Pemex Exploracion y Produccion v. BASF Corporation et al

Filing 793

MEMORANDUM OPINION AND ORDER denying 787 Joint MOTION for Contempt (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Southern District of Texas

ENTERED
August 12, 2016
David J. Bradley, Clerk

PEMEX EXPLORACION Y PRODUCCION,
Plaintiff,
V.

BASF CORPORATION; BASF FINA
PETROCHEMICALS LIMITED
PARTNERSHIP; MURPHY ENERGY
CORPORATION; BIO-NU SOUTHWEST,
INC. d/b/a VALLEY FUELS; US
PETROLEUM DEPOT, INC.; ARNOLDO
MALDONADO; JONATHAN DAPPEN;
STEPHEN PECHENIK; TIMOTHY L.
BRINK; CONTINENTAL FUELS, INC.;
and HIGH SIERRA CRUDE OIL &
MARKETING, LLC, Successor to
PETRO SOURCE PARTNERS, LP,
Defendants.
PEMEX EXPLORACION Y PRODUCCION,
Plaintiff,
V.

BIG STAR GATHERING LTD L.L.P.;
F&M TRANSPORTATION, INC.;
JAMES JENSEN; JOPLIN ENERGY,
LLC f/k/a HUTCHISON HAYES
ENERGY, LLC; JEFF KIRBY;
PLAINS ALL-AMERICAN PIPELINE,
L.P.; SAINT JAMES OIL, INC.;
SUPERIOR CRUDE GATHERING, INC.;
TRANSMONTAIGNE PARTNERS, L.P.;
and WESTERN REFINING COMPANY,
L.P.,

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CIVIL ACTION NO. H-10-1997

CIVIL ACTION NO. H-11-2019

§

Defendants.

§

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendants' Joint Application to
Hold Plaintiff in Civil Contempt of Court (Docket Entry No. 787).
For the reasons stated below, the motion will be denied.

I.

Factual and Procedural Background

Plaintiff, Pemex Exploraci6n y Producci6n ("PEP"), initially
filed suit on June 7, 2010, alleging various claims based on the
laws of Mexico and Texas against eleven defendants including inter
alia BASF Corp.

(the "BASF Action") . 1

On May 29, 2011, PEP filed

a second suit against eleven additional defendants including inter
alia Big Star Gathering,

Ltd.

L. L. P.,

F&M Transportation,

("F&M Transportation"), Jeff Kirby ("Kirby"),
Gathering,

Inc.

("Superior Crude")

Inc.

and Superior Crude

(the "Big Star Action") . 2

On

October 4, 2011, the court entered a Memorandum Opinion and Order
consolidating the BASF and Big Star Actions (Docket Entry No. 287,
p. 13).

On April 20, 2012, PEP filed its First Amended Complaint

in the Big Star Action,

which added two more defendants,

one of

which was RGV Energy Partners, LLC ( "RGV Energy") . 3
PEP's complaints asserted claims against the four defendants
who

have

filed

the

pending

application

to

hold

PEP

in

civil

contempt - Superior Crude and Kirby ("the Superior Defendants") and
RGV Energy and F&M Transportation -

for violation of the Texas

1

See
Plaintiff
PEP's
Original
Complaint
("Original
Complaint"), Docket Entry No. 1 in Civil Action No. H-10-1997. See
also Plaintiff PEP's Amended Complaint ("Amended Complaint"),
Docket Entry No. 59; and Plaintiff PEP's Second Amended Complaint
("Second Amended Complaint") , Docket Entry No. 108.
Unless
otherwise stated, all docket entry references are to Civil Action
No. H-10-1997.
2

PEP's Original Complaint ("Original Complaint"), Docket Entry
No. 1 in Civil Action No. H-11-2019.
3

Amended Complaint, Docket Entry No. 59; and Second Amended
Complaint, Docket Entry No. 108 in Civil Action No. H-11-2019.
-2-

Theft

Liability

Act

("TTLA"),

Tex.

Civ.

Prac.

& Rem.

Code

§§ 134.001-.005, conversion, civil conspiracy, and various forms of
equitable relief. 4

These defendants filed answers asserting that

PEP's claims were barred in whole or in part by the statute of
limitations, and all sought attorneys' fees.

