United States District Court,

M.D. Pennsylvania.

J.B. HUNT TRANSPORT, INC., Plaintiff

v.

LIVERPOOL TRUCKING COMPANY, INC., Defendant.

 

Civil Action No. 1:11–CV–1751.

June 7, 2012.

 

Gina M. MacNeill, Jon Michael Dumont, Rawle & Henderson LLP, Philadelphia, PA, for Plaintiff.

 

Jeffrey T. McGuire, Michael D. Reed, Caldwell & Kearns, Harrisburg, PA, for Defendant.

 

MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

Presently before the court is defendant Liverpool Trucking Company’s (“Liverpool”) Motion to Remand to State Court or to Stay (Doc. 16) the above-captioned action. Liverpool contends that the court lacks proper subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) because the amount in controversy does not exceed $75,000. Liverpool, therefore, requests this matter to be remanded to state court, or, in the alternative, stayed pending the resolution of two state workers’ compensation claims. For the reasons that follow, the court will deny the motion.

 

I. Statement of Facts and Procedural History

This case stems from an Outsource Carrier Agreement (“Agreement”) between J.B. Hunt Transport, Inc. (“J.B.Hunt”) and Liverpool dated February 29, 2008. (See Doc. 15, Ex. A). Pursuant to the Agreement, Liverpool contracted to perform certain transportation services for J.B. Hunt. (Id.). Within the Agreement’s extensive provisions, Section 2.1 establishes Liverpool’s role as an “independent contractor.” (Id.). Pursuant to Section 2.2 Liverpool agreed to “assume[ ] full responsibility and liability for the payment of … worker’s compensation … with respect to persons engaged in the performance of said transportation services.” (Id.)

 

On February 29, 2008, J.B. Hunt and Liverpool executed a Hold Harmless Covenant for Workers’ Compensation (“Covenant”). (Doc. 15, Ex. B). Signed and dated by Liverpool management, the Covenant specifies that “no certificate evidencing workers’ compensation and employers’ liability coverage will be furnished to Hunt” due to an exemption from coverage provided by state and federal law. (Id.). The Covenant also states that Liverpool agrees to fulfill the Agreement’s terms and conditions regarding the procurement of workers’ compensation should it not be exempt from coverage. (Id.). Finally, the Covenant states that, absent obtaining the required coverage, Liverpool “assumes full and complete responsibility for compensation of any and all work-related injury occurring to any of its personnel during the term of the Agreement.” (Id.).

 

On August 16, 2010, Awad Idries (“Idries”) was operating a truck for Liverpool. (Doc. 15 ¶ 13, Ex. C). In the course of two deliveries for J.B. Hunt customers, Idries was involved in a motor vehicle accident resulting in the loss of his left arm. (Id. at ¶ 14). On April 13, 2011, Idries filed a Claim Petition with the Commonwealth of Pennsylvania Bureau of Workers’ Compensation (“Bureau”), seeking benefits and listing J.B. Hunt as his statutory employer. (Doc. 15, Ex. E). Idries claims that he is statutorily entitled to at least $78,620. (Doc. 15 ¶ 28). J.B. Hunt also claims that it has expended $6,000 in legal fees in defending the workers’ compensation claim. (Id. at ¶ 29).

 

On May 14, 2011, Dane Merritt (“Merritt”) was operating a truck for Liverpool. (Doc. 15 ¶ 16, Ex. F). Like Idries, Merritt was making deliveries for J.B. Hunt customers when he became involved in a motor vehicle accident resulting in several serious injuries. On June 9, 2011, Merritt filed a Claim Petition with the Bureau, listing Liverpool as his statutory employer. (Doc. 15, Ex. G). Merritt claims lost wages totaling $365,000 and is seeking payment for medical bills and legal fees. (Doc. 15 ¶ 30, Ex. B). Thereafter, the Bureau’s Uninsured Employer Guaranty Fund filed a petition for Joinder of Additional Defendant, J.B. Hunt, averring that J.B. Hunt is the statutory employer of Merritt pursuant to Section 302(a) of the Pennsylvania Workers’ Compensation Act. (Doc. 15, Ex. H).

 

Merritt allegedly sustained “various injuries including concussion, headaches, facial contusions, and injuries to the cervical, thoracic and lumbar spine.” (Doc. 15 ¶ 17; Ex. G).

