Walsh v. Express Auto and Tire LLC et al
Filing
27
Memorandum Opinion and Order: Petitioner's Motion for Adjudication of Civil Contempt and an Award of Attorneys Fees (Doc. No. 26 ) is GRANTED, as follows. The Court finds that Respondents are in civil contempt for failing to comply wi th this Court's April 19, 2022 Order. The Secretary is hereby awarded reasonable attorney's fees in the amount of $2,000.00. Respondents are ORDERED to pay this amount to the Secretary within thirty (30) days of the date of this Orde r. The Court will close the instant case but retains jurisdiction to enforce this Order. If Respondents fail to achieve compliance with this Order within thirty (30) days of the date of service thereof, Respondents shall be ordered to appear before this Court to present evidence and testimony why they have failed to comply with this Order. Respondents are cautioned that failure to comply with this Order may result in the imposition of additional sanctions, up to and including an additional da ily coercive fine and/or imprisonment. The Clerk's Office is directed to serve Respondents with a copy of this Memorandum Opinion & Order via regular mail at 212 Goredon Dr., Chardon, OH 44024-1514. In addition, the Clerk of Court is ordered to email a copy of this Order to Respondent Pierce at expressautomiddlefield@gmail.com and logicoatroofing@gmail.com. Judge Pamela A. Barker on 1/18/2023. (P,K)
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 1 of 14. PageID #: 125
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Martin J. Walsh,
Secretary of Labor
-vs-
Case No. 1:22mc00011
Petitioner,
Express Auto and Tire, LLC,
Et al.,
JUDGE PAMELA A. BARKER
MEMORANDUM OPINION AND
ORDER OF CASE DISMISSAL
Respondents.
This matter is before the Court upon the Motion of Petitioner Martin J. Walsh, Secretary of
Labor (“Secretary”) for Attorney Fees and Adjudication of Civil Contempt, filed December 16, 2022.
(Doc. No. 26.) Respondents Express Auto and Tire LLC (“Express Auto”) and Patrick S. Pierce
(“Pierce”) did not file a response. For the following reasons, the Petitioner’s Motion is GRANTED,
as set forth herein.
I.
Background
The Petition alleges the following facts. On November 3, 2021, the United States Department
of Labor’s Wage and Hour Division (“WHD”) began an investigation into Express Auto’s
compliance with the Fair Labor Standards Act (“FLSA”). (Doc. No. 1 at 3.) WHD Investigator
Stephen Banig contacted Express Auto’s registered representative, Pierce, by phone and email and
requested from him Express Auto’s payroll documents. (Id.) Pierce did not respond to Investigator
Banig’s requests. (Id.) On November 29, 2021, WHD’s Assistant District Director for the Cleveland
Area Office, Nikolai Bogomolov, emailed and mailed Express Auto and Pierce a final written notice
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 2 of 14. PageID #: 126
to submit the requested information and records by December 6, 2021. (Id.) Pierce did not comply
with the request. (Id.)
On December 21, 2021, WHD’s Regional Administrator, Michael Lazzeri, issued a subpoena
duces tecum directing Pierce to provide the requested payroll documents to Assistant District Director
Bogomolov by January 4, 2022. (Id. at 4.) Investigator Banig hand-delivered the subpoena to Pierce
at Express Auto the next day, but Pierce did not comply. (Id.) On January 26, 2022, the Secretary
sent a letter via email and mail requesting compliance with the subpoena by February 9, 2022. (Id.)
Once again, Pierce did not comply. (Id.)
On February 14, 2022, the Secretary filed a Petition to compel Express Auto and Pierce to
comply with the subpoena. 1 (Doc. No. 1.) The Court referred the Secretary’s Petition to Magistrate
Judge Thomas Parker for preparation of a Report and Recommendation. (Doc. No. 3.) Magistrate
Judge Parker scheduled a hearing for March 21, 2022 and ordered Pierce and an authorized
representative for Express Auto to appear in person and show cause why the subpoena should not be
enforced by a court order. (Doc. No. 4.) On March 4, 2022, the Secretary filed notices from the
United Parcel Service (“UPS”) indicating that the order scheduling the hearing and ordering Pierce
and Express Auto to appear were received and signed for by Pierce. (Doc. No. 5.)