5

The four defendants

seeking to hold PEP in civil contempt all filed motions for summary
judgment, 6 which the court granted on September 30, 2013. 7

After

4

See Memorandum Opinion and Order, Docket Entry No. 607,
pp. 111-16 (RGV Energy and F&M Transportation), and pp. 144-51 (the
Superior Defendants) .
5

See Superior Crude's Answer to PEP's Original Complaint,
Docket Entry No. 42 in Civil Action 11-2019, p. 20 ~ 149 ("Sixth
Defense. Some or all of the claims in this lawsuit are barred by
the statute of limitations or laches"), and p. 22, ~ 2 ("[t]hat
Superior be awarded his costs and disbursements herein, and
reasonable attorney's fees"); Defendant Kirby's Answer to PEP's
Original Complaint, Docket Entry No. 43 in Civil Action No. H-112019, p. 20 ~ 149 ("Sixth Defense.
Some or all of the claims in
this lawsuit are barred by the statute of limitations or laches."),
and p.
22 ~ 2
("That Superior be awarded its costs and
disbursements herein, and reasonable attorneys' fees"); Defendant
F&M Transportation's Original Answer, Docket Entry No. 44 in Civil
Action No. H-11-2019, p. 19 ~ 2 ("F&M is entitled to its court
costs and reasonable and necessary attorneys' fees in defending a
claim under the Texas Theft Liability Act. Tex. Civ. Prac. & Rem.
Code§ 134.005(b) .") and~ 8 ("PEP's claims are barred in whole or
in part by the statute of limitations."); Defendant RGV Energy's
Original Answer to Plaintiff's First Amended Complaint, Docket
Entry No. 441, p. 20, ~ 2 ("RGV is entitled to its court costs and
reasonable and necessary attorneys' fees in defending a claim under
the Texas Theft Liability Act.
Tex. Civ. Prac. & Rem. Code
§ 134.005(b) ."), and~ 8 ("PEP's claims are barred in whole or in
part by the statute of limitations.")
6

Defendants Superior Crude and Kirby's Motion for Summary
Judgment, Docket Entry No. 4 8 6; Defendants RGV Energy and F&M
Transportation's Motion for Summary Judgment, Docket Entry No. 517.
7

Memorandum Opinion and Order, Docket Entry No. 607, pp. 14451 (the Superior Defendants); pp. 111-16 (RGV Energy and F&M
Transportation) .
-3-

disposing of all claims of all parties,

the court entered Final

Judgment on June 2, 2014 (Docket Entry No. 742).
Federal Rule of Civil Procedure 54(d) (2) (B) requires motions
for recovery of attorneys' fees and related expenses to be filed no
later than fourteen days after entry of judgment unless a statute
or court order provides otherwise.

On June 16, 2014, RGV and F&M

Transportation and Superior Crude and Kirby filed original motions
for recovery of attorneys' fees and related expenses. 8
2014,

On July 9,

the court entered an order denying without prejudice the

original

motions

for

recovery

of

attorneys'

fees

and

related

expenses explaining that since PEP
has filed a Notice of Appeal that includes the court's
rulings on plaintiff's claims against RGV Energy
Partners, LLC, F&M Transportation, Inc., Superior Crude
Gathering, Inc., and Jeff Kirby, the court concludes that
it would be a better use of judicial resources to defer
a ruling on defendants' motions until after the Fifth
Circuit has ruled. 9
The Order also stated that "[i] f the United States Court of Appeals
for

the

Fifth

Circuit

affirms

the

court's

Final

Judgment,

defendants may file amended motions for attorney's fees within
thirty (30) days from the issuance of the mandate." 10
On March 5,
Final

Judgment.

2015,

the Fifth Circuit affirmed this court's
Pemex

Exploraci6n

8

y

Producci6n

v.

Defendants RGV Energy and F&M Transportation's Motion for
Attorneys' Fees, Docket Entry No. 746; Defendants Superior Crude
and Kirby's Motion for Attorney's Fees, Docket Entry No. 749.
9

0rder, Docket Entry No. 759, p. 1.

10

Id. at 1-2.
-4-

ConocoPhillips,
curiam).

et al.,

595 F.

App'x 445

(5th Cir.

