THE AMERICAN OUTDOORSMAN, INC. v. SHADOW BEVERAGES AND SNACKS, LLC

Filing 101

MEMORANDUM ORDER re 95 Motion for Contempt filed by THE AMERICAN OUTDOORSMAN, INC.. Signed by Magistrate Judge Maureen P. Kelly on 12/2/2014. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THE AMERICAN OUTDOORSMAN,
INC.,
Plaintiff,
vs.
SHADOW BEVERAGES AND
SNACKS, LLC,
Defendant.

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Civil Action No. 13-443
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 95

MEMORANDUM ORDER
On September 23, 2014, this Court issued an Order directing Plaintiff and Defendant to
each bear one-third of the expenses, or $4,041.66, incurred by expert witness Andrea Hein in
connection with her preparation and attendance at a deposition in Los Angeles, California, on
February 18, 2014. ECF No. 94. Ms. Hein was to bear the remaining one-third of her expenses.
Id. In addition, Defendant was to reimburse Ms. Hein $6000.00 in expenses for the taking of the
deposition, and $154.55 for miscellaneous expenses for a total of $10,196.21. The Court also
directed Plaintiff and Defendant to make the ordered payments to Ms. Hein on or before
September 30, 2014. Id.
On November 7, 2014, Plaintiff filed a Motion to Hold Defendant Shadow Beverages and
Snacks, LLC in Contempt for Failing to Comply with the Court’s September 23, 2014 Order
Compelling Payment to Andrea Hein (“the Motion”). ECF No. 95. Plaintiff argues therein that,
despite numerous attempts to communicate with Defendant and efforts to obtain the payment on
Ms. Hein’s behalf, no payments had been forth coming as of November 7, 2014 -- the date the
Motion was filed. Id. Plaintiff asks the Court to not only find Defendant in contempt under Fed.

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R. Civ. P. 70, but to compel immediate payment to Ms. Hein, and impose sanctions as well as
attorney’s fees and costs associated with the preparation and filing of the Motion. Defendant
filed a Response to the Motion on November 13, 2014, ECF No. 98, in which it indicated that it
did not intentionally seek to disregard this Court’s Order but was financially unable to
compensate Ms. Hein in the time frame set forth by the Court. Id. Defendant also indicated that
it had since wired the money it owed to Ms. Hein and that Ms. Hein has received the wire
transfer. Id. On November 14, 2014, Plaintiff filed a Reply to Defendant’s Response to the
Motion, ECF No. 99, confirming that the wire transfer to Ms. Hein in the amount of $10,196.21
had been completed and withdrawing its request for sanctions. Plaintiff, however, continues to
seek reimbursement in the amount of $2500.00 for the attorney’s fees and costs it incurred in
securing payment for Ms. Hein including the costs relative to preparing the Motion and the
Reply. Id.
Notwithstanding Defendant’s apparent financial difficulties, it was still obligated by
Court Order to reimburse Ms. Hein by September 30, 2014. The better course therefore would
have been to file a motion with the Court seeking additional time within which to make the
payment. Nevertheless, Plaintiff has withdrawn its request for sanctions and the Court therefore
declines to impose any sanctions other than to reimburse Plaintiff for attorney’s fees and costs
associated with securing payment for Ms. Hein and filing the instant Motion. See Wedgewood
Village Pharmacy, Inc. v. United States, 421 F.3d 263, 268 (3d Cir. 2005) (“penalties for civil
contempt are limited to measures to . . . compensate the opposing party for losses sustained as a
result of the noncompliance”); Robin Woods, Inc. v. Woods, 28 F.3d 396, 400 (3d Cir. 1994) (an
award of attorney’s fees is appropriate for civil contempt). Although Plaintiff seeks $2500.00 in
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attorney’s fees and costs, Plaintiff has not provided the Court with any documentation to justify
its request. Accordingly, the following Order is entered:
AND NOW, this 2nd day of December, 2013, upon consideration of Plaintiff’s Motion to
Hold Defendant Shadow Beverages and Snacks, LLC in Contempt for Failing to Comply with
the Court’s September 23, 2014 Order Compelling Payment to Andrea Hein, Defendant’s
Response thereto and Plaintiff’s Reply, IT IS HEREBY ORDERED that the Motion, ECF No.
95, is granted in part and denied in part. The Motion is denied insofar as Plaintiff seeks to hold
Defendant in contempt and to have sanctions imposed; the Motion is granted insofar as Plaintiff
seeks reimbursement of the attorney’s fees and costs incurred in securing payment for Ms. Hein,
including the preparation and filing of the instant Motion and Reply.
IT IS FURTHER ORDERED that on or before December 12, 2014, Plaintiff shall submit
any documentation in support of its request for the reimbursement of a specific amount of
attorney’s fees and costs, along with a proposed order awarding the amount of documented
attorney’s fees and costs. If Defendant wishes to file a response to Plaintiff’s request for
attorney’s fees and costs, it shall do so on or before December 23, 2014.
BY THE COURT:

/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

cc:

All counsel of record by Notice of Electronic Filing

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