Magistrate Judge Parker conducted the hearing on March 21, 2022. See Minutes of
Proceedings dated March 21, 2022. Neither Pierce nor a representative for Express Auto appeared.
Id. The Secretary indicated that he had not heard from Pierce. Id. Investigator Banig was also present
In support of his Petition, the Secretary attached: (1) State of Ohio Articles of Organization for Express Auto; (2)
Investigator Banig’s sworn declaration; (3) emails sent by Investigator Banig to Pierce on November 9, 18, and 19, 2021;
(4) Administrative District Director Bogomolov’s sworn declaration and the November 29, 2021 written notice; (5) the
subpoena duces tecum; and (6) the January 26, 2022 letter from the Secretary. (Doc. Nos. 1-1 through 1-8.)
1
2
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 3 of 14. PageID #: 127
and reiterated his interactions with Pierce to obtain Express Auto’s payroll records. Id. Investigator
Banig added that what prompted the investigation into Express Auto’s compliance with the FLSA
was a claim of unpaid wages. Id.
On March 24, 2022, the Magistrate Judge issued a Report and Recommendation, in which he
recommended that (1) the Petition be granted; (2) Pierce (as registered agent for Express Auto) be
ordered to comply with the subpoena duces tecum issued by the Secretary within seven (7) days of
this Court’s adoption of the Report & Recommendation; (3) the statute of limitations under the FLSA
be tolled back to the date of service of the subpoena; and (4) Pierce be held in contempt should the
Court adopt the Report & Recommendation and Pierce fail to comply with the subpoena. (Doc. No.
7.) Objections to the Report and Recommendation were to be filed within 14 days of service. (Id. at
p. 11.)
On March 31, 2022, the Secretary filed a Declaration that the Report & Recommendation had
been personally served on Pierce on March 29, 2022. (Doc. No. 9.) No objections were filed by
either the Secretary or Respondents.
On April 19, 2022, this Court issued a Memorandum Opinion & Order adopting the Report
& Recommendation in part, as follows:
This Court has … carefully and thoroughly reviewed the Report and Recommendation
and agrees that the December 21, 2021 subpoena duces tecum is enforceable. The
Court further agrees that Pierce (as registered agent of Express Auto) should be
ordered to comply with the subpoena but hereby orders that he shall produce the
requested documents within fourteen (14) days from the date of this Order. The Court
also agrees, in the absence of any Objections and for the reasons set forth in the Report
& Recommendation, that the FLSA statute of limitations shall be equitably tolled,
dating back to the time Pierce was served with the administrative subpoena, i.e.,
December 22, 2021. The Court declines to make any findings regarding contempt at
this time and, instead, will address the issue of contempt in the event that Pierce fails
to comply with the subpoena as directed herein.
3
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 4 of 14. PageID #: 128
(Doc. No. 10 at p. 4.) The Court ordered the Clerk to (1) mail copies of the Memorandum Opinion
& Order to Pierce through the United Parcel Service, with signature receipt required, to all three of
his addresses on record; and (2) email a copy of the Memorandum Opinion & Order to Pierce at
expressautomiddlefield@gmail.com. (Id. at p. 5.) In addition, the Court ordered the Secretary to
personally serve Pierce with a copy of the Memorandum Opinion & Order and file a certification
with the Court upon having done so. (Id.)
The docket reflects that, after several unsuccessful efforts to personally serve Pierce, 2 the
Secretary filed a Notice indicating that Pierce was personally served with the Court’s April 19, 2022
Memorandum Opinion & Order on June 17, 2022. (Doc. No. 16.)
On September 1, 2022, the Secretary filed a Motion for Civil Contempt and a Daily Coercive
Fine, in which he indicated that Respondents have failed to comply with this Court’s Memorandum
Opinion & Order. (Doc. No. 19.) The Secretary argued that Respondents should be held in civil
contempt, ordered to produce all documents requested in the administrative subpoena within five
calendar days, and subjected to a coercive fine of $250 per day for each day that they fail to comply.