2015)

(per

On March 19, 2015, PEP filed a Petition for Rehearing En

Bane, and the Fifth Circuit cancelled the mandate pull date.

On

May 12, 2015, the Fifth Circuit denied PEP's Petition for Rehearing
En Bane, and

on May 20, 2015, the Fifth Circuit issued its mandate

affirming this court's Final Judgment (Docket Entry No. 772).
Defendants then filed timely amended motions for attorneys'
fees.

Asserting

that

they

were

granted

summary

judgment

September 30, 2013 (Docket Entry No. 607), which was made

fina~

on
on

June 2, 2014 (Docket Entry No. 742), the Superior Defendants sought
to recover $701,068.25
fees,

11

for reasonable and necessary attorneys'

while RGV Energy and F&M Transportation sought to recover

$129,334.00

for

reasonable

and necessary

attorneys'

$7,452.35 for expenses for a total of $136,786.35. 12

fees,

and

Defendants

urged the court to grant their motions because the TTLA mandates
the award of attorneys'

fees to prevailing parties.

PEP opposed

the motions for attorneys' fees, arguing that the defendants were
not

prevailing parties

segregated their fees. 13

11

under

the

TTLA and

had not

adequately

On December 31, 2015, the court entered

Superior Defendants
Amended Motion for Attorney's
Docket Entry No. 773, p. 10.
I

12

RGV Energy and F&M Transportation's
Attorneys' Fees, Docket Entry No. 776, p. 2.
13

Amended

Fees

Motion

I

for

See PEMEX Exploraci6n y Producci6n' s Opposition to Superior's
Motions for Attorneys' Fees, Docket Entry No. 775; and PEMEX
Exploraci6n y Producci6n's Opposition to F&M's and RGV's Amended
Motions for Attorneys' Fees, Docket Entry No. 778.
-5-

a Memorandum Opinion and Order
granting defendants'

("Order")

(Docket Entry No.

amended motions for attorneys'

7 84)

fees.

The

court's Order directed PEP to pay Superior Crude Gathering, Inc.
and Jeff Kirby $701,068.25, and RGV Energy Partners, LLC and F&M
Transportation, Inc. of $136,786.35, "within thirty (30) days from
the entry of this Memorandum Opinion and Order. " 14
Order did not warn PEP that
failure

The court's

it could be held in contempt for

to pay the award on time,

and PEP did not appeal

the

court's Order.
II.

Analysis

Citing Federal Rule of Civil Procedure 70, "[d]efendants seek
enforcement of the Order

[directing PEP to pay their attorneys'

fees] via Rule 70's contempt provision. " 15
failed

to

defendants

make

any

argue

that

payment

Asserting that "PEP has

whatsoever

to

their application for

any
civil

defendant, " 16
contempt

is

necessary because PEP's counsel has not responded to inquiries
regarding whether PEP will make the ordered payments. 17
PEP responds that the court should deny Defendants'

Joint

Application because

14

Memorandum
pp. 29-30.

Opinion

and

Order,

15

Docket

Entry

No.

784,

Defendants' Joint Application to Hold Plaintiff in Civil
Contempt of Court ("Defendants' Joint Application"), Docket Entry
NO. 787, p. 3 ~ 5.
16

Id. at 2

~

2.

-6-

[a]lthough the Court ordered PEP to pay the fees within
30 days of the order's entry, the order is a money
judgment. Here, the fee order did not indicate that the
Court contemplated enforcement by contempt, and Defendants' joint application to hold PEP in contempt does not
show that this case meets an exception to Rule 69(a) 's
general rule that a money judgment is enforceable by a
writ of execution, not contempt proceedings. 18
A.

Applicable Law

Federal

Rules

of

Civil

Procedure

enforcement of judgments in federal court.

69

and

70

govern

the

Rule 69(a) states that

"[a] money judgment is enforced by a writ of execution, unless the
court

directs

The

otherwise.

procedure

on

execution- -and

in

proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is
located.

11

Fed.

R.

Civ.

P.

69 (a) (1)

wider latitude in certain circumstances.

