United States of America v. Sherard et al
Filing
196
ORDER signed by Judge J P Stadtmueller on 4/22/15 denying 142 the government's Motion for Contempt; and Defendants shall have until 6/1/15 to satisfy the unmet requirements of the Consent Decree - failure to do so by 6/1/15 will result in stipulated penalties of $200 per day per violation per each unit, until those requirements are met in full. See Order. (cc: all counsel)(nm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
v.
Case No. 05-CV-486-JPS
WILL J. SHERARD and
W.J. SHERARD REALTY COMPANY,
ORDER
Defendants.
1.
BACKGROUND
In 2005, the parties entered into a consent decree (“Consent Decree”)
to address the defendants’ alleged violations of Section 1018 of the
Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C.
§ 4852d, regarding thirty-nine (39) residential properties (“the Properties”)
in the City of Milwaukee (“the City”) owned and managed by the
defendants. (Docket #6). The Consent Decree required, inter alia, certain
abatement of lead-based paint at the Properties. Id. Just shy of ten years later,
this case remains on the docket; but, the long slog of this case is nearly over.1
On November 7, 2014, the Court ordered the parties “to fully brief the
remaining issues in the case and, more importantly, each party’s proposed
method of bringing this matter to its well deserved end.” (Docket #191 at 4).
The parties did so (see Docket #192, #193, #194, #195), and thus on December
30, 2014, the remaining issues in this case became ripe for adjudication.
According to the government, there are three remaining issues in this
case: (1) the absence of a ruling on the government’s motion for contempt,
1
The Court presumes the reader’s familiarity with the history of this case;
accordingly, the Court will forego recounting the posture of the case and will
instead address certain historical facts when necessary to resolve the issues at hand.
filed on December 27, 2012 (see Docket #143); (2) deficiencies in the
defendants’ third-party clearance exams; and (3) the unmet requirement that
the defendant file a certification in compliance with Paragraph 58 of the
Consent Decree as a pre-condition to release of the remaining funds in
escrow. (Docket #192 at 1-2). The government proposes either that the Court
rule on its motion for contempt, or, the government will withdraw its motion
for contempt and stipulate to the release of funds from escrow and
termination of the Consent Decree if the defendants: (1) “implement an
[ongoing operations and maintenance (“O&M”)] plan substantially similar
to the O&M plan attached [to the government’s brief],” and (2) “agree to give
HUD future access to [two properties abated outside of the Consent Decree]
to visually inspect for lead-based paint hazards.” Id. at 2-3.
The defendants argue that the three remaining issues identified by the
government are “with the court and not with the defendants.” (Docket #193
at 1). This is so because, “[t]he goal of having each of the properties
remediated has been completed” and the defendants have paid the entire
cost to do so. Id. at 4. Thus, the defendants’ request “that the United States’
motion for contempt [be] dismissed, [t]he Consent Decree be vacated in its
entirety, and the remaining funds be released to the defendants forthwith.”
Id. In the defendants’ view, changed circumstances and substantial
completion of the Consent Decree militate against a finding of contempt.
And, according to the defendants, those same reasons compel them to reject
the government’s “olive branch”—the government’s offer to withdraw the
motion for contempt if the defendants agree to an O&M plan and give HUD
future access to two properties.
Page 2 of 16
The Court will deny the government’s motion for contempt and also
deny the defendants’ request to vacate the Consent Decree, for the reasons
that follow.
2.
DISCUSSION
2.1
The Government’s Motion for Civil Contempt
2.1.1
Legal Standard
“Consent decrees are a hybrid in the sense that they are at one both
contracts and orders; they are construed largely as contracts, but are enforced
as orders.” Berger v. Heckler, 771 F.3d 1556, 1567-68 (2d Cir. 1985) (internal
citation omitted); see also Cook v. City of Chicago, 192 F.3d 693, 695 (7th Cir.