(Id. at p. 5.) No response was filed.
The Court scheduled an in-person hearing on the Secretary’s Motion on October 31, 2022. In
light of the difficulties the Secretary had encountered in attempting to successfully serve Respondents
with court filings, the Court directed the U.S. Marshals to serve Respondents with copies of both the
Secretary’s Motion for Civil Contempt and this Court’s Order setting the October 31, 2022 hearing.
The docket also reflects that, of the three copies of this Court’s Memorandum Opinion & Order that were mailed to
Pierce by the Clerk of Court, one was returned as “refused” and another returned because it was “not picked up.” (Doc.
Nos. 11, 12.)
2
4
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 5 of 14. PageID #: 129
(Doc. No. 20.) After several unsuccessful attempts, the Marshals were ultimately able to serve
Respondent Pierce by placing copies of the Motion and Order noted above, in Pierce’s mailbox at his
Chardon, Ohio address. (Doc. No. 21.)
The Court proceeded to conduct the in-person hearing on October 31, 2022. The hearing was
attended by counsel for the Secretary, Wage and Hour Investigator Stephen Banig, and Respondent
Pierce. See Non-Doc Order dated October 31, 2022. During the hearing, Respondent Pierce
confirmed that he had received both the Motion for Civil Contempt (Doc. No. 19) and Order setting
Hearing (Doc. No. 20). The parties advised the Court that they had reached an agreement for
Respondent to (1) meet with Mr. Banig on November 10, 2022 at 12:30 p.m. at the Office of the
Wage and Hour Division at the John S. Seiberling Federal Building, 2 S. Main Street, Akron, Ohio;
and (2) produce the documents requested in the administrative subpoena issued by the Petitioner in
December 2021. Respondent confirmed the above on the record and indicated that it was his intent
to cooperate with the Petitioner going forward.
The Court advised Respondent that the consequences for failing to cooperate with Petitioner
could include a finding of civil contempt, imposition of a daily coercive fine, an Order requiring him
to reimburse Petitioner for costs associated with enforcing the subpoena, and, potentially,
imprisonment. Respondent indicated that he understood the potential consequences of failing to
cooperate. Counsel for Petitioner suggested that, if Respondent met with Mr. Banig and produced
the requested documents as set forth above, Petitioner would consider withdrawing his Motion for
Civil Contempt (Doc. No. 19.) In light of the above, and at the Petitioner's request, the Court stayed
a determination on the Petitioner Motion for Civil Contempt (Doc. No. 19) and stated that it would
reconvene the hearing in this matter on Friday, December 16, 2022, if necessary.
5
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 6 of 14. PageID #: 130
On December 13, 2022, Petitioner filed an “Update on Status of Motion for Civil Contempt.”
(Doc. No. 24.) Therein, Petitioner stated that Respondents “have provided sufficient documentation
to resolve the Wage and Hour investigation underlying the enforcement of this subpoena and motion
for civil contempt.” (Id.) Thus, Petitioner indicted that the underlying issues raised in Petitioner’s
Motion for Civil Contempt and a Daily Coercive Fine (Doc. No. 19) had been resolved. Petitioner
also stated, however, that he intended to seek costs and attorney’s fees from Respondent Pierce. 3
Petitioner stated that, if no agreement could be reached with Respondent, he intended to file a Motion
for Attorney’s Fees and Costs prior to the December 16, 2022 hearing, and requested that the hearing
go forward as to this yet-to-be-filed motion.