Rule 70 gives courts
"If a judgment requires

a party to convey land, to deliver a deed or other document, or to
perform any other specific act and the party fails to comply within
the time specified, the court may order the act to be done--at the
disobedient party's expense--by another person appointed by the
court."
issue

Fed. R.

writs

contempt.

of
Fed.

Civ.

P.

70(a).

attachment
R.

Civ.

P.

and

Rule 70 also allows courts to
to

70 (e).

hold disobedient
A finding

of

parties

in

contempt

is

appropriate when a movant shows by clear and convincing evidence

18

PEP' s Response to Defendants' Joint Application to Hold
Plaintiff in Civil Contempt of Court ("PEP's Response"), Docket
Entry No. 791, pp. 1-2.
-7-

that

(1)

a

court order was

in effect,

(2)

the

order required

certain conduct by the respondent, and (3) the respondent failed to
comply with the court's order.
271-72 (5th Cir. 2009)

Whitcraft v. Brown, 570 F.3d 268,

(citing Martin v. Trinity Industries, Inc.,

959 F.2d 45, 47 (5th Cir. 1992)).

See also Petroleos Mexicanos v.

Crawford Enterprises, Inc., 826 F.2d 392, 401 (5th Cir. 1987) ("The
movant

in

a

civil

establishing by
relief] .
499

11

)

contempt

clear

and

proceeding

convincing

bears

evidence

the

burden

of

[entitlement

to

(citing McComb v. Jacksonville Paper Co., 69 S. Ct. 497,

(1949)) .

Granting an application to hold a party in civil

contempt is within the court's discretion.
(citing United States v.

Sorrells,

Martin, 959 F.2d at 46

877 F.2d 346,

348

(5th Cir.

1989)).
B.

Application of the Law to the Undisputed Facts

Citing Petroleos Mexicanos, 826 F.2d at 401, defendants argue:
There is no dispute that the Court's Order is in effect
at this time, which satisfies the first element.
Regarding the second element, the Court's Order could not
be clearer with respect to the action PEP must undertake
- "pay defendants . . . within thirty (30) days from the
entry of this [Order]
Finally, regarding the
third element, as evidenced by the affidavits attached
hereto PEP has failed to comply with the Court's clear
Order directing PEP to pay Defendants within those 30
days. Accordingly, having conclusively established all
three elements for a
finding of civil contempt,
Defendants seek an order from the Court holding PEP in
civil contempt . 19
11

19

Defendants' Joint Application, Docket Entry No. 787, p. 4
-8-

~

7.

Defendants urge the court to fine PEP $250.00 per day per defendant
until PEP pays them in full.

20

Defendants support their motion with

affidavits from Jeff Kirby and Frank Del Angel stating that PEP has
not made any payment to them or their companies, Superior Crude,
RGV Energy,
Order. 21

and F&M Transportation,

as a result of the court's

Defendants also cite the affidavit of F.

Superior Crude's

lead attorney,

and copies

of

Lee Butler,

emails

attached

thereto that he sent to PEP's counsel asking for PEP's response to
the court's Order -- to which he received no response. 22
1.

The December 31, 2015, Order is a Money Judgment

Citing Federal Rule of Civil Procedure 54(a)

and 28 U.S.C.

§ 1291, PEP argues that the December 31, 2015, Memorandum Opinion

and Order

is

"' [j]udgment'

a

"money

judgment. " 23

Rule

54 (a)

provides

that

as used in these rules includes a decree and any

order from which an appeal lies."

Fed. R. Civ. P. 54(a).

Citing

Combs v. Ryan's Coal Company, Inc., 785 F.2d 970 (11th Cir.), cert.
denied

sub nom Simmons

Shuffler v.

20

v.

Heritage Bank,

Id. at 4

~

Combs,
720

107

S.

F.2d 1141

Ct.

187

(1986),

and

1983),

PEP

(9th Cir.

8.