1999) (“From the standpoint of interpretation a consent decree is a contract,
but from the standpoint of remedy it is an equitable decree.”); Gates v. Shinn,
98 F.3d 463, 468 (9th Cir. 1996) (“A consent decree is…‘in some respects
contractual in nature,’ but the equitable decree based on the agreement [of
the parties] ‘is subject to the rules generally applicable to other judgments
and decrees.’”) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378
(1992)). And, “courts have ‘inherent power to enforce consent judgments,
beyond the remedial contractual terms agreed upon by the parties [because]
a consent judgment contemplates judicial interests apart from those of the
litigants.’” United States v. N.Y.C. Dist. Council of N.Y.C., 229 Fed. Appx. 14,
18 (2d Cir. 2007) (quoting E.E.O.C. v. Local 580, Int’l Ass’n of Bridge, Structural
& Ornamental Ironworkers, Joint Apprentice-Journeyman Educ. Fund, 925 F.2d
588, 593 (2d Cir. 1991)). Thus, “[u]ntil the parties have ‘fulfilled their express
obligations’ to comply with a consent decree, ‘the court has continuing
authority and discretion—pursuant to its independent, juridical interests—to
ensure compliance.’” Id. at 18 n.5 (quoting Local 580, 925 F.2d at 593); see also
Berger, 771 F.2d at 1568.
Page 3 of 16
A court may impose sanctions for civil contempt “to coerce obedience
to a court order or to compensate the complainant for losses sustained as a
result of the contumacy.” Connolly v. J.T. Ventures, 851 F.2d 930, 932 (7th Cir.
1988) (citing United States v. United Mine Workers of Am., 330 U.S. 258, 303-04
(1947)); accord FTC v. Trudeau, 579 F.3d 754, 769 (7th Cir. 2009); see also United
States v. Saccoccia, 433 F.3d 19, 27 (1st Cir. 2005). “When the purpose of
sanctions in a civil contempt proceeding is compensatory, a fine, payable to
the complainant, must be based on evidence of actual loss.” S. Suburban Hous.
Ctr., 186 F.3d 851, 854 (7th Cir. 1999) (citing United Mine Workers, 303 U.S. at
303-04); see also Prima Tek II, LLC v. Klerk’s Plastic Indus., 525 F.3d 533, 543 (7th
Cir. 2008) (“…[W]e have held that remedial sanctions are limited to provable
losses sustained by the non-breaching party as a result of the violation of the
order.”) (citing Autotech Techs. LP v. Integral Research & Dev. Corp., 499 F.3d
737, 752 (7th Cir. 2007)); Shy v. Navistar Int’l Corp., 701 F.3d 523, 533 (6th Cir.
2012) (“Where a consent decree is violated, the court should fashion equitable
relief that is ‘designed to make the party whole for his or her loss.’”) (quoting
Cook, 192 F.3d at 695).
The Seventh Circuit has consistently reiterated that “[c]ourts have
broad discretion to fashion contempt remedies and the particular remedy
chosen should be ‘based on the nature of the harm and the probable effect of
alternative sanctions.’” Trudeau, 579 F.3d at 771 (quoting Connolly, 851 F.2d
930). “When considering an appropriate sanction for a party in contempt,
the guiding principle is proportionality.” APC Filtration, Inc. v. Becker, No.
07-CV-1462, 2010 WL 4930688, at *1 (N.D. Ill. Nov. 30, 2010) (citing Crown Life
Ins. Co. v. Craig, 995 F.2d 1376, 1382 (7th Cir. 1993)). Despite the wide latitude
courts have to craft civil contempt remedies, if the contempt order’s purpose
is actually to “punish the contemnor, vindicate the court’s authority, or deter
Page 4 of 16
future misconduct,” In re Grand Jury Proceedings, 280 F.3d 1103, 1107 (7th Cir.
2002), then the sanction is criminal and not civil. And, “the form of the
sanction matters because criminal sanctions require certain constitutional
safeguards before they are imposed.” Trudeau, 579 F.3d at 769.
To succeed on a motion for civil contempt regarding a consent decree,
a party must prove by clear and convincing evidence that the opposing party
violated the terms of the consent decree. See Goluba v. School Dist. of Ripon, 45
F.3d 1035, 1037 (7th Cir. 1995); see also Autotech, 499 F.3d at 751; D. Patrick, Inc.
v. Ford Motor Co., 8 F.3d 455, 460 (7th Cir.1993). Violated terms, that is, which
are “clear and unambiguous.” Saccoccia, 433 F.3d at 27; see also Autotech, 499
F.3d at 751 (noting that a party must demonstrate “by clear and convincing
evidence that the [non-movant] has violated the express and unequivocal
command” of an order or decree) (emphasis added). In addition, the party
must also show that the violation: (1) “was significant, meaning that [the nonmovant] did not substantially comply” with the consent decree; and, (2) the
non-movant “failed to take steps to reasonab[ly] and diligently comply with
the order.” Trudeau, 579 F.3d at 763; see also Prima Tek II, 525 F.3d at 542;
Goluba, 45 F.3d at 1037.