On December 14, 2022, this Court issued an Order denying Petitioner’s Motion for Civil
Contempt and a Daily Coercive Fine (Doc. No. 19) as moot. (Doc. No. 25.) The Court denied
Petitioner’s request to proceed with a hearing on December 16, 2022 on the issue of Petitioner’s
request for Attorney’s Fees and Costs because Respondent would not have had a sufficient
opportunity to respond to that request. Indeed, given Respondent Pierce’s pro se status, the Court
noted that “it is not even certain that Pierce can be served with Petitioner’s anticipated Motion prior
to the December 16, 2022 hearing.” (Id. at p. 2.) Accordingly, the hearing set for December 16, 2022
was cancelled. Lastly, the Court advised that “if Petitioner and Respondent are unable to reach a
resolution as to the issue of attorney’s fees and costs, Petitioner may file a Motion seeking the same
and Respondent shall have fourteen (14) days to file a Response.” (Id.)
3
Petitioner did not seek attorney’s fees and costs in his September 2022 Motion for Civil Contempt. (Doc. No. 19.)
Rather, in that Motion, Petitioner stated, in a footnote, that he “reserves the right to seek further sanctions, such as an
award of reasonable attorney fees and costs at a later time.” (Id. at p. 5, fn 1.)
6
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 7 of 14. PageID #: 131
On December 16, 2022, Petitioner filed the instant Motion for Adjudication of Civil Contempt
and Award of Reasonable Attorney’s Fees. (Doc. No. 26.) In his Certificate of Service, Petitioner
states that he served a copy of the Motion to both Respondents via email addresses provided by
Respondent Pierce. (Id. at p. 3.) Respondents did not file a response to Petitioner’s Motion.
Upon careful review, the Court determines that an additional hearing is not necessary.
II.
Legal Standard
The Court has the authority to assure compliance with its orders through civil contempt. See
S.E.C. v. Dollar Gen. Corp., 378 Fed. Appx. 511, 516 (6th Cir. 2010) (quoting Shillitani v. United
States, 384 U.S. 364, 370 (1966)) (“There can be no question that courts have inherent power to
enforce compliance with their lawful orders through civil contempt.”) “Contempt proceedings
enforce the message that court orders and judgments are to be complied with in a prompt manner.”
Electrical Workers Pension Trust Fund of Local Union # 58, IBEW v. Gary's Elec. Serv. Co., 340
F.3d 373, 378 (6th Cir. 2003).
The Sixth Circuit has held that “[a] litigant may be held in contempt if his adversary shows
by clear and convincing evidence that ‘he [violated] a definite and specific order of the court requiring
him to perform or refrain from performing a particular act or acts with knowledge of the court's
order.’” NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987) (quoting SEC v. First
Fin. Grp. of Tex., Inc., 659 F.2d 660, 669 (5th Cir. 1981)). See also Gascho v. Global Fitness
Holdings, LLC, 875 F.3d 795, 800 (6th Cir. 2017). “Contempt cannot be based on ‘a decree too
vague to be understood,’ but is instead reserved for those who ‘fully understand[ ]’ the meaning of a
court order and yet ‘choose[ ] to ignore its mandate.’” Gascho, 875 F.3d at 800 (quoting Int'l
Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76 (1967)).
7
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 8 of 14. PageID #: 132
Accordingly, when deciding whether a court order is “definite and specific,” courts must construe
any ambiguity in favor of the party charged with contempt. Grace v. Ctr. for Auto Safety, 72 F.3d
1236, 1241 (6th Cir. 1996).
Once a prima facie case of contempt is established, “the burden shifts to the contemnor who
may defend by coming forward with evidence showing that he is presently unable to comply with the
court's order.” Gary's Elec. Serv. Co., 340 F.3d at 379. To satisfy this burden, “a defendant must
show categorically and in detail why he or she is unable to comply with the court's order.” Rolex
Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996) (quotation omitted). The court must
also consider whether the party “took all reasonable steps within [his] power to comply with the
court's order.” Glover v. Johnson, 934 F.2d 703, 708 (6th Cir. 1991) (citations omitted).
“A decision on a contempt petition is within the sound discretion of the trial court,” and “the
power ‘to punish for contempts’ should not be used lightly....” Gary's Elec. Serv. Co., 340 F.3d at
387 (6th Cir. 2003) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911)). See
also Gascho, 875 F.3d at 799 (noting that “[c]ontempt is serious” and “a measure of last resort, not
first resort.”) This discretion includes the power to frame sanctions so that they fit the violation in
question. See Adcor Indus. v. Bevcorp, LLC, 411 F. Supp. 2d 778, 794 (N.D. Ohio 2005) (citing
Gary’s Elec. Serv. Co., 340 F.3d at 385).