21

Affidavit of Jeff Kirby and Affidavit of Frank Del Angel,
Exhibits A and B, respectively, to Defendants' Joint Application,
Docket Entry Nos. 787-1 and 787-2.
22

Affidavit of F. Lee Butler, Exhibit C to Defendants' Joint
Application, Docket Entry No. 787-3.
23

PEP's Response, Docket Entry No. 791, pp. 4-5
-9-

~~

7-9.

argues that even though the court ordered PEP to pay the defendants
within 30 days of the order's entry, the December 31, 2015, Order
is

a

money

judgment

enforceable

contempt proceedings. 24

In Combs,

by

a

writ

of

execution,

785 F.2d at 980,

not

the Eleventh

Circuit characterized a consent decree that called for installment
payments by particular dates as a money judgment; and in Shuffler,
720 F.2d at 1147-48,
"that

ordered

the

the Ninth Circuit characterized a judgment
Shufflers

to

pay

$190,000

to

Heritage

by

February 15, 1982" as a money judgment.
Citing In re Nalle Plastics Family Limited Partnership, 406
S.W.3d

168,

172-73

(Tex.

2013),

defendants

argue

that

the

December 31, 2015, Order is not a money judgment because it awarded
only attorneys' fees, not compensatory damages. 25

In that case the

Texas Supreme Court observed that an award of attorneys'
"in the nature of a penalty,

or punishment.

fees is

. " and held that

"[w]hile attorneys' fees for the prosecution or defense of a claim
may be compensatory in that they help make a claimant whole, they
are not,

and never have been,

damages."

Id. at 173.

Asserting

that "an award of attorney's fees is a penalty or punishment is
particularly true of the TTLA's fee shifting provision, which was
enacted to punish theft,

24

Id. at 4

~

and,

in this

case,

false

accusations

9.

25

Defendants' Reply to Response to Joint Application to Hold
Plaintiff in Civil Contempt of Court ("Defendants' Reply"), Docket
Entry No. 792, pp. 3-4 ~ 7.
-10-

thereof, " 26 defendants argue that " [t] he award at issue in this case
is not a money judgment of damages but instead is a

statutory

sanction issued by the Court against PEP for failure to prevail on
a claim asserted under the TTLA. " 27
The December 31, 2015, Memorandum Opinion and Order resulted
from a procedure conducted pursuant to Rule 54(d) (2)
proceedings on the merits had concluded. 28

The December 31, 2015,

Memorandum Opinion and Order granted defendants'
for attorneys'

fees,

after the

amended motions

and ordered PEP to pay defendants a certain

sum of money under the TTLA's prevailing-party provision. 29
December 31,

2015,

The

Order directing PEP to pay defendants a sum

certain was the court's final decision on the issue of attorneys'
fees.

The Order therefore was subject to appeal pursuant to 28

U.S.C.

§

1291.

See Shipes v. Trinity Industries,

339, 341 (5th Cir. 1989)

Inc., 883 F.2d

("[T]reating a claim for attorney's fees

as a distinct claim for relief under Rule 54(b), an order awarding
attorney's

fees may be considered final

26

Id. at 4

~

8.

27

Id. at 7

~

within the meaning of

15.

28

Memorandum Opinion and Order, Docket Entry No. 784, pp. 2-6,
especially pp. 4-5 (stating that "Federal Rule of Civil Procedure
54(d) (2) (B) requires motions for recovery of attorneys' fees and
related expenses to be filed no later than fourteen days after
entry of judgment, unless a statute or court order provides
otherwise.").
29

§

Id.
at
134.005(b)).

29-30

(citing

Tex.
-11-

Civ.

Prac.

&

Rem.

Code

sec.

1291

if

question.").

it disposes

finally of

the attorney's

fee

Because the December 31, 2015, Order directed PEP to

pay defendants a certain sum of money, and because that order was
subject to appeal, the court concludes that the December 31, 2015,
Order

is

a

"money

judgment."

See

Fed.

R.

Civ.

P.

54(a)

("'Judgment' as used in these rules includes a decree and any order
from which an appeal lies.").
Refining

Co.,

Inc.,

805

See also Matter of Commonwealth Oil

F.2d 1175,

1186

(5th Cir.

1986)

("As

traditionally understood, a money judgment 'need consist of only
two elements:

(1) an identification of the parties for and against

whom judgment is being entered,

and

(2)

a

definite and certain

designation of the amount which plaintiff is owed by defendant.").
2.

