attachment was granted. The Court granted Plaintiffs leave until July 30, 2018 to file an affidavit
of fees and costs for the Court’s consideration. The Court also ordered Plaintiffs’ counsel to
submit to the Court documentation that clearly identifies the individual that Plaintiffs seek to
bring before the Court for personal contempt and his or her relationship to the Defendant no later
than July 30, 2018. [Doc. 65.]
The July 27, 2018 Order gave Defendant the opportunity to purge itself of the contempt
by (1) submitting to a deposition by Plaintiff’s counsel within fourteen (14) business days of the
date of the Order; and (2) submitting the documents previously ordered produced within fourteen
(14) business days of the Order. [Doc. 65.] Defendant did not avail itself of this opportunity to
purge the contempt order.
II.

Plaintiffs’ Motion for Leave to File Instanter Plaintiffs’ Memorandum in
Support of Body Attachment and Affidavit for Attorneys’ Fees
On October 10, 2018, Plaintiffs filed a Motion for Leave to File Instanter Plaintiffs’

Memorandum in Support of Body Attachment and Affidavit for Attorneys’ Fees. [Doc. 68.] In
support of the motion, Plaintiffs state that counsel was out of the country on the date of issuance
of the Court’s Order instructing Plaintiffs to file the aforementioned documentation, and counsel
inadvertently overlooked the issuance of that Order. In further support of the motion, Plaintiffs
file an Affidavit of Service of the Court’s May 4, 2018 and July 27, 2018 orders, a Memorandum
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in Support of Body Attachment, and Affidavit of Fees and Costs. Defendant has not opposed or
otherwise responded to Plaintiffs’ motion. Accordingly, in the interest of full consideration of the
issues that remain open in the Court’s July 27, 2018 contempt order, Plaintiffs’ Motion for Leave
to File Instanter Plaintiffs’ Memorandum in Support of Body Attachment and Affidavit for
Attorneys’ Fees is hereby GRANTED. [Doc. 68.] Accordingly, the Court will now consider
Plaintiffs’ submissions.
III.

Plaintiffs’ Memorandum in Support of Body Attachment
In Plaintiffs’ Memorandum in Support of Body Attachment, Plaintiffs state they seek the

body attachment of John Palazzolo, the principal of Defendant Palazzolo Construction, LLC.
[Doc. 68-2.] Plaintiffs include Defendant’s Articles of Organization reflecting Mr. Palazzolo’s
address and relationship to Defendant. [Doc. 68-3.] Plaintiffs further state that “as reflected on
the accompanying affidavit, John Palazzolo was served at that address with copies of this Court’s
May 4, 2018 and July 27, 2018 Orders.” [Doc. 68-2.] The “accompanying affidavit” filed is the
Affidavit of Isaiah Thomas. [Doc. 68-4.] Mr. Thomas attests that on October 1, 2018, “I did
serve a Memorandum and Order. Re: 4:15-cv-1437 NAB on John Palazzolo; Palazzolo
Construction, LLC… By personally serving John Palazzolo.” Mr. Thomas’s affidavit does not
indicate which order was personally served on Mr. Palazzolo. The Court ordered Plaintiffs to
effect personal service of both the May 4, 2018 Order [Doc. 56] and the July 27, 2018 Order
[Doc. 65] on Defendant and the company representative that Plaintiffs wish to bring before the
Court, and to file evidence of the certificate of service. Taking into consideration the relief
sought, the Court believes further evidence of personal service of both orders on Mr. Palazzolo is
appropriate.

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In addition, the Court recognizes that significant time has passed since Plaintiffs filed the
present submissions. A supplemental filing by Plaintiffs will allow the Court to confirm that
since the filing of Plaintiffs’ original motion for contempt and memorandum in support of body
attachment, Defendant has continued its non-compliance with the Court’s Orders, and Mr.
Palazzolo continues to be the appropriate person to be haled into Court to show cause for
Defendant’s contempt.
Assuming Plaintiffs can provide assurances regarding the personal service of the
aforementioned Orders on Defendant and its personal representative, the Court is inclined to
issue the writ of body attachment and order the United States Marshals Service to bring Mr.
Palazzolo before this Court for an examination under oath and to show cause why he should not
be incarcerated for failure to comply with the Court’s orders. However, the Court recognizes that
the spread of the COVID-19 virus has created extenuating circumstances such that an in-person
civil contempt proceeding may not be reasonably practicable during this period of national
emergency.
In light of the foregoing considerations, the Court will continue to hold the July 23, 2018
oral order granting Plaintiffs’ request for body attachment in abeyance. Plaintiffs are instructed
to serve this Order on Defendant and on John Palazzolo at the physical address where Mr.
Palazzolo may be found for execution of a writ of body attachment. Plaintiffs shall promptly file
evidence of service of this Order, and the prior orders as discussed above, as well as
confirmation of Defendant’s continued non-compliance with the Court’s prior orders.
IV.

