Commercial Litigation and Arbitration

Civil Contempt Standards — Order Directed at Non-Party Corporate Employer and Party Employees — Contempt for Failure to Apprise Supervisors of Order and Obtain Corporate Enforcement — Good Faith and Substantial Compliance No Defense to Contempt

From Roslies-Perez v. Superior Forestry Serv., Inc., 2009 U.S. Dist. LEXIS 65112 (M.D. Tenn. July 28, 2009):

Plaintiffs, temporary foreign guestworkers with H-2B visas, filed this action as a collective action against the Defendants: Superior Forestry Services, Inc. and several of its owners and managers seeking injunctive relief and back wages under the Fair Labor Standards Act ... ("FLSA") and the Migrant and Seasonal Agricultural Worker Protection Act ... ("AWPA"). The Court certified this action as a collective action under the FLSA ... and under Fed. R. Civ. P. 23(b)(3) on Plaintiffs' AWPA claims....

As pertinent here, in prior rulings, the Court twice held the Defendants in contempt for their repeated violations of the May 23, 2006 Protective Order ... in this action.... In its September 5, 2008 ruling, the Court first found that one of Defendants' supervisors had violated the May 23rd protective order by communicating with putative class members on the merits of this litigation and that Defendants had failed to take necessary action to prevent such violations.... The Court also found that Defendants had violated a subsequent Court directive that the Defendants' agents instruct their crew leaders again about the May 23rd protective order. Given the history of Defendants' derisive statements about this action and their clear noncompliance, the Court found a "strong inference that their clear failure to comply . . . was to threaten workers with adverse job and other consequences if they joined this action." ... As a remedy, the Court ... ordered Defendants to pay for a broadcast notice of class counsel's meeting with potential class members in Mexico, as well as fees and costs associated with class counsel's arranging and conducting meetings with putative class members. This meeting was to provide putative class members a balanced view of this action and to inform potential class members of their rights under the FLSA and AWPA. The Court also ordered Defendants to pay Plaintiffs' fees and costs incurred in litigating the contempt petition.

Before the Court is Plaintiffs' third motion for contempt ... for Defendants' additional violations of the Court's May 23rd protective order and their interference with the remedies imposed in the Court's prior contempt orders.... Plaintiffs' third contempt motion arises out of an incident at the Mexico meeting involving Manuel Morales, Defendants' recruiter and supervisor in Mexico. Morales is also named Defendant in this action. In sum, Plaintiffs contend that on November 12, 2008, while Plaintiffs' counsel were in Tlaxiaco, Mexico to meet with class members and potential class members, as ordered by the Court, Morales came to the meeting location and monitored Plaintiffs' counsel's meetings over several hours. Plaintiffs submitted evidence that Morales intentionally went to the designated meeting location after hearing one of the radio announcements of the meeting's time and place. After Plaintiffs' counsel approached Morales to tell him that his presence was unwelcomed and that he could face a contempt petition for violation of the Court's Order, Morales refused to leave. According to Plaintiffs, Morales fielded a telephone call from a potential class member and talked to him about this action. Plaintiffs contend that Morales's behavior, and Morales's supervisor's failure to take any steps to prevent his conduct at that meeting, violate the May 23rd protective order and undermined the Court's remedy to cure Defendants' contempt. Plaintiffs further contend that Defendants' prior collective conduct warrants a partial default judgment on the merits.


"The inherent powers of federal courts are those which 'are necessary to the exercise of all others.' The most prominent of these is the contempt sanction, 'which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court . . . ." Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980) (internal citations omitted); Shillitani v. United States, 384 U.S. 364, 370, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966) ("There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt."). "While the contempt power should not be used lightly, it is 'a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed.'" Southern Elec. Health Fund v. Bedrock Servs., No. 3:02-0309, 2005 U.S. Dist. LEXIS 43999, at *21 (M.D. Tenn. Nov. 18, 2005) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911)).

"[A]ll orders and judgments of courts must be complied with promptly," Maness v. Meyers, 419 U.S. 449, 458, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975), and failure to comply can result in contempt findings. Southern Elec., 2005 U.S. Dist. LEXIS 43999, at *21 ("Contempt proceedings are used 'to enforce the message that court orders and judgments are to be complied with in a prompt manner.'") (quoting Gompers, 221 U.S. at 450)).

"In a civil contempt proceeding, the petitioner must prove by clear and convincing evidence that the respondent violated the court's prior order." Glover v. Johnson, 934 F.2d 703, 704-707 (6th Cir. 1991) (citing NLRB v. Cincinnati Bronze. Inc., 829 F.2d 585, 590 (6th Cir. 1987)). See also Electrical Workers Pension Trust Fund of Local Union # 58, IBEW v. Gary's Electric Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) ("IBEW"). Any ambiguities in the order must be resolved in favor of the alleged contemnor. Grace v. Center for Auto Safety, 72 F.3d 1236, 1241 (6th Cir. 1996). The order must be "read in light of the issues and the purpose for which the suit was brought," Cohn v. Kramer, 136 F.2d 293,295-96 (6th Cir. 1943) (quoting Terminal R.R. Ass'n v. United States, 266 U.S. 17,29, 45 S. Ct. 5, 69 L. Ed. 150 (1924)), and evidence of noncompliance "must constitute a plain violation of the decree so read." Id.

Good faith is not a defense to civil contempt. Peppers v. Barry, 873 F.2d 967, 969 (6th Cir. 1989). Upon proof of a violation, the respondent may defend with a showing of impossibility. IBEW, 340 F.3d at 379; Glover, 934 F.2d at 708 n.2. The test is whether "'the [respondents] took all reasonable steps within their power to comply with the court's order." Id. at 708 (quoting Peppers, 873 F.2d at 969). "Substantial compliance" is not a defense to a contempt motion. Maness, 419 U.S. at 458. Under Peppers, "the defendants [must take] all reasonable steps within their power to comply with the court's order," 873 F.2d at 969. Here, the Defendants' efforts to inform their supervisors of the protective order, and the Court's additional warnings, were again non-existent or at best half-hearted. The record reflects that Defendants earlier circulated a memorandum in a language that most of its employees and agents cannot read.

By express terms, the May 23, 2006 Order "extended not only to the Defendants, but also to [Defendant] SFSI's employees and agents." ... The language of Paragraph 1 of the May 23, 2006 Order is clear and unequivocal in this regard.... Further, as a matter of law,

a command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt.

IBEW, 340 F.3d at 380 (quoting Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771 (1911)).

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