Contempt Is Not Generally Available to Enforce a Money
Judgment Issued by a Federal Court

Although the first sentence of Rule 69(a)

appears to allow

some flexibility in the availability of remedies beyond a writ of
execution to enforce a money judgment, the Fifth Circuit has stated
that "Rule 69(a) 's 'otherwise' clause is to be construed narrowly."
Andrews v.
2006)

Roadway Express Inc.,

(quoting

Shuffler,

720

473 F.3d 565,

F.2d

at

568-69

1147-48

(5th Cir.

("[W]e

do

not

interpret the exception to execution to permit a federal court to
'enforce a money judgment by
in

cases

. methods other than a writ of

execution,

except

where

warrant.'"

(citations omitted)) .

have also construed Rule 69 (a)'s
-12-

established

principles

so

Courts in other jurisdictions
"otherwise"

language narrowly.

For example, in Aetna Casualty & Surety Co. v. Markarian, 114 F.3d
346, 349 (1st Cir. 1997), the First Circuit stated that Rule 69(a)
"does

not

methods

authorize

other

than

enforcement
a

writ

of

of

Gabovitch

v.

Practice~

Lundy,

584

civil

execution,

established principles [so] warrant.'"
Moore's Federal

a

Id.

money
except

judgment by
where

(quoting 13 J. Moore,

69.02, at 69-5 (3d ed. 1997)).
F.2d

559,

560

'well

n.1

(1st

See also

Cir.

1978)

("Moreover, equitable remedies, even those permitted by Rule 70,
are seldom appropriate aids to execution of a money judgment.").
The First Circuit summarized the circumstances in which courts have
allowed equitable remedies permitted by Rule 70 to enforce money
judgments:
One such situation is where an action for contempt has
been instituted for failure to pay an obligation imposed
by statute in order to enforce the public policies
embodied in the statutory scheme. See, e.g., McComb v.
Jacksonville Paper Co., 69 S. Ct. 497 [193-95] (1949)
[Fair Labor Standards Act] . Another is where there has
been a congressional determination to provide the
government with the ability to seek a writ of ne exeat in
furtherance of enforcing tax obligations. See, e.g., 26
U.S.C. § 7402(a).
A third is where the judgment is
against a state which refuses to appropriate funds
through the normal process provided by state law. See,
~' Spain v. Mountanos, 690 F.2d 742, 744-45 (9th Cir.
1982); Gary W. v. Louisiana, 622 F.2d 804, 806 (5th Cir.
1980) .
In contrast, the size of the award and the
difficulties in enforcing the judgment due to the
location of the assets and the uncooperativeness of the
judgment debtor are not the types of extraordinary
circumstances which warrant departure from the general
rule that money judgments are enforced by means of writs
of execution rather than by resort to the contempt power
of the courts. See Hilao [v. Estate of Marcos], 95 F.3d
[848,] 855 [(9thCir. 1996)].
Markarian, 114 F.3d at 349 n.4 (emphasis added).
-13-

Defendants point to some Fifth Circuit cases in which Rule 70
has

been

used

to

enforce

money

judgments

in

particularized

circumstances:

Leroy v. City of Houston,

(5th Cir. 1990)

(invoking Rule 70 to compel compliance with a money

906 F.2d 1068, 1085-86

judgment); Gates v. Collier, 616 F.2d 1268, 1271-72 (5th Cir. 1980)
(holding Rule 70 is appropriate to enforce awards of attorney's
fees

against a

judgment debtor who has not made payment);

and

Rousseau v. 3 Eagles Aviation, Inc., Civil Action No. 02-0208, 2006
WL 219992, * 1-2 (E.D. La. 2006)

(holding that an order setting a

deadline or specific time frame to pay a money judgment could be
enforced through Rule 70).

Defendants' reliance on these cases in

support of their application for an order of contempt is misplaced
because they are all factually distinguishable.
In Leroy plaintiffs pursuing voting-rights claims received an
award of attorneys'

fees,

which they tried -

unsuccessfully

pursue through a writ of execution under Rule 69(a).

to

Noting that

the procedure for execution is governed by state law and that Texas
law barred execution on assets owned by a city in its governmental
character, the Fifth Circuit held that the "proper way to enforce
a money judgment against a city is by mandamus" or by an order to
pay under Rule 70.