Plaintiffs’ Affidavit for Attorneys’ Fees

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The Court ordered Plaintiffs to file an affidavit for fees and costs in support of the award
granted in the July 27, 2018 Order. The Court is in receipt of the Affidavit of Greg A. Campbell,
counsel for Plaintiffs. 1 [Doc. 68-1.]
Counsel states that his law firm expended a total of 8.3 hours related to efforts to compel
Defendant to submit to a deposition in 2018. Counsel states that the hours and rates were as
follows: As a partner, his services were billed to clients at $200 per hour, and he expended 2.8
hours. His associate’s services were billed to clients at $190 per hour, and his associate expended
5.1 hours. His paralegal’s services were billed to clients at $110 per hour, and his paralegal
expended .4 hours. Affidavit of Greg A. Campbell, Doc. 68-1 at ¶¶ 2-3. The reasonable and
necessary services performed included “review of documents, telephone calls and emails,
attorney conferences, correspondence; preparing for deposition; making record of deposition
non-appearance; drafting and filing of contempt documents; attending contempt hearing;
preparing affidavits and related documents.” Id. at ¶ 3.
Counsel states that Plaintiffs have or will be billed for $1,569.00 for legal services
provided and $81.76 for service of Court Orders by special process server. Plaintiffs seek and
request a total of $1,650.76 in legal fees. Id. at ¶¶ 4-5. The Court finds such fees to be
reasonable.
V.

Conclusion
Accordingly,

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The Court is also in receipt of the Affidavit of Attorneys’ Fees filed by associate and affiant Nathan Gilbert on July
30, 2018. [Doc. 66.] Plaintiffs’ motion for leave filed on October 10, 2018 includes the present Affidavit of Greg A.
Campbell, who was out of the country at the time of the filing of Mr. Gilbert’s affidavit. Based on a comparison of
the two affidavits and a review of Plaintiffs’ motion for leave, the Court believes that Plaintiffs intend for the
Affidavit of Greg A. Campbell to supersede Mr. Gilbert’s Affidavit and will consider only Mr. Campbell’s Affidavit
in awarding fees.

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IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to File Instanter
Plaintiffs’ Memorandum in Support of Body Attachment and Affidavit for Attorneys’ Fees is
GRANTED. [Doc. 68.]
IT IS FURTHER ORDERED that the Court’s oral order granting Plaintiffs’ request for
body attachment continues to be HELD IN ABEYANCE. Plaintiffs’ counsel shall, within sixty
(60) days of this Order, submit a supplemental memorandum to the Court confirming that John
Palazzolo continues to be the appropriate individual to bring before the Court for personal
contempt and on behalf of Defendant. Plaintiffs’ supplemental memorandum shall confirm
whether the Court’s Orders dated May 4, 2018 and July 27, 2018 were personally served on Mr.
Palazzolo.
IT IS FURTHER ORDERED that Defendant Palazzolo Construction is liable for
Plaintiffs’ attorneys fees and costs to Plaintiffs for having to bring its motion to compel and for
contempt in the amount of $1,650.76.
IT IS FURTHER ORDERED that Plaintiffs shall effect service of this Order on
Defendant and on Mr. Palazzolo by whatever means they believe to be most effective, and shall
promptly file a certificate of such service.
IT IS FURTHER ORDERED that the Clerk of Court shall send a copy of this Order to
Defendant Palazzolo Construction, LLC at 11050 Mars Lane, Maryland Heights, Missouri 63042
via UPS Signature Required, in addition to service via regular mail.
Dated this 25th day of November, 2020.
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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