The numerous requirements noted above are necessary because “[t]he
judicial contempt power is a potent weapon,” Int’l Longshoremen’s Ass’n v.
Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76 (1967), and “[t]he
consequences that attend the violation of a court order are potentially dire,”
Project B.A.S.I.C. v. Kemp, 847 F.3d 11, 17 (1st Cir. 1991); thus, “courts must
‘read court decrees to mean rather precisely what they say,’” id. (quoting
NBA Properties, Inc. v. Gold, 895 F.2d 30, 32 (1st Cir. 1990)); see also United
States v. Armour & Co., 402 U.S. 673, 681-82 (1971) (“…[T]he scope of a
Page 5 of 16
consent decree must be discerned within its four corners, and not by
reference to what might satisfy the purposes of one of the parties to it.”).
And, to temper the “potent” contempt power even further, courts “must read
any ambiguities or omissions in…a court order as redound[ing] to the benefit
of the person charged with contempt.” NBA Properties, 895 F.2d at 32.
2.1.2
The Government’s Contempt Motion Must Be
Denied2
The Court finds, in light of the legal requirements that must be met to
sustain compensatory civil contempt sanctions, that the government’s
contempt motion must be denied. To begin, the government has failed to
show that the defendants—by razing three of the properties without a court
order (and without consent of the government)—violated the clear and
unambiguous language of the Consent Decree. The government cannot point
to any express language in the Consent Decree forbidding the defendants
from razing properties; nor could the Court find any. As the First Circuit has
stated, “if the ‘clear and unambiguous’ test is to have any content, it cannot
be applied in the abstract”; instead, that prong “requires that the words of
the court’s order have clearly and unambiguously forbidden the precise
conduct on which the contempt allegation is based.” Saccoccia, 433 F.3d at 28
(citing Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003)). The closest the
Consent Decree comes to addressing this conduct is in Paragraph 4, which
states: “If Defendant intends to sell or transfer any property subject to this
Consent Decree prior to [its] termination,” certain requirements must be met.
(Docket #6 ). That language is insufficient to cover the defendants’ choice to
2
The defendants’ arguments in opposition to the government’s motion are
premised, in substantial part, on the government’s lack of standing to bring the
contempt motion. Given that the government is a party in this case, those
arguments are without merit and will not be addressed further.
Page 6 of 16
raze the properties, nor does it satisfy the government’s burden to prove
contempt by “clear and convincing evidence.”
However, to be sure, the defendants agreed to be bound by the terms
of the Consent Decree, and those terms expressly required abatement. And,
“[a] defendant who has obtained the benefits of a consent decree–-not the
least of which is the termination of the litigation—cannot then be permitted
to ignore such affirmative obligations as were imposed by the decree.” Berger,
771 F.2d at 1568. But, on balance, the Court declines to impose civil contempt
sanctions on the defendants for what is, in some respects, a technicality. And,
tellingly, the government concedes as much, stating that “demolishing a
property technically abates the lead-based paint hazards.” (Docket #192 at
11); (see also Docket #194 at 6) (noting that “demolishing the properties
prevented tenants in these buildings from being exposed to lead-based paint
hazards”).
Moreover, the Court cannot ignore the overarching intent of the
Consent Decree, which was to protect the safety and welfare of current and
would-be tenants of the Properties. While the defendants’ conduct is not to
be condoned, the Court cannot say that it did not further the overall goal of
the Consent Decree. See Goluba, 45 F.3d at 1038 (noting that when there are
ambiguities, “we ‘look to the evil which the decree was designed to rectify’”)
(quoting Armour, 402 U.S. at 686 (Douglas, J., dissenting)). Nor can the Court
ignore that the Consent Decree was drafted by the government and, similar
to a contract, must be construed against them and not the defendants. See
Saccoccia, 433 F.3d at 28; United States v. ITT Cont’l Baking Co., 420 U.S. 223,
238 (1975); see also Cook, 192 F.3d at 695.
Page 7 of 16
The government’s argument that a finding of contempt is nonetheless
warranted because razing “was not sanctioned by the Consent Decree” and
“[d]emolition does not add to the stock of lead-safe rental housing as does
the abatement of lead hazards” (Docket #192 at 11) is equally unavailing.