 

On September 20, 2011, J.B. Hunt instituted this action against Liverpool, invoking the court’s diversity jurisdiction and alleging that Liverpool breached the Agreement with J.B. Hunt. (Doc. 1). On December 15, 2011, J.B. Hunt filed an amended complaint. (Doc. 15). J.B. Hunt seeks damages resulting from breach of contract and a declaratory judgment finding that Liverpool has an obligation to defend and indemnify J.B. Hunt in the workers’ compensation matters. (Doc. 15 ¶ 32). On December 23, 2011, Liverpool filed the instant motion to remand the matter to state court, or, in the alternative to stay the suit pending resolution of the claims before the Bureau. (Doc. 16). Liverpool argues that the matter in controversy will not exceed $75,000 as required in federal diversity cases. See 28 U.S.C. § 1332(a). The motion has been fully briefed and is ripe for disposition.

 

II. Standard of Review

For a plaintiff to establish diversity jurisdiction, the amount in controversy must exceed $75,000 exclusive of interest and costs. 28 U.S.C. § 1332(a). The United States Supreme Court established the prevailing standard by which federal courts must consider a challenge to the amount in controversy requirement:

 

The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.

 

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288–89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). When applying this standard, federal courts must be certain that the jurisdictional threshold cannot be met before dismissal is appropriate. See, e.g., Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir.1995); Nelson v. Keefer, 451 F.2d 289, 293 (3d Cir.1971); Jaconski v. Avisun Corp., 359 F.2d 931(3d Cir.1966) (“[The test] is whether it appears to a ‘legal certainty’ that he cannot recover an amount above the jurisdictional minimum.”). This inquiry involves “minimal scrutiny” of the plaintiff’s claims without consideration of the “legal sufficiency of those claims or whether the legal theory advanced by the plaintiffs is probably unsound.” Suber v. Chrysler Corp., 104 F.3d 578, 583 (3d Cir.1997).

 

III. Discussion

With the above legal standard in mind, the court must review the complaint for failure to establish subject matter jurisdiction. The facts alleged in the complaint, taken as true, must be sufficient to invoke jurisdiction. Licata v. U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir.1994). In diversity cases, federal courts apply substantive law of the states where they sit. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) ( “Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”). The relevant question, therefore, is whether J.B. Hunt has pleaded facts that would enable it to recover more than $75,000 under Pennsylvania law. Accord Suber v. Chrysler Corp., 104 F.3d at 584 (stating that, in a diversity case, the court must apply substantive state law to determine whether the amount in controversy requirement is satisfied).

 

A. Amount in Controversy Requirement

Liverpool contends that the amount in controversy requirement has not been satisfied because recovery will be limited to attorneys fees and the amount awarded by the Bureau under Section 302(a) of the Pennsylvania Workers’ Compensation Act. (Doc. 16, at 2). Liverpool asserts that the compensation awards and attorneys fees will not exceed $75,000. (Doc. 17, at 1). Section 302(a), codified at 77 P.S. § 461 (hereinafter “Section 302(a)”), provides, in pertinent part:

 

The court must determine whether J.B. Hunt pleaded facts that conceivably would permit recovery exceeding $75,000. Liverpool concedes in its brief that there is a possible scenario in which “Plaintiff’s alleged damages would exceed the jurisdictional limit.” (Doc. 17, at 2). Hence, Liverpool appears to have answered that question in the affirmative. Notwithstanding Liverpool’s statement, the court will review the alleged facts and applicable law to determine whether the diversity jurisdiction requirements have been satisfied.

 

A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured its payment as provided for in this act. Any contractor or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable therefor.

77 P.S. § 461. Section 302(a) further provides: “a person who contracts with another … to have work performed of a kind which is a regular or recurrent part of the business, occupation, profession or trade of such person shall be deemed a contractor, and such other person a subcontractor.” Id.

 

Although Liverpool contends that the amount in controversy “will be” less than $75,000, (Doc. 17, at 1), this position is inconsistent with the standard set forth by the Supreme Court in St. Paul Mercury. Dismissal is appropriate only when the court is certain that the jurisdictional threshold cannot be satisfied. See St. Paul Mercury, 303 U.S. at 288–89. Idries filed a claim—seeking benefits for the loss of his left arm, hand, and fingers, (Doc 15, Ex. E)—in which he advised the Bureau that he is statutorily entitled to receive at least $78,000. (Doc. 15 ¶ 28). Likewise, Merritt advised the Bureau that he is statutorily entitled to receive approximately $365,000 based on lost wages alone. (Doc. 15 ¶ 30).