III.
Analysis
In his Motion, the Secretary argues that Respondents should be held in civil contempt because
this Court’s April 19, 2022 Memorandum Opinion & Order (hereinafter “April 19, 2022 Order” or
“Order”) was definite and specific, Respondents had knowledge of the Order, and Respondents
8
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 9 of 14. PageID #: 133
clearly violated it by failing to timely comply with the administrative subpoena at issue. (Doc. No.
26-1 at p. 3.)
The Court agrees. As set forth above, this Court’s April 19, 2022 Order clearly found that the
December 2021 administrative subpoena is enforceable and ordered Respondents to “produce the
requested documents within fourteen days of the date of this Order.” (Doc. No. 10 at p. 4.) To ensure
that Respondents had knowledge of the Order, the Court sent it via certified mail to three separate
addresses on record for the Respondents and, further, ordered the Secretary to personally serve a copy
on Pierce. (Id. at p. 5.) The docket reflects that the Secretary personally served Pierce a copy of the
April 19, 2022 Order on June 17, 2022. (Doc. No. 16.)
The Court further finds that Respondents violated the April 19, 2022 Order by failing to timely
produce the documents requested in the administrative subpoena. As noted above, the Court’s April
19, 2022 Order required Respondents to produce the requested documents within “fourteen days of
the date of this Order.” (Doc. No. 10 at p. 5.) Given that Respondents were not served with the Order
until June 17, 2022, the Court runs the fourteen days from the date of service, making the response
deadline July 1, 2022. Respondents, however, failed to produce any documents until November 2022,
approximately four (4) months after this response deadline and only after this Court was forced to
conduct a hearing to address Respondents’ non-compliance. (Doc. No. 26-1 at p. 3.) Notably, during
the hearing, Respondent Pierce did not offer any reason why he had been unable to comply with this
Court’s Order in a timely fashion.
Based on the above, the Court finds that the Secretary has shown, by clear and convincing
evidence, that Respondents violated the April 19, 2022 Order. The Court further finds that
Respondents have failed to demonstrate that they made any effort to timely comply, or that there is
9
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 10 of 14. PageID #: 134
some reason why they were unable to timely comply, with that Order. Faced with similar
circumstances, numerous district courts have found respondents in contempt for failing to comply
with Court Orders enforcing administrative subpoenas. See, e.g., Acosta v. N&B Lundy Corp., 2017
WL 1709438 at * 3 (M.D. Pa. May 3, 2017); Lineback v. Cherry Creek Electric, Inc., 2016 WL
1714221 at * 3 (C.D. Ill. March 23, 2016), report and recommendation adopted, 2016 WL 1651793
(C.D. Ill. April 26, 2016). See also Objective Solutions Intern., Ltd. v. Gammon, 2008 WL 754674
at * 1 (S.D.N.Y. March 14, 2008) (finding defendants in contempt and awarding attorney’s fees even
where defendants came into compliance with the relevant court order before the motion for contempt
was filed); Shady Records, Inc. v. Source Enterprise, Inc., 351 F.Supp.2d 64, 73 (S.D. N.Y. 2004)
(same). Accordingly, and for all the reasons set forth above, the Court finds that Respondents are in
civil contempt for failing to comply with this Court’s April 19, 2022 Order.
The Secretary next argues that the Court should impose sanctions for Respondents’ failure to
timely comply this Court’s April 19, 2022 Order. (Doc. No. 26-1 at p. 4-6.) Specifically, the
Secretary requests that the Court order Respondents to pay the attorney’s fees incurred by the
Secretary after June 17, 2022; i.e., the date on which the Secretary personally served Respondents
with the Court’s April 19, 2022 Order. (Id. at p. 5.) As outlined in a Declaration attached to his
Motion, the Secretary’s counsel, Adam Lubow, avers that he expended 11.50 hours on the instant
matter after June 17, 2022, both in preparing the September 2022 Motion for Civil Contempt and in
preparing the instant Motion. (Doc. No. 26-2.) The Secretary argues that, given Attorney Lubow’s
fifteen years of experience in labor matters, an hourly rate of $250 is reasonable and appropriate.