True, razing of these properties does not add to the stock of lead-safe rental
housing, but the Court agrees with the defendants that, as a general matter,
“a business or private citizen of the City of Milwaukee…is not mandated or
required to provide housing for anyone.” (Docket #195 at 5). The
government’s argument is further undercut by the fact that the properties
that were razed had no tenants, nor could they because the properties were
placarded by the City of Milwaukee and deemed to be uninhabitable.
(Docket #193 at 3).
Now, as to the defendants’ decision to “perform[] abatement work on
two properties subject to the Consent Decree and subsequent orders . . .
without following the proscribed procedures” in the Consent Decree (Docket
#192 at 10), the Court finds that the defendants have expressly violated the
clear and unambiguous language of the Consent Decree. But, this contumacy
is best remedied—as will be discussed further below—by ordering that the
defendants permit HUD to inspect these properties (as was proposed by the
government).
Turning back to the government’s contempt motion writ large, even
assuming, arguendo, that the Court were to entertain contempt sanctions to
remedy the defendants’ actions regarding the five properties at issue, the
sanctions proposed by the government are untenable. This is because the
amount requested by the government, the route it used to calculate it, and
the nature of the injury the government seeks to redress, would transform
the sanction into a criminal one—even if the Court intended otherwise. See
Page 8 of 16
Trudeau, 579 F.3d at 769 (“In a given case, which form a sanction takes
depends on the ‘character of the relief itself,’ and not on the ‘subjective intent
of…courts.’”) (quoting Int’l Union, United Mine Workers of Am. v. Bagwell, 512
U.S. 821, 828 (1994)).
The government “requests that the Court order Mr. Sherard to forfeit
an amount equal to the average cost to abate lead-based paint hazards from
those five properties, namely $93,025, of the funds remaining in escrow.”
(Docket #192 at 8). The government reached that figure by taking the
“average cost of the abatement work for the properties…subject [to] the
Consent Decree,” $18,605, and multiplying it by five. Id. The government
requests “that the forfeited amount be distributed to the Layton Boulevard
West Neighbors (LBWN) for the purpose of abating [future] lead-based paint
hazards.” Id.3 The government originally styled this relief as “a narrowly
crafted remedy intended to dislodge any gains achieved by Mr. Sherard from
his contumacious behavior.” Id. at 11. Later, however, the government
switched strategies—due to the defendants’ brief, undoubtedly—and
referred to the relief as necessary to remedy the “harm to the public.”
(Docket #194 at 6); id. at 7 n.1 (averring that the “harm alleged in this case
was to consumers at large, and not directly to the government”).
Because the government’s calculations are at best hypothetical and at
worst wholly speculative, some part of the award would surely be greater
than necessary; the Seventh Circuit has found this improper, given that “[i]f
3
The government states that “LBWN is a non-profit, community
development corporation which is dedicated to revitalizing certain neighborhoods
on the southside of Milwaukee.…[And,] [i]n the event…the Court should award
the relief sought[,]…LBWN has agreed to establish a new grant matching program
to abate lead-based pain hazards in residential properties.” Id. at 8-9. As such, “the
United States believes that it is an appropriate recipient of these funds.” Id. at 9.
Page 9 of 16
any part of [the award] winds up being punitive instead of remedial, then
criminal proceedings are required to sustain it.” Trudeau, 579 F.3d at 770
(citing Nye v. United States, 313 U.S. 33, 43-44 (1941)).
More fundamentally, the Court cannot square the government’s
request for the sanctions to be donated to LBWN with the standard for
compensatory civil contempt sanctions, which seek to “compensate the
complainant for losses sustained.” United Mine Workers, 330 U.S. at 303-04;
see also Autotech, 499 F.3d at 752. Actual losses, that is. See S. Suburban Hous.
Ctr., 186 F.3d at 854. The government’s use of the phrases “potentially
avoided,” “the anticipated cost,” and “gains that Sherard may have achieved”
are insufficient to show actual loss; at best, the government has
“guesstimated” what the defendants may have saved by razing the
properties and remediating the lead-based paint hazards in two properties
outside the terms of the Consent Decree. This does not suffice to meet the
government’s burden of proof. See Autotech, 499 F.3d at 751-52; Trudeau, 579
F.3d at 773 (“The [movant] bears the initial burden of establishing the
baseline figure: a reasonably approximation of losses, gains, or some other
measure the court finds appropriate.”).