 

In its brief in opposition to Liverpool’s motion, J.B. Hunt supports the alleged value of the two workers’ compensation claims filed by Idries and Merritt by referencing specific provisions in the Pennsylvania Workers’ Compensation Act. For instance, J.B. Hunt states that “Idries is statutorily entitled to receive compensation for the loss of an arm in the amount of ‘sixty-six and two-thirds per centum of wages during four hundred ten weeks’ …. an additional twenty weeks for a ‘healing period’ …. [t]herefore, at a minimum, Idries is statutorily entitled to compensation in the amount of $78,620.” (Doc 16, at 4–5 (citing Sections 306(c)(3) and 206(c)(25) of the Pennsylvania Workers’ Compensation Act, codified at 77 P.S. § 513(3) and 77 P.S. § 513(25), respectively)). It is not the court’s role at this stage to determine the legal sufficiency of these claims. Rather, the court must use “minimal scrutiny” to determine whether J.B. Hunt could conceivably recover more than $75,000. See, e.g., Suber, 104 F.3d at 583.

 

After considering the St. Paul Mercury standard and the facts alleged in the complaint, the court concludes that J.B. Hunt has met the amount in controversy requirement as required by 28 U.S.C. § 1332(a).

 

Since the time of filing of Liverpool’s Motion to Remand to State Court or Stay the Action, a decision has been rendered in the workers’ compensation action filed by Idries. (Doc. 21, at 2). Judge Karl Baldys ruled that J.B. Hunt is the statutory employer of Idries through the contract with Liverpool. (Doc. 21, Ex. A, at 21). In addition, Judge Baldys ruled that J.B. Hunt is liable for Liverpool’s share—that is, 50 percent—of the determined liability. (Id.). Another company, Fuel City Truck Stop Inc., has been found to be liable for the remaining 50 percent of determined liability. (Id.).

 

B. Staying the Proceeding

The other issue for the court to consider is whether this matter should be stayed pending resolution of the workers’ compensation claims. Without providing legal or factual support for its contention, Liverpool argues that the matter should be stayed pending the Bureau’s determinations. (See Doc. 16, at 3; Doc. 17, at 4). By contrast, J.B. Hunt contends that the matter should not be stayed because the instant action relates solely to the Agreement between the parties and is entirely separate from the workers’ compensation matters. (Doc. 18, at 6).

 

The United States Supreme Court has provided clear guidance to lower courts on appropriate circumstances for a stay of proceedings. See, e.g., Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ( “[T]he power to stay any proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with the economy of time and effort for itself, for counsel, and for litigants.”). Although federal courts have such authority, a stay is an extraordinary measure that is only justified in “exceptional circumstances.” See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). See also United States v. Breyer, 41 F.3d 884, 893 (3d Cir.1994).

 

In determining whether to stay proceedings, federal courts must carefully balance competing interests. Landis, 299 U.S. at 254–55; Texaco, Inc. v. Borda, 383 F.2d 607, 608 (3d Cir.1967). It is well settled that, before a stay may be issued, the movant must demonstrate “a clear case of hardship or inequity,” if there is “even a fair possibility” that a stay would work damage on another party. Landis, 299 U.S. at 255. Other considerations outlined by the Landis Court include (1) the reasonableness of the length of stay requested, id. at 257, and (2) whether the stay would simplify issues and promote judicial economy, id. at 256. These factors must be incorporated in the court’s ultimate calculus in which it weighs “the benefit and hardship” of staying the proceeding. See id. at 259.

 

After careful consideration of the Landis factors, the court concludes that Liverpool’s request should be denied. Liverpool fails to provide justification for staying the proceeding other than stating that it would “obviate the need to litigate this case.” However, since the filing of Liverpool’s motion, the Bureau determined that J.B. Hunt is the statutory employer of Idries and is therefore liable for the determined liability. (Doc. 21, Ex. A, at 22). The decision also stated: “This order is without prejudice to the contractual rights … of J.B. Hunt … against Liverpool.” (Id.). Accordingly, resolution of the two compensation claims will not resolve J.B. Hunt’s breach of contract claim nor will it automatically provide J.B. Hunt with a right of recovery against Liverpool.

