United States of America v. $1,264,000.00 in U.S. Currency

Filing 152

Memorandum Opinion and Order: Dunn has filed a motion for an order requiring the government to show cause why it should not be held in contempt for refusing to pay Dunn's portion of the Attorney Fee Fund. I deny Dunn's motion. re 148 . Judge Jeffrey J. Helmick on 8/10/2020. (S,AL)

Case: 3:13-cv-00905-JJH Doc #: 152 Filed: 08/10/20 1 of 2. PageID #: 1752

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
United States of America,

Case No. 3:13-cv-905

Plaintiff,
v.

ORDER

$1,264,000.00 in U.S. Currency,
Defendant.
Having waited over four years for the payment of fees it incurred for work on behalf of
Claimants Ohio Scrap Corporation, Carrie Zappone, and Todd Cappone, Dunn Counsel PLC
understandably is frustrated by having to wait longer still. To that end, Dunn has filed a motion for
an order requiring the government to show cause why it should not be held in contempt for refusing
to pay Dunn’s portion of the Attorney Fee Fund. (Doc. No. 148).
The government contends it cannot transfer the funds, which it represents is to be paid from
the Judgment Fund administered by the Department of the Treasury’s Bureau of the Fiscal Service,
until after the appeal filed by Ohio Scrap and the Zappones has been fully and finally resolved.
(Doc. No. 149).
A party seeking sanctions for civil contempt “must demonstrate by clear and convincing
evidence that the opposing party knowingly ‘violated a definite and specific order of the
court.’” Gascho v. Glob. Fitness Holdings, LLC, 875 F.3d 795, 800 (6th Cir. 2017) (quoting NLRB v.
Cincinnati Bronze, Inc., 829 F.2d 585, 591 (6th Cir. 1987)). The Sixth Circuit has held that a movant

Case: 3:13-cv-00905-JJH Doc #: 152 Filed: 08/10/20 2 of 2. PageID #: 1753

seeking a contempt finding did not carry the movant’s burden of showing the other party had
knowingly violated a clear and specific command where the order in question did not provide a
specific deadline for compliance. Gascho, 875 F.3d at 801 (citing Downey v. Clauder, 30 F.3d 681, 686
(6th Cir. 1994), for the “holding that an order that did not ‘specif[y] a date’ or command the
contemnor ‘to act immediately’ was not definite and specific”).
My earlier order did not require the government to pay out the funds immediately or by a
specific date, and the government’s decision to await the Sixth Circuit’s resolution of the Zappones’
appeal does not rise to the level of a knowing violation of a clear and specific command contained in
my order. Therefore, I deny Dunn’s motion. (Doc. No. 148).
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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