United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. Mazzant, Judge
before the Court is Sea Wasp, LLC's Motion for Sanctions
and for Contempt Against Lisa Katz (Dkt. #184). Having
considered the motion and the relevant pleadings, the Court
finds that the Motion is DENIED as moot.
full discussion of the facts surrounding the background for
the present Motion, see Dkt. #263. This Motion concerns Sea
Wasp's allegations that Lisa Katz has acted in a manner
to obstruct the Court's Orders by failing to appear at
multiple depositions in bother her personal and corporate
capacity (Dkt. #184). Domain Protection opposes Sea
Wasps' Motion and maintains that any notice provided to
Katz were defective. The Court now considers Sea Wasp's
Rule of Civil Procedure 37 authorizes sanctions for failure
to comply with discovery orders. A court may bar the
disobedient party from introducing evidence, or it may direct
that certain facts shall be “taken to be established
for purposes of the action.” Fed.R.Civ.P.
37(b)(2)(A)(i). Rule 37 also permits a court to strike claims
from the pleadings, and even to “dismiss the action . .
. or render a judgment by default against the disobedient
party.” Roadway Express, Inc. v.
Piper, 447 U.S. 752, 763 (1980) (citation omitted);
accord Fed. R. Civ. P. 37(b)(2)(A)(v)-(vi).
“Rule 37 sanctions must be applied diligently both
‘to penalize those whose conduct may be deemed to
warrant such a sanction, [and] to deter those who might be
tempted to such conduct in the absence of such a
deterrent.”' Roadway Express, 447 U.S. at
763-64 (citation omitted).
addition, Rule 37(b)(2) requires that any sanction be just
and specifically related to the particular claim that was the
subject of the discovery violation. Compaq Comput. Corp.
v. Ergonome Inc., 387 F.3d 403, 413 (5th Cir. 2004)
(citation omitted). Further, the penalized party's
discovery violation must be willful. United States v.
$49, 000 Currency, 330 F.3d 371, 376 (5th Cir. 2003).
possess the inherent authority to enforce their own
injunctive decrees.” Travelhost, Inc. v.
Blandford, 68 F.3d 958, 961 (5th Cir. 1995) (citing
Waffenschmidt v. MacKay, 763 F.2d 711, 716 (5th Cir.
1985), cert. denied, 474 U.S. 1056 (1986)). A court
may enforce its orders through civil contempt, which is
intended to compel obedience to a court order. See In re
Bradley, 588 F.3d 254, 263 (5th Cir. 2009) (“If
the purpose of the sanction is to punish the contemnor and
vindicate the authority of the court, the order is viewed as
criminal. If the purpose of the sanction is to coerce the
contemnor into compliance with a court order, or to
compensate another party for the contemnor's violation,
the order is considered purely civil.”). “A party
commits contempt when he violates a definite and specific
order of the court requiring him to perform or refrain from
performing a particular act or acts with knowledge of the
court's order.” SEC v. First Fin. Group of
Texas, Inc., 659 F.2d 660, 669 (5th Cir. 1981). In a
civil contempt proceeding, the movant bears the burden of
establishing the elements of contempt by clear and convincing
evidence. SEC v. Res. Dev. Int'l LLC, 217
Fed.Appx. 296, 298 (5th Cir. 2007) (citing Petroleos
Mexicanos v. Crawford Enter., Inc., 826 F.2d 392, 401
(5th Cir. 1987)). “Clear and convincing evidence is
that weight of proof which produces in the mind of the trier
of fact a firm belief or conviction . . . so clear, direct
and weighty and convincing as to enable the fact finder to
come to a clear conviction, without hesitancy, of the truth
of the precise facts of the case.” Shafer v. Army
& Air Force Exch. Serv., 376 F.3d 386, 396 (5th Cir.
2004), opinion clarifiedNo. 03-10074, 2004 WL
2107672 (5thCir. Sept. 17, 2004).
elements of contempt that the movant must prove by clear and
convincing evidence are: (1) a court order is or was in
effect; (2) the order requires certain conduct; and (3) the
opposing party fails to comply with the court order.
See Martin v. Trinity Indus., Inc., 959
F.2d 45, 47 (5th Cir. 1992).
Wasp alleges that Lisa Katz has failed to appear at multiple
depositions in both her personal and corporate capacity (Dkt.
#184). The Court has ordered Katz to appear for deposition by
November 19, 2019 in Dkt. #263. Accordingly, the present
Motion is denied as moot. Should Katz fail to comply with the