Ashford v. East Coast Express Eviction

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

) HARRY JAKEYIA ASHFORD, et aI., ) ) . , Plaintiffs, ) ) Civil Case No. 06-1561 (RJL) ~ ) ) EAST COAST EXPRESS EVICTION ) et aI., ) ) Defendants. W MEMORANDUM ORDER (March ~ 2011) [##1&5, 189]

Presently before this Court are plaintiffs' Motions for Civil Contempt against

defendants Vincent Crawford and Crawford & Crawford (collectively Crawford

defendants"), Nelson Terry and East Coast Express Eviction (collectively "East Coast

defendants"), Choya Lord Rodriguez and Platinum Realtor Service, Inc. (collectively·

"Platinum defendants"), and Irwen Staten and Butch Enterprises, Inc. (collectively.

"~utch defendants").

On January 28,2010, this Court issued a partial defaultjudgm~nt,ordering the

Crawford defendants, East Coast defendants and Platinum defendants to ~'pay' their : ''':, . ~- '" .

employees at least the minimum wage applicable in the jurisdiction, wh~re the' employe~s, -':

perform their work" and to "maintain records for all employees as required by :mini~um. ... ~ . . . -.' . .

wage laws of the jurisdiction where the employees perform their work:'; -Partial Default

J. and Order, Jan. 28, 2010. On March 5, 2010, this Court issued a parthiljudgme~t,

1 ordering the Butch defendants to likewise pay their employees the mandatory minimum

wage and maintain the requisite records. Mem. Order and Partial J., Mar. 5,2010.

On May 13,2010, plaintiffs filed a motion for civil contempt against East Coast

defendants, Platinum defendants and Butch defendants. On June 14,2010, plaintiffs filed

a motion for civil contempt against Crawford defendants. The motions allege that the

defendants have failed to comply with this Court's orders from January 28, 2010 and

March 5, 2010, continuing to consistently pay wages below the minimum wage. In

support of their motions, plaintiffs submitted affidavits by various employees of the

defendants, detailing the fact of their employment and the wages received from

defendants. This Court did not receive responsive pleadings from East Coast defendants,

Platinum defendants or Crawford defendants. On June 30, 2010, Butch defendants

opposed the motion against them claiming that the affidavits are either insufficiently

detailed or, in the case of the affidavit by Maurice Osbourne, that the affiant was not, in

fact, employed by the Butch defendants.

Under Local Rule of Civil Procedure 7(b), the court may treat a motion as

conceded if an opposing party fails to file a memorandum in opposition within the

prescribed time limit. LCvR 7(b); see also Fox v. Am. Airlines, Inc., 389 F.3d 1291, 1294

(D.C. Cir. 2004). Whether to treat the motion as conceded under Local Rule 7(b) is

highly discretionary, and our Circuit Court has noted that "[w]here the district court relies

on the absence ofa response as a basis for treating the motion as conceded, [the D.C.

Circuit will] honor its enforcement of the rule." Twelve John Does v. District of

Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997).

2 In order for this Court to hold defendants in contempt, plaintiffs must prove

through clear and convincing evidence that the defendants violated a clear and

unambiguous provision of the Court's January 28 and March 5 Orders. Armstrong v.

Executive Office ofthe President, 1 F.3d 1274, 1289 (D.C. Cir. 1993). The Supreme

Court has made clear that "civil contempt sanctions, or those penalties designed to

compel future compliance with a court order, are considered to be coercive and avoidable

through obedience, and thus may be imposed in an ordinary civil proceeding upon notice

and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt

is required." Int'/ Union v. Bagwell, 512 U.S. 821, 827 (1994).

Here, with respect to the East Coast defendants, Platinum defendants and

Crawford defendants, plaintiffs have presented this Court with convincing and

uncontested evidence that those defendants have violated a clear and unambiguous order

of this Court. Further, having been afforded notice and an opportunity to be heard on the

issue of contempt, defendants have received all procedural safeguards available. Their

failure to respond to plaintiffs filing, therefore, is treated by this Court as a concession

under Local Rule 7(a).

With respect to the Butch defendants, plaintiffs provide the affidavit of Maurice

Osbourne, who declares that he was hired by the Butch defendants on at least one

occasion and was paid below the minimum wage, $5 for roughly two hours of work.

However, contrary to plaintiffs' conclusion that there is "no evidentiary dispute" because

the Butch defendants "have not provided any evidence to demonstrate their compliance"

with the Court's Order, Pl.'s Reply at 5, the Butch defendants clearly challenge the

3 credibility of the evidence offered against them, arguing that Mr. Osbourne was never, in

fact, hired by the Butch defendants, Butch defendants Opp'n to PI. Mot. at 2. This Court,

therefore, finds that with respect to the Butch defendants, the plaintiffs have not yet met

their burden, and an evidentiary hearing will be scheduled to address unresolved issues

raised by this motion.

Accordingly, upon consideration of the plaintiffs' motions and the record herein, it

is hereby

ORDERED that plaintiffs' May 12,2010 Motion for Civil Contempt [#185] with

respect to the East Coast defendants, Platinum defendants and Butch defendants is

GRANTED in part and DENIED in part; and it is further

ORDERED that plaintiffs' June 14,2010 Motion for Civil Contempt [#189] with

respect to the Crawford defendants is GRANTED in part; and it is further

ORDERED the East Coast defendants, Platinum defendants and Crawford

defendants shall be held in contempt of this Court's clear and unambiguous order to pay

their employees the minimum wage required by the appropriate jurisdictions in which

they operate; and it is further

ORDERED that plaintiffs' motion with respect to the Butch defendants is

DENIED without prejudice.

4 FINALL Y, the Court reserves judgment and will schedule a hearing to address

what sanctions are appropriate with respect to the East Coast defendants, Platinum

defendants and Crawford defendants.

SO ORDERED.

United States District Judge