United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
Peter Denton and Harvest Investors, L.P. have filed a Motion
to Enforce Attorneys' Fee Award [Dkt. No. 182]. This
motion has been referred to the undersigned United States
magistrate judge for determination under 28 U.S.C. §
636(b). See Dkt. No. 46.
parties met and conferred on this motion and continue to
disagree. At the Court's direction, see Dkt. No.
199, Defendant Rudolf Suter filed a response, Dkt. No. 200,
and Plaintiffs filed a reply, Dkt. No. 204.
Plaintiffs have requested a hearing on this motion, the Court
finds that there is no need for one.
reasons explained below, the Court DENIES Plaintiffs Peter
Denton and Harvest Investor L.P.'s Motion to Enforce
Attorneys' Fees Award [Dkt. No. 182].
January 19, 2016, the Court ordered Defendant Rudolf Suter
to, by March 21, 2016, pay $3, 919.50 for Plaintiffs'
attorneys fees in connection with their Motion for Sanctions,
Contempt and to Compel [Dkt. No. 170]. Mr. Suter has yet to
pay these fees. See Dkt. No. 198 at 5
(“Defendant's Position: Mr. Suter agrees
that the $3, 919.50 award in Dkt. No. 170 has not been
paid.”) (emphasis in original).
have filed a motion to enforce the fee award in question.
They specifically contend that Mr. Suter should be ordered to
immediately pay them the fee award and that he “should
not be released from custody until this unpaid court ordered
award is satisfied.” See Dkt. No. 182 at 1-2.
Suter responds that, in the absence of a finding on civil or
criminal contempt, “[t]here is no legal mechanism for
imprisoning a person until judgment - or an attorneys'
fee award - is paid.” See Dkt. No. 200 at 2
(citing 28 U.S.C. § 2007; In re-White Robinson,
777 F.3d 792, 796 (5th Cir. 2015)). And he concludes that
Plaintiffs' motion fails because they have not filed a
motion to show cause or otherwise provided Plaintiffs with
notice that an order of incarceration could be issued for his
failure to pay them the $3, 919.50 fee award.
reply, Plaintiffs newly contend that the Court could elect to
restrict Mr. Suter's travel or impose some other suitable
restriction on Mr. Suter to ensure that he pays them the fee
award. But the Court “does not entertain arguments
raised for the first time ... in a reply.” Contrieu
Corp. v. Pura Vido Tequila Co., LLC, No. 3:12-cv-2257-N,
2012 WL 12886422, at *1 n.1 (N.D. Tex. Oct. 2, 2012).
Standards and Analysis
have asked the Court to enter an order that would keep Mr.
Suter incarcerated until he pays the fee award in question.
By so doing, they appear to be asking the Court to enter
civilly sanction Mr. Suter to coerce him into paying the $3,
919.50 fee award. See Lyn-Lea Travel Corp. v. Am.
Airlines, Inc., 283 F.3d 282, 290-91 (5th Cir. 2002)
(“A contempt order is civil in nature if the purpose of
the order is (1) to coerce compliance with a court order or
(2) to compensate a party for losses sustained as a result of
the contemnor's actions.”).
motion is consequently premature. Only “[u]pon a
finding of contempt” does “the district court
ha[ve] broad discretion [to] assess sanctions to protect
the sanctity of its decrees and the legal process.”
Test Masters Educational Services, Inc. v. Singh,
428 F.3d 559, 582 (5th Cir. 2005) (citing Mercury Air
Group, Inc. v. Mansour, 237 F.3d 542, 548-49 (5th Cir.
Court has not yet entered any findings that Mr. Suter is in
contempt for his failure to pay the fee award in question.
And, as Mr. Suter correctly notes, “Plaintiffs have not
sought a further finding of contempt for Mr. Suter's
nonpayment of the award. They have filed no motion to show
cause or otherwise given notice of an intent to seek a second
contempt sanction, civil or criminal, upon which a further
order of incarceration could be based.” Dkt. No. 200 at
2-3. Plaintiffs do not appear to dispute this