(Doc. No. 26-1 at p. 4-5; Doc. No. 26-2.) While a strict lodestar calculation (11.50 hours x $250.00
per hour) would result in an award of $2,875.00, the Secretary only seeks an award of $2000.00, in
10
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 11 of 14. PageID #: 135
recognition of the fact that Respondent Express Auto and Tire LLC is no longer in business. (Doc.
No. 26-1 at p. 6.)
The Court finds that an award of $2000.00 in attorney’s fees is reasonable and appropriate
under the circumstances. As noted above, a district court has “broad discretion to fashion an
appropriate remedy for” a party’s contempt. See Williamson v. Recovery Ltd Partnership, 467 Fed.
Appx. 382, 396 (6th Cir. 2012); Paterek v. Village of Armada, Michigan, 801 F.3d 630, 644-645 (6th
Cir. 2015) (“The power to shape the appropriate remedy for a finding of contempt lies squarely within
the discretion of the district court.”). This includes the imposition of a fine. 4 See 18 U.S.C. § 401(3)
(“A court of the United States shall have the power to punish by fine or imprisonment, or both, at its
discretion, such contempt of its authority, and none other, as -- ** (3) Disobedience or resistance to
its lawful writ, process, order, rule, decree, or command.”) Moreover, courts have noted that
“[c]ompensation of the injured party in a contempt proceeding ‘often consist[s] of reasonable costs
(including attorneys’ fees) incurred in bringing the civil contempt proceeding.’” American
Consolidated Industries, Inc. v. Blasingim, 2022 WL 17687491 at * 27 (N.D. Ohio Dec. 15, 2022)
(quoting Unitronics (1989) (R”G) Ltd. v. Gharb, 85 F.Supp.3d 133, 142 (D.D.C. 2015)) (quoting
Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70, 76 (D.D.C. 2003)). “The remedial purposes of
contempt suggest that a court may award reasonable attorneys’ fees and costs as part of the losses the
As one district court recently explained, “’[a] contempt fine … is considered civil and remedial if it either ‘coerces the
defendant into compliance with the court's order, [or] ... compensates the complainant for losses sustained.’” TempurPedic North America, LLC v. SOS Furniture Co., Inc., 2020 WL 6302648 at * 3 (E.D. Ky. June 29, 2020) (quoting Int'l
Union v. Bagwell, 114 S. Ct. 2552, 2558 (1994) (internal quotation omitted)). A compensatory fine is payable to the
complainant whereas a coercive fine is payable to the court. Id. Here, the Secretary is seeking a compensatory fine.
(Doc. No. 26 at p. 1.)
4
11
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 12 of 14. PageID #: 136
injured party sustains as a result of the violation of the court order.” Id. See also Landmark Legal
Found., 272 F. Supp. 2d at 86.
Lastly, district courts have imposed awards of reasonable attorney’s fees for a respondent’s
failure to comply with a district court order enforcing an administrative subpoena. See, e.g., Lineback
v. Cherry Creek Electric, Inc., 2016 WL 1714221 at * 3- 4 (C.D. Ill. March 23, 2016) report and
recommendation adopted, 2016 WL 1651793 (C.D. Ill. Apr. 26, 2016); Hugler v. Guard Servs. Int.
Inc., 2017 WL 11048839 at *1 (N.D. Ga. Mar. 22, 2017); Acosta v. N & B Lundy Corp., 2017 WL
1709438 at *3-*4 (M.D. Fla. May 3, 2017).