Nor is the Court persuaded that civil contempt sanctions predicated
on harm to “consumers at large” or “the citizens of Milwaukee” is the “type
of harm…sufficient to invoke contempt sanctions.” (Docket #194 at 7). And,
it appears, the government itself is unsure about whether such harm is
sufficient, see id. (“The issue of whether harm to consumers is sufficient to
warrant a remedy for violating the Consent Decree is not addressed by the
Seventh Circuit [in Trudeau]. Therefore, one can infer that the court [found
it sufficient].”); id. at 8 (noting that the cases the government cite “implicitly
accept that less direct harm is appropriately remedied in the context of civil
Page 10 of 16
contempt proceedings and should be considered precedent for the
circumstances of this case”).
It is true that in Trudeau and Connolly, the Seventh Circuit permitted
civil contempt sanctions to prevent unjust enrichment. See Trudeau, 579 F.3d
at 774 (“Courts can fashion contempt sanctions based on the defendant’s
unjust enrichment, even if that amount might exceed the plaintiff’s loss.”);
Connolly, 851 F.2d at 932-34. And the government relies heavily on these
cases, in essence analogizing the supposed money the defendants saved by
razing the properties and abating outside the terms of the Consent Decree,
to impermissible gains. However, Trudeau and Connolly are readily
distinguishable; both cases involved defendants selling merchandise—books
in Trudeau and shirts in Connolly—and thus civil contempt sanctions to
dislodge profits from violating a consent decree barring those sales makes
eminent sense. Here, however, there are no such sales and surely no profits
from them. To the extent that the government is arguing that cost-savings are
sufficient to warrant civil contempt sanctions, the Court declines to make that
leap in logic.
As a final matter, the Court reiterates that the defendants’ actions are
in no way acceptable, nor condoned. Mr. Sherard knows full well what
happens when a party thumbs their nose at a Court’s command and chooses
contumacy over compliance. That said, if any sanctions were warranted for
the defendants’ latest shenanigans, the Court finds that Mr. Sherard’s stint
in jail and having thousands of dollars tied up in escrow for multiple years,
are sanction enough, for now.
Page 11 of 16
2.2
The Defendants Must Comply With the Unmet
Requirements of the Consent Decree Before the Funds
in Escrow Will be Released
While the Court may have denied the government’s motion for
contempt, the defendants fare no better with their unfounded request to
vacate the consent decree. The defendants assert that “we all can agree that
the purpose of the Consent Decree was to have the lead remediated from the
subject properties. That goal and specific terms have been met.” (Docket #193
at 10) (emphasis added). Au contraire.
The defendants aver that they are entitled to relief under Federal Rule
of Civil Procedure 60(b)(5)—relief in the form of vacatur of the Consent
Decree—because it is no longer equitable to continue to enforce the Consent
Decree. (Docket #193 at 8). But, relief under Rule 60(b)(5), as it pertains to
consent decrees, requires a substantial change in circumstances, see Rufo, 502
U.S. at 383, given that “[a] consent decree is a judgment of the court that
embodies the parties’ [own] negotiated settlement of litigation.” United States
v. Jupiter Aluminum Corp., No. 07-CV-262, 2009 WL 418091, at *4 (N.D. Ind.
Feb. 18, 2009). The bar for relief under Rule 60(b)(5) is high because courts
should only exercise discretion under that rule “in exceptional situations,”
those situations that warrant overriding the important goal that a court’s
judgment be final in the fullest sense of the word. See Jupiter Aluminum, 2009
WL 418091, at *4. This case does not represent one of those exceptional
situations. At bottom, the defendants are arguing that because they have
come close to meeting all of the requirements they agreed to and it has been
nearly ten years since the Consent Decree was entered, notions of equity
require termination of the Consent Decree. Stated another way, the
defendants argue their efforts, while imperfect, have been “good enough.”
Page 12 of 16
As vexing as this case has been for all parties involved, however, compliance
with the remaining requirements is necessary to ensure the safety of current
and future tenants of these properties. The defendants’ “good enough”
argument fails because the Court will not shirk its duty to those individuals
the Consent Decree was meant to protect by ignoring the unmet requirements
of the Consent Decree. To be sure, the requirements must be met.
Paragraph 58 describes when the Consent Decree will terminate.
Subsection (c) states that the defendants must “certif[y] compliance with the
terms and conditions of this Consent Decree to the United States,” and
subsection (d) requires the United States to consent to that certification. This
requirement remains unmet. The government proposed a document for the
defendants to sign to meet this requirement, an offering the defendants
rebuffed. The Court will leave it to the parties to resolve what the final
wording of the certification will be. Whatever the wording, the defendants
have until June 1, 2015, to file the certification required by Paragraph 58.
