United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
R. JONES United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Contempt and to Enforce and Motion for Sanctions. (ECF No.
initiated this case on November 15, 2016, and thereafter
served summonses on Defendant Sui Generis Endeavors, LLC
(“Sui Generis”) and Defendant Jamario Ridley
(“Ridley”) on December 21, 2016. (ECF Nos. 1,
4-5.) After Sui Generis and Ridley failed to answer or appear
the Clerk entered default against them on February 6, 2017.
(ECF No. 8.) The Court then entered default judgment against
Sui Generis and Ridley on June 15, 2017, in the amount of
$19, 441.20, and $17, 123.32, respectively. (ECF No. 13.)
effort to collect on the judgment Plaintiff served collection
interrogatories and collection requests for production on
Defendants under Fed.R.Civ.P. 69 on June 29, 2017. (ECF No.
14, Ex. A.) Having received no response Plaintiff's
counsel sent correspondence to Defendants on January 23, 2018
in an effort to resolve the matter. (Id., Ex. B.) By
February 12, 2018, however, Defendants had failed to respond.
(ECF No. 14.) In a further effort to obtain responses to the
discovery requests Plaintiff filed a motion to compel and
motion for sanctions on February 12, 2018. (ECF No. 14.)
Court granted Plaintiff's motion to compel on February
13, 2018, and ordered Defendants to “provide Plaintiff
with full and complete responses to Plaintiff's
Collection Interrogatories and produce all documents
responsive to Plaintiff's Collection Requests for
Production of Documents, ” by February 23, 2018. (ECF
No. 15 at 3.) The Court also granted Plaintiff's request
for sanctions and awarded Plaintiff $500.00 in attorneys'
fees and costs, noting that “Defendants have entirely
avoided and refused to cooperate with the litigation of this
case, ” which “is unacceptable and will not be
has now filed the instant motion, representing that as of
March 9, 2018, Defendants have failed to comply with the
Court's February 13, 2018 order. (ECF No. 16.) Defendants
have not provided Plaintiff with responses to the Collection
Interrogatories or Collection Requests for Production, nor
have Defendants made any contact with Plaintiff or counsel
for Plaintiff. Plaintiff therefore requests the Court to find
Defendants in willful contempt for their failure to comply
with the Court's order. Plaintiff also requests an award
of reasonable attorney's fees incurred in bringing the
instant motion under Fed.R.Civ.P. 37(a)(5).
have inherent power to enforce compliance with their lawful
orders through civil contempt. Citronelle-Mobile
Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th
Cir. 1991). “A party seeking civil contempt bears the
initial burden of proving by clear and convincing evidence
that the alleged contemnor has violated an outstanding court
order.” Commodity Futures Trading Comm'n v.
Wellington Precious Metals, Inc., 950 F.2d 1525, 1529
(11th Cir. 1992) (citations omitted). The burden then shifts
to the alleged contemnor, who may defend his failure.
Id. (citing United States v. Rylander, 460
U.S. 752, 757 (1983)). If the alleged contemnor makes a
sufficient showing of inability to comply, the burden then
shifts back to the party seeking civil contempt to prove
ability to comply. Id. (citations omitted). “A
finding of civil contempt must be supported by clear and
convincing evidence that: 1) the allegedly violated order was
valid and lawful; 2) the order was clear and unambiguous;
and, 3) the alleged violator had the ability to comply with
the order.” Mesa v. Luis Garcia Land Serv.,
Co., 218 F.Supp.3d 1375, 1380 (S.D. Fla. 2016) (citing
F.T.C. v. Leshin, 618 F.3d 1221, 1232 (11th Cir.
imposed for civil contempt to coerce compliance “cannot
be any greater than necessary to ensure such compliance,
” and may not be so excessive that they are essentially
punitive in nature. Citronelle-Mobile Gathering, 943
F.2d at 1304. Sanctions for civil contempt may include
“a coercive daily fine, a compensatory fine,
attorneys' fees and expenses . . . and coercive
incarceration.” Id. “Coercive
incarceration is within the inherent power of the Court,
insofar as it depends on the contemnor's ability to
comply, thereby purging himself of contempt, and is designed
to coerce, rather than punish and therefore the ordinary
requirements of due process do not attach.”
Mesa, 218 F.Supp.3d at 1380 (citing Shillitani
v. United States, 384 U.S. 364, 369-70 (1966);
S.E.C. v. Solow, 396 Fed.Appx. 635 (11th Cir.
if Defendants fail to comply within the fourteen day period
for filing objections to this report and recommendation they
should be ordered to appear before the Court to show cause
why they should not be held in civil contempt and
incarcerated. The Defendants have violated the Court's
clear and unambiguous order. The Court has already imposed
attorney's fees for failure to respond and therefore it
is unlikely that imposing additional fines or attorney's
fees will be sufficient to coerce Defendants to comply.
Plaintiff's request for attorneys' fees should be
granted. See Fed. R. Civ. P. 37(a)(5)(A). Defendants
have entirely avoided and refused to cooperate with the
litigation of this case. This is unacceptable and should not
be tolerated. Although Plaintiff has not requested a specific
amount in attorneys' fees, for the sake of efficiency
Plaintiff should be awarded $500.00 in attorneys' fees.
In the event that Defendants contest the reasonableness of
this award they should file a motion within the fourteen day
period in which to object to this report and recommendation.
respectfully RECOMMENDED that:
1. Plaintiff's Motion for Contempt and to Enforce and
Motion for Sanctions, ECF No. 16, should be
GRANTED to the extent that if responses to
Plaintiff's Collection Interrogatories and Collection
Requests for Production are not provided within the Page
6 of 6 fourteen day period to object to this report and
recommendation this matter should be referred to a magistrate
judge for the issuance of a show cause order for Defendants
to appear before the Court to show cause why they should not
be held in civil contempt and incarcerated.
2. Plaintiff should be awarded attorney's fees in the sum
of $500.00. Defendants should be directed to submit payment
for the attorney's fees to counsel for Plaintiff within
thirty (30) days of the date of the ...