LeRoy, 906 F.2d at 1085-86.

LeRoy is factually

distinguishable because the judgment holders in this case have made
no showing that they have made any effort to acquire a writ of
execution in accordance with Rule 69(a), and because the judgment
debtor is not a municipal government.
-14-

In

Gates

the

unconstitutional

State

of

practices

extensive

litigation,

treasurer

to

satisfy

the
a

Mississippi

at

one

district

money

attorney's fees and costs.

of

was

its
court

judgment

Gates,

found

prisons
ordered

against

liable

for

and,

after

the

state

the

State

616 F.2d at 1270.

for

The state

argued that, by its own law, it could not be ordered to satisfy the
money judgment because it was only responsible for satisfying the
judgment on a voluntary basis.

Id.

The Gates court held that

Rule 70 could be used to order payment,
have made
judgment

it abundantly clear that
until

the

bitter

end."

where "[t]he defendants

they
Id.

intend to

at

resist

1271-72.

the

Gates

is

factually distinguishable because the judgment debtor there was a
state

actor

who

argued

that

its

own

law

prevented

it

from

satisfying the money judgment at issue, and the judgment holders
had produced evidence that persuaded the court the judgment debtor
intended to "resist the judgment until the bitter end.

Given such

obstinance, we think it beyond peradventure that the remedy fits
the wrong."

Id.

at 1272.

Although PEP admits that it is

"a

foreign, public entity, " 30 defendants have made no showing that PEP
is legally prevented from appropriating funds needed to pay the fee
award against it in this case, or that PEP intends to resist the
court's judgment until the bitter end.
merely submitted a

30

handful

of

Instead, defendants have

unanswered emails.

PEP's Response, Docket Entry No. 791, p. 9
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~

Defendants'

20.

unanswered

emails

do

not

match

the

level

of

obstinance

that

persuaded the Gates court to conclude that the remedy of contempt
fit the wrong at issue.
In

Rousseau

the

court

Rousseau, a private party.

awarded

attorneys'

fees

against

When Rousseau failed to pay the award,

3 Eagles Aviation filed a motion for contempt.

Because the award

did not provide a

the

date

certain for

payment,

court denied

3 Eagle Aviation's motion for contempt, but modified its original
order directing Rousseau
certain.

Rousseau,

to pay the

2006 WL 219992,

amount

*2.

awarded by a

date

This case is factually

distinguishable because the court added a date certain for payment
in response to 3 Eagles Aviation's motion for contempt,

thereby

warning Rousseau that failure to make payment by that date could
subject him to a

finding

of

contempt.

Rousseau

is

factually

distinguishable from this case because the court there only ordered
the judgment debtor to pay the attorneys'

fee award by a date

certain as a warning that failure to pay the award could subject
him to an order of contempt.
because

the

court

there

Rousseau is legally distinguishable

neither

discussed

nor

considered

the

distinction between Rules 69 and 70 or the case law discussing
departure

from

Rule

69 (a) 's

general

rule

for

enforcing money

judgments by writ of execution.
3.

The Record Does Not Support the Imposition of Contempt

Missing from defendants' briefing is any persuasive evidence
or argument that the facts of this case satisfy an established
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principle that would permit enforcement of the court's award of
attorneys'

fees

and related costs via a

contempt order issued

pursuant to Rule 70 instead of a writ of execution pursuant to
Rule 69(a).

Taking an expansive view of

contempt powers,

the court's

inherent

defendants argue that PEP's refusal to pay the

award turns this case into one of extraordinary circumstances.
court is not persuaded that the record supports a

The

finding that

exceptional circumstances support issuance of an order holding PEP
in civil contempt.

PEP may be an uncooperative judgment debtor,

but defendants have failed to cite any authority indicating that
uncooperativeness is sufficient to turn a case into one in which
the remedies of Rule 70 are available.
III.
For the

reasons

Conclusions and Orders

stated in

§

II,

above,

Defendants'

Joint

Application to Hold Plaintiff in Civil Contempt of Court (Docket
Entry No. 787) is DENIED.
SIGNED at Houston, Texas, on this 12th day of August, 2016.

UNITED STATES DISTRICT JUDGE

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