Paragraph 16(d) (and Paragraph 19) requires that the defendants
submit an O&M plan “for those properties that are not Lead-Based Paint
Free,” which HUD must approve. This requirement remains unmet. The
defendants allege that “[t]he O&M plan requirement was a part of the
original Consent Decree but not a part of the 2009 stipulated agreement.”
(Docket #193 at 12). Other than this bald assertion, the defendants offer
nothing to support this conclusion. Rather, the O&M plan requirement, as
noted by the government, “is an important component of the Consent
Decree” because it “facilitate[s] the prompt identification and remediation of
any new lead-based paint hazards that develop on any of [Mr.] Sherard’s
properties”; this is so because these properties are categorically not lead safe
because “not all the lead-based paint was removed from these properties.”
Page 13 of 16
(Docket #194 at 10). Thus, an O&M plan to ensure that once-remediated
hazards do not return is a requirement the Court is patently unwilling to
sweep under the rug. The government has provided a draft O&M plan for
the defendants, (see Docket #192-1). Again, the final form of this plan will be
up to the parties (and subject to HUD approval), but the requirement must
be met. Thus, the defendants have until June 1, 2015, to implement an O&M
plan as required by the Consent Decree.
The Court also agrees with the government that HUD should be given
“future access to 5053 N. Elmhurst and 3249 N. 35th Street to visually inspect
for lead-based paint hazards” given that the defendants did not follow the
proper procedures as outlined in the Consent Decree. Id. at 16. If, as the
defendants assert, the lead-based paint hazards were remediated properly,
this requirement should be de minimis. If not, then the requirement will only
be as onerous as the defendant’s remediation work has been improper. The
defendants have until June 1, 2015, to file a document indicating their consent
to this requirement.
Complying with the requirements noted above should not be overly
difficult for the defendants, given that the government has already provided
the defendants with a de facto roadmap. Accordingly, the Court will
not tolerate further disagreements or quibbling about the remaining
requirements that must be met. Should the defendants fail to meet the June 1,
2015 deadline imposed by the Court (for all remaining requirements), the
Court will award stipulated penalties as outlined in the Consent Decree.
(Docket #6 at 16). Namely, “$200 per day per violation per each unit,” id.,
until all requirements have been met in full.
Page 14 of 16
3.
CONCLUSION
As outlined above, the Court is obliged to deny the government’s
motion for contempt. Rather, as the Court has noted, the defendants shall
accept the “olive branch” the government has extended, given that the
requirements in the Consent Decree that remain to be satisfied are just those
requirements the government proposed as an alternate resolution to its
motion for contempt. (See Docket #192). The defendants have until June 1,
2015, to meet those requirements, or the defendants’ remaining funds in
escrow will be reduced by the penalties noted above; any amount will be
payable to the United States, as required by the terms of the Consent Decree.
(Docket #6 at 16). Until these requirements are met, the Consent Decree will
remain in place. As soon as all of the requirements are satisfied, however, the
Court expects a joint motion to terminate the Consent Decree and release the
remaining funds in escrow to the defendants.
Finally, one housekeeping matter must be addressed. The Court notes
that there is also the remaining issue of the third-party clearance exams filed
by the defendants that failed to “technically comply with the HUD
Guidelines, as required by Paragraph 17(f) of the Consent Decree.” (Docket
#192 at 12). The Court agrees with the government that, given the
requirement that the defendants implement an O&M plan, and considering
that the properties were previously tested and cleared by the City of
Milwaukee Health Department, this minor failing need not give the Court
pause, so long as the defendants meet all of the remaining requirements. (See
id.) (noting that the “United States [also] does not object to the deficiencies in
these reports”). Consequently, the Court will not order any further clearance
exams, despite these deficiencies.
Page 15 of 16
Accordingly,
IT IS ORDERED that the government’s motion for contempt (Docket
#142) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the defendants shall have until
June 1, 2015, to satisfy the unmet requirements of the Consent Decree, as
outlined above. Failure to do so by June 1, 2015, will result in stipulated
penalties of “$200 per day per violation per each unit,” (Docket #6 at 16),
until those requirements are met in full.
Dated at Milwaukee, Wisconsin, this 22nd day of April, 2015.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
Page 16 of 16
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?