 

The court also concludes that moving forward with the instant matter will simplify the issues in this case and promote judicial economy. The court’s findings concerning the Agreement and the indemnification remedy provided by Section 302(a) of the Workers’ Compensation Act will ultimately determine who bears liability for the compensation benefits. Moreover, moving forward with the instant matter will resolve all other issues concerning damages arising from the alleged breach of contract claim.

 

Finally, the court finds that J.B. Hunt would be prejudiced should the court grant the motion to stay the action. At present, J .B. Hunt is required to pay the determined liability in the workers’ compensation claim filed by Idries. (Doc. 21, Ex. A, at 21–22). By contrast, Liverpool does not bear any liability for either of the workers’ compensation claims. Liverpool has not demonstrated “a clear case of hardship or inequity” in moving forward. Landis, 299 U.S. at 255. All of these considerations conclusively weigh against the issuance of a stay.

 

IV. Conclusion

For the foregoing reasons, Liverpool’s Motion to Remand to State Court or to Stay the Action (Doc. 16) will be denied. An appropriate order follows.

 

ORDER

AND NOW, this 7th day of June, 2012, upon consideration of the Motion to Remand to State Court or to Stay the Action (Doc. 16), filed by defendant Liverpool, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that the motion (Doc. 16) is DENIED.

United States District Court,

S.D. Ohio,

Western Division.

TOTAL QUALITY LOGISTICS, LLC, Plaintiff

v.

TW TRANSPORTATION SOLUTIONS, LLC, Defendants.

 

No. 1:11–cv–183.

June 6, 2012.

 

James Allen Jones, III, Benesch, Friedlander, Coplan & Aronoff LLP, Columbus, OH, for Plaintiff.

 

TW Transportation Solutions, LLC, c/o Trevor Westrom, Dodge Center, MN, pro se.

 

REPORT AND RECOMMENDATION

KAREN L. LITKOVITZ, United States Magistrate Judge.

Plaintiff Total Quality Logistics, LLC (“TQL”) brings this civil action against defendant TW Transportation Solutions, LLC (“TW Transportation”) alleging a claim of breach of contract and violations of the Carmack Amendment, 49 U.S.C. § 14706, resulting from the damage of goods by a motor carrier during the interstate shipment of the goods. This Court has diversity jurisdiction under 28 U.S.C. § 1332 and original jurisdiction over an action arising out of an Act of Congress regulating commerce under 28 U.S.C. § 1337.

 

This matter is before the Court on plaintiff TQL’s motion for an order to show cause why defendant TW Transportation and Mr. Trevor Westrom, the owner of TW Transportation, should not be found in contempt of court and TQL’s request for sanctions (Doc. 24), and supplemental brief in support of contempt finding and request for sanctions (Doc. 29), to which defendant has not responded. A hearing on the motion was held before the undersigned on May 15, 2012, at which neither TW Transportation nor Mr. Westrom appeared.

 

For the reasons that follow, it is recommended that a show cause order be issued to defendant TW Transportation Solutions, LLC and Mr. Trevor Westrom to appear before the district judge on a date certain and show cause why they should not be held in contempt of court.

 

The undersigned magistrate judge issues a report and recommendation and a certification of contempt under 28 U.S.C. § 636(e)(6)(B)(iii) because the relief sought by plaintiff TQL exceeds the magistrate judge’s contempt authority. See U.S. v. Andriacco, 106 F.Supp.2d 991, 995 n. 3 (S.D.Ohio 1999).

 

I. MAGISTRATE JUDGE’S AUTHORITY ON MOTION FOR CONTEMPT

Section 636(e) of the United States Magistrate Judges Act governs the contempt authority of magistrate judges. 28 U.S.C. § 636(e)(1). That section provides that a “magistrate judge serving under this chapter shall have within the territorial jurisdiction prescribed by the appointment of such magistrate judge the power to exercise contempt authority as set forth in this subsection.” In civil cases where the parties have not consented to final judgment by the magistrate judge, contempt is governed by Section 636(e)(6)(B):

 

(6) Certification of other contempts to the district court.-Upon the commission of any such act—

 

….

 

(B) in any other case or proceeding under subsection (a) or (b) of this section, or any other statute, where-

 

(i) the act committed in the magistrate judge’s presence may, in the opinion of the magistrate judge, constitute a serious criminal contempt punishable by penalties exceeding those set forth in paragraph (5) of this subsection,

 

(ii) the act that constitutes a criminal contempt occurs outside the presence of the magistrate judge, or

 

(iii) the act constitutes a civil contempt,

 

the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.