Here, in light of Respondents’ failure to timely comply with the December 2021
administrative subpoena and April 19, 2022 Order despite numerous opportunities to do so, the Court
finds that an award of reasonable attorney’s fees against Respondents is appropriate. In addition, and
in the absence of any opposition, the Court finds that (1) the requested hourly rate of $250 is
reasonable given Attorney Lubow’s fifteen years of experience in this area, and (2) the requested
award of $2,000.00 is reasonable and appropriate under the circumstances. In so finding, the Court
notes that this award is, in fact, considerably less than the lodestar calculation of $2,875.00. The
Court finds this reduction reasonably takes into account the fact that Respondents ultimately complied
with the Court’s Order, as well as the fact that Respondent Express Auto and Tire, LLC is no longer
in business. 5
As one district court in this District recently noted, “[s]ome authority requires a finding of willfulness before a court
may award fees in connection with a finding of contempt.” American Consolidated Industries, Inc., 2022 WL 17687491
at * 2 (citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (“In a civil contempt action
occasioned by willful disobedience of a court order an award of attorney's fees may be authorized as part of the fine to be
levied on the defendant.”) and Liberis v. Craig, 845 F.2d 326 (6th Cir. 1988) (“[A]ttorney’s fees may be awarded to the
prevailing party for the ‘willful disobedience of a court order...as part of the fine to be levied on the defendant.’ ”) (quoting
Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59 (1975)). To the extent a finding of willfulness is
required to support an award of attorney fees with connection with a finding of contempt, the Court finds that Respondents
5
12
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 13 of 14. PageID #: 137
Accordingly, the Secretary is hereby awarded a reasonable attorney’s fee award of $2,000.00.
IV.
Conclusion
For the foregoing reasons, Petitioner’s Motion for Adjudication of Civil Contempt and an
Award of Attorney’s Fees (Doc. No. 26) is GRANTED, as follows.
The Court finds that Respondents are in civil contempt for failing to comply with this
Court’s April 19, 2022 Order. The Secretary is hereby awarded reasonable attorney’s fees in
the amount of $2,000.00. Respondents are ORDERED to pay this amount to the Secretary
within thirty (30) days of the date of this Order. The Court will close the instant case but retains
jurisdiction to enforce this Order. If Respondents fail to achieve compliance with this Order
within thirty (30) days of the date of service thereof, Respondents shall be ordered to appear
before this Court to present evidence and testimony why they have failed to comply with this
Order. Respondents are cautioned that failure to comply with this Order may result in the
imposition of additional sanctions, up to and including an additional daily coercive fine and/or
imprisonment.
The Clerk’s Office is directed to serve Respondents with a copy of this Memorandum Opinion
& Order via regular mail at 212 Goredon Dr., Chardon, OH 44024-1514. In addition, the Clerk of
did, in fact, willfully fail to timely comply with this Court’s April 19, 2022 Order. In addition to failing to timely comply
with this Court’s Order despite numerous opportunities to do so, Respondents have repeatedly evaded service in this
matter, resulting in both delay and in increased costs for both the Secretary and this Court. Indeed, it took the Secretary
nearly two months (and repeated attempts) to serve Respondents with a copy of this Court’s April 19, 2022 Order.
Because of these difficulties, this Court felt compelled to direct the United States Marshals to serve Respondents. This
resulted in numerous service attempts by the Marshals, at taxpayer expense. On at least two of these occasions, the
Marshals were unable to serve Respondent Pierce because, although his vehicle was present at his residence, the Marshals
were “unable to have anyone in the residence open the door.” See Non-Doc. Order dated Oct. 18, 2022. The Court finds
that Respondent’s refusal to timely comply with the subpoena, combined with his deliberate efforts to evade service,
demonstrate willfulness sufficient to support an award of attorney’s fees.
13
Case: 1:22-mc-00011-PAB Doc #: 27 Filed: 01/18/23 14 of 14. PageID #: 138
Court
is
ordered
to
email
a
copy
of
this
Order
to
Respondent
expressautomiddlefield@gmail.com and logicoatroofing@gmail.com.
IT IS SO ORDERED.
s/Pamela A. Barker_
PAMELA A. BARKER
U. S. DISTRICT JUDGE
Date: January 18, 2023
14
Pierce
at
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?