Opinion
Case No. 1:18-cv-1421
02-21-2020
CERTAIN UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO POLICY NUMBER BO 823PP1308460, et al., Plaintiffs, v. ADVANFORT COMPANY, Defendant.
ORDER
On February 3, 2020, United States Magistrate Judge Theresa Carroll Buchanan entered a Report and Recommendation ("Report") in this case, recommending (i) that defendant be held in civil contempt for its failure to comply with the Magistrate Judge's October 9, 2019 Order; (ii) that defendant be given five (5) days from the entry of this order to pay plaintiffs; (iii) that if defendant fails to pay plaintiffs within five (5) days, a daily fine of $1,000.00 be imposed until defendant complies with the Magistrate Judge's October 9, 2019 Order by paying plaintiffs $28,468.90; (iv) that plaintiffs submit a statement of reasonable attorneys' fees and costs incurred in bringing its motion for order to show cause; and (v) that plaintiffs be awarded reasonable attorneys' fees and costs related to its motion for order to show cause.
Upon consideration of the record and the Magistrate Judge's Report, to which no objections have been filed, and having found no clear error,
See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (in the absence of any objections to a magistrate's report, the court "need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'").
The Court ADOPTS, as its own, the findings of fact of the United States Magistrate Judge, as set forth in the Report (Dkt. 143).
Accordingly,
It is hereby ORDERED that plaintiffs' motion for order to show cause (Dkt. 131) is GRANTED.
It is further ORDERED that defendant is HELD IN CIVIL CONTEMPT for its failure to comply with the Magistrate Judge's October 9, 2019 Order (Dkt. 119).
It is further ORDERED that defendant has until Monday , March 3, 2020 at 5 p.m. to pay plaintiffs $28,468.90. If defendant fails to pay plaintiffs by 5 p.m. on Monday , March 3, 2020, a daily fine of $1,000.00 is imposed until defendant complies with the Magistrate Judge's October 9, 2019 Order.
For a non-compensatory fine to qualify as a civil contempt fine as opposed to a criminal contempt fine, a contemnor must be afforded an opportunity to purge such contempt. See Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994) (citing Penfield Co. of Cal. v. SEC, 330 U.S. 585, 590 (1947)). Although the Report provided a five-day period for defendant to purge its contempt before imposing a daily fine, a ten-day period of time is more reasonable in the circumstances presented here.
It is well-settled that the imposition of a daily fine to coerce a party into complying with a court's order is within a district court's civil contempt power. See Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994) (per diem fine imposed for each day a contemnor fails to comply with an affirmative court order is a civil contempt fine); United States v. Darwin Const. Co., 873 F.2d 750, 756 (4th Cir. 1989) (holding that the imposition of a fine of $5,000 per day within a district court's discretion to coerce the contemnor to comply with an IRS summons, but holding it improper to impose the fine on business holidays); Enovative Techs., LLC v. Leor, 622 F. App'x 212, 215 (4th Cir. 2015) (affirming the district court's imposition of a fine of $1,000 per day for civil contempt); see also JTH Tax, Inc. v. Lee, 540 F. Supp. 2d 642, 647 (E.D. Va. 2007) (imposing coercive fine of $500 per day for civil contempt); United States v. Anderson, No. CA 3:10-510-JFA, 2011 WL 221882, at *13 (D.S.C. Jan. 24, 2011) (imposing coercive fine of $500 per day for civil contempt); In re Gregg, 428 B.R. 345, 348 (Bankr. D.S.C. 2009) (imposing coercive fine of $500 per day for civil contempt); United States v. Renfrow, No. 5:07-CV-117(FL), 2009 WL 10690014, at *2 (E.D.N.C. Nov. 18, 2009) (imposing coercive fine of $500 per day for civil contempt). Accordingly, a coercive fine of $1,000 per day, if defendant does not comply with the Magistrate Judge's October 9, 2019 Order by 5 p.m. on Monday March 3, 2020, is reasonable in this case. Consistent with Fourth Circuit precedent, this coercive fine of $1,000 per day will not be imposed on business holidays, namely weekends and federal holidays. See United States v. Darwin Const. Co., 873 F.2d 750, 756-57 (4th Cir. 1989).
It is further ORDERED that plaintiffs submit a statement of reasonable attorneys' fees and costs incurred in bringing its motion for order to show cause. Plaintiffs are AWARDED reasonable attorneys' fees and costs related to its motion for order to show cause.
The Clerk is directed to send a copy of this Order to plaintiffs and to defendant at the address(es) listed in the case file, and to all counsel of record. Alexandria, Virginia
February 21, 2020
/s/_________
T. S. Ellis, III
United States District Judge