 

28 U.S.C. § 636(e)(6)(B).

 

The magistrate judge’s role on a motion for contempt in non-consent cases is to certify facts relevant to the issue of contempt to the district judge. See, e.g., International Brotherhood of Electrical Workers, Local 474 v. Eagle Electric Co., Inc., No. 06–2151, 2007 WL 622504, at *1, n. 1 (W.D.Tenn. Feb.22, 2007); U.S. v. Ivie, No. 05–2314, 2005 WL 1759727, at *1, n. 1, and(W.D.Tenn. June 14, 2005). See also NXIVM Corp. v. Bouchey, No. 1:11–mc–0058, 2011 WL 5080322, at(N.D.N.Y. Oct.24, 2011) (and cases cited therein). “The certification of facts under section 636(e) serves to determine whether the moving party can adduce sufficient evidence to establish a prima facie case of contempt.” Telebrands Corp. v. Marc Glassman, Inc., No. 3:09cv734, 2012 WL 1050018, at(D.Conn. March 28, 2012) (quoting Church v. Steller, 35 F.Supp.2d 215, 217 (N.D.N.Y.1999)).

 

II. CERTIFIED FACTS

The following facts are certified to the district court: Plaintiff TQL commenced this action on March 28, 2011, against defendant TW Transportation alleging federal and state law claims in connection with defendant’s failure to deliver a refrigerated shipment of hummus in accordance with the terms of the bill of lading and rate confirmation governing the shipment. Defendant failed to answer or otherwise respond to the complaint and on July 20, 2011, the Court granted a default judgement in TQL’s favor in the amount of $82,890.45, plus post-judgment interest and costs.

 

In aid of the judgment, TQL served post-judgment interrogatories and requests for production of documents on defendant TW Transportation on August 10, 2011. TW Transportation failed to respond to the discovery requests within the time allotted by the federal rules. On September 19, 2011, counsel for TQL sent correspondence via electronic and regular mail to defendant regarding its past-due responses to the discovery requests in accordance with Fed.R.Civ.P. 37(a) and S.D. Ohio Civ. R. 37.1. TQL’s correspondence advised that if defendant failed to respond by October 3, 2011, TQL would file a motion to compel responses with the Court. That same date, Trevor Westrom contacted plaintiff’s counsel by telephone. TQL’s counsel reiterated the subject matter of the September 19, 2011 correspondence and provided Mr. Westrom with a second copy of the discovery requests by electronic mail.

 

Defendant failed to respond to the discovery requests, and TQL moved the Court to compel the responses. On November 29, 2011, the Court granted TQL’s motion to compel and ordered defendant TW Transportation to produce the requested discovery within fourteen days of the Order, i.e., by December 13, 2011. Defendant TW Transportation failed to provide the requested discovery and on December 19, 2011, counsel for TQL sent correspondence via electronic and regular mail to defendant c/o Mr. Westrom regarding the discovery requests. The correspondence explained that if responses to the discovery requests were not received on or before December 23, 2011, TQL would request a Court order directing defendant to show cause why it should not be held in contempt for failing to comply with the Court’s November 29, 2011 Order and TQL would also request sanctions. Defendant TW Transportation failed to respond to TQL’s discovery requests.

 

TQL filed a motion for an order to show cause why defendant TW Transportation and Mr. Trevor Westrom should not be found in contempt of court and a request for sanctions. Pursuant to the motion, the Court ordered defendant TW Transportation and Mr. Westrom to appear before this Court on Tuesday, May 15, 2012 at 1:30 p.m. in Courtroom 708 to show cause why they should not be held in contempt of this Court. An acknowledgment of service of the Court’s show cause order by certified mail on defendant was docketed by the Clerk on April 12, 2012. TW Transportation and Mr. Westrom failed to appear at the May 15, 2012 hearing, failed to notify the Court that they would not be present, and failed to seek a continuance or otherwise object. TQL appeared at the hearing and asked that TW Transportation and Mr. Westrom be ordered to comply with the Court’s order compelling discovery, be subject to sanctions including attorney fees and expenses incurred by TQL in obtaining the order to show cause, and be held in contempt of court for failing to appear and comply with the order to compel discovery.

 

III. ANALYSIS

TW Transportation and Mr. Westrom’s conduct constitutes disobedience of the November 29, 2011 Order of the Court compelling discovery. Federal Rule of Civil Procedure 37(b)(2)(A)(vii) provides that where a party or party’s officer, director, or managing agent fails to obey an order to permit discovery, the Court may issue further just orders, including “treating as contempt of court the failure to obey any order….” The contempt power of the court “enforce[s] the message that court orders and judgments are to be complied with in a prompt manner.” IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir.2003) (citing NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th Cir.1987)). In a contempt proceeding, the moving party must demonstrate “by clear and convincing evidence that the party to be held in contempt violated a court order.” U.S. v. Conces, 507 F.3d 1028, 1042 (6th Cir.2007); Gary’s Elec. Serv. Co., 340 F.3d at 379. “Once the movant establishes his prima facie case, the burden shifts to the contemnor who may defend by coming forward with evidence showing that he is presently unable to comply with the court’s order.” Gary’s Elec. Serv. Co., 340 F.3d at 379. To satisfy this burden, “a defendant must show categorically and in detail why he or she is unable to comply with the court’s order.” Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir.1996) (quotation omitted). The Court must consider whether the defendant “took all reasonable steps within [its] power to comply with the court’s order.” Gary’s Elec. Serv. Co., 340 F.3d at 379 (quotation omitted).

 

In the instant case, defendant TW Transportation and Trevor Westrom’s failure to respond to the Court’s order compelling discovery and failure to appear before the Court after being ordered to do so by the undersigned magistrate judge constitutes disobedience of lawful court orders and thus contempt before the magistrate judge. In addition, Mr. Westrom, as “manager” and/or “owner” of TW Transportation (Doc. 29, Exh. A; Doc. 1, Exh. 1)  is responsible for taking all reasonable steps to comply with the Court’s orders. In Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911), the Supreme Court observed:

 

Mr. Westrom also represented himself “as the defendant” in making an answer to the complaint. (Doc. 29, Exh. B). The answer was subsequently stricken by the Court. (Doc. 10).

 

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.

Id. at 376. See also Gary’s Elec. Serv. Co., 340 F.3d at 379 (sole owner of company, “as an officer of the corporation and the one responsible for the corporation’s affairs, was subject to the court’s order just as the corporation itself was” and district court had authority to hold owner in contempt for his failure to take appropriate action within his power for performance of the corporate duty); Williamson v. Recovery Ltd. Partnership, No. C2–06–292, 2009 WL 3172656, at(S.D.Ohio Sept.30, 2009) (citing Wilson and concluding that the “same is undoubtedly true as to a limited partnership or a limited liability corporation.”), aff’d in part and rev’d in part on other grounds, Williamson v. Recovery Ltd. Partnership, Nos. 09–4253, 09–4255, 2012 WL 171385 (6th Cir. Jan.30, 2012). TW Transportation and Mr. Westrom have not shown they have taken any steps, let alone “reasonable” steps, to comply with this Court’s order compelling discovery. Nor did TW Transportation and Mr. Westrom appear in Court on May 15, 2012 to explain why they failed to comply with the Court’s discovery order.

 

Accordingly, it is submitted that the district judge should issue a show cause order to defendant TW Transportation and Trevor Westrom to appear at a date certain before the district judge to show cause during a hearing why they should not be held in contempt of court for failing to obey the Court’s November 29, 2011 discovery order.

 

In addition, TQL should be granted attorney fees and expenses they incurred in obtaining the order to show cause why TW Transportation and Trevor Westrom should not be found in contempt of court. (Doc. 26). The Court previously directed TQL to file a memorandum in support of the amount of such expenses by May 11, 2012, for the Court’s consideration. Id. Upon review of the memorandum and affidavit filed by TQL in accordance with the Court’s order (Doc. 27), the Court finds an award of $2,080.00 to be reasonable and recommends that defendant TW Transportation and Trevor Westrom be ordered to pay TQL the sum of $2,080.00 for expenses incurred in connection with TQL’s motion for order to show cause.

 

IV. CONCLUSION

It is hereby RECOMMENDED: (1) that the district judge should issue a show cause order to defendant TW Transportation and Trevor Westrom to appear at a date certain before the district judge to show cause during a hearing why they should not be held in contempt of court for failing to obey the Court’s November 29, 2011 discovery order; and (2) that defendant TW Transportation and Trevor Westrom be ordered to pay TQL the sum of $2,080.00 for expenses incurred in connection with TQL’s motion for order to show cause.