Curtis Blackwell, II v. Lou Anna Simon

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 8, 2021
• Docket: 20-2172
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0573n.06

Nos. 20-2171/2172

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CURTIS E. BLACKWELL, II, ) ) FILED Plaintiff, Dec 08, 2021 ) DEBORAH S. HUNT, Clerk ANDREW A. PATERSON, JR.; THOMAS R. ) ) WARNICKE, ) Interested Parties-Appellants ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN LOU ANNA K. SIMON, in her individual capacity ) as president of Michigan State University, et al., ) Defendants-Appellees. ) )

Before: DONALD, THAPAR, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. After attorneys Andrew Paterson and Thomas Warnicke

repeatedly engaged in litigation misconduct, the district court ordered them to pay over $50,000

in attorneys’ fees. Paterson and Warnicke missed the payment deadline—twice—so the court went

a step further and held the duo in civil contempt. They appeal the contempt order on the ground

that they could not afford to pay the fee sanction. For the reasons that follow, we AFFIRM.

I.

Paterson and Warnicke used to represent Simon Blackwell in his lawsuit against several

Michigan State University officials (MSU). But after the duo repeatedly abused the judicial

process, the district court removed Paterson and Warnicke as counsel, and the magistrate judge

ordered them to pay MSU for the costs and fees it incurred because of the wrongdoing: $52,010, Nos. 20-2171/2172, Blackwell v. Simon

due within 30 days. See 28 U.S.C. § 1927; Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct.

1178, 1186 (2017).

Paterson and Warnicke appealed to the district court, but the deadline came and went while

the appeal was pending. In fact, just after 8:30 p.m. on the evening of the due date, Paterson

emailed MSU’s attorney, stating that he and Warnicke did not have the financial resources to pay

but wanted to discuss an installment plan. MSU declined the (almost literally) “11th hour request”

and moved to hold Paterson and Warnicke in civil contempt.

In their responses to the contempt motion, Paterson and Warnicke told the district court for

the first time that they could not afford to pay the fee awards. But their assertions were

unsupported by any evidence. Warnicke simply stated that he was “unable to pay” the award “or

even a significant portion thereof.” He didn’t attach any corroborating documents but offered to

“provide financial information” under seal if the court so wished. Paterson likewise baldly asserted

that he did “not have the financial resources to pay,” but he at least promised to submit an affidavit

attesting to that fact “within 24 hours.” And Paterson indeed filed an affidavit—six sentences with

no supporting evidence—48 hours later.

In a single order, the district court denied Paterson and Warnicke’s appeal from the

magistrate’s sanctions order, denied MSU’s motion for contempt, and extended the payment

deadline by two weeks. On the due date, Warnicke filed a motion for relief from the sanctions

award, again claiming an inability to pay; he again provided no support—not a bank statement, a

balance sheet, or even an affidavit. With another due date in the rearview mirror and no payment

in hand, MSU renewed its motion to hold Paterson and Warnicke in contempt. The attorneys

responded with more of the same: unsupported assertions of inability to pay and offers to enter

-2- Nos. 20-2171/2172, Blackwell v. Simon

into an installment plan. Paterson proclaimed that his bank records “will” show his inability to

pay, but he didn’t actually offer those records.

The district court granted the contempt motion. As for Paterson and Warnicke’s purported

inability to pay, the court noted that their “general[]” assertions of financial status did not

“remotely satisf[y]” their burden of proof. Although Paterson and Warnicke remained jointly and

severally liable for the award, the court accepted MSU’s recommendation to order Warnicke to

pay $7,500 per month until the full $52,010 is paid, with a $100 per diem fine if he misses a

payment. Warnicke could, the court noted, “take appropriate steps against Paterson” as necessary.

Paterson and Warnicke appealed.1

II.

We review a district court’s decision to hold a person in contempt for abuse of discretion.

Elec. Workers Pension Tr. Fund of Loc. Union #58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373,

378 (6th Cir. 2003). We will reverse only if the district court “relied upon clearly erroneous

findings of fact, improperly applied the governing law, or used an erroneous legal standard.”

Gascho v. Glob. Fitness Holdings, LLC, 875 F.3d 795, 800 (6th Cir. 2017) (quoting Gary’s Elec.,

340 F.3d at 378).

The party seeking civil contempt must show by clear and convincing evidence that the

contemnor knowingly violated a “definite and specific” court order. Id. at 800. Although that

burden is heavy, once satisfied the “onus shifts to the opposing party to demonstrate that it was

unable to comply with the court’s order.” Id.; accord United States v. Rylander, 460 U.S. 752,

1 Although there is no final judgment below, the district court’s order holding non-parties Paterson and Warnicke in contempt secures our jurisdiction under 28 U.S.C. § 1291. United States v. Johnson, 736 F.2d 358, 359 & n.1 (6th Cir. 1984); see also U.S. Cath. Conf. v. Abortion Rts. Mobilization, Inc., 487 U.S 72, 76 (1988). -3- Nos. 20-2171/2172, Blackwell v. Simon

757 (1983). To establish that defense, the alleged contemnor must establish three

elements: (1) inability to comply; (2) that the inability was not self-induced; and (3) that the

contemnor took all reasonable steps to comply. Gascho, 875 F.3d at 802. Each element must be

proven “categorically and in detail.” Gary’s Elec., 340 F.3d at 379 (quoting Rolex Watch U.S.A.,

Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir. 1996)). Unsupported, conclusory assertions will not

suffice. See Rylander, 460 U.S. at 757–58; Gary’s Elec., 340 F.3d at 383.

The district court did not abuse its discretion in holding Paterson and Warnicke in

contempt. No one disputes that the duo violated a “definite and specific” court order by failing to

pay the fee award by the deadline. And we agree with the district court that Paterson and Warnicke

did not “remotely satisf[y]” their burden to show inability to pay. At no point did either attorney

provide any actual evidence of his financial status, let alone “categorically and in detail.” Gary’s

Elec., 340 F.3d at 379. Their perfunctory proclamations of inability certainly don’t meet that

burden. See id. at 383 & n.14; Rylander, 460 U.S. at 757–58.

Paterson and Warnicke argue that they offered to provide more evidence that would have

substantiated their claims. That is true, but it does not matter. A party moving for summary

judgment can’t simply assert that there are no genuine issues of material fact, then fault the district

court for denying summary judgment because the movant “could have” provided evidence if the

court had just asked. Fed. R. Civ. P. 56(c). That’s not how burdens work. Paterson and Warnicke

had to “com[e] forward with evidence.” Gary’s Elec., 340 F.3d at 379.2

2 Because Paterson and Warnicke failed to demonstrate their inability to pay, we need not wade into the circuit split over whether such a defense is available at all in proceedings to enforce an order awarding fees under 28 U.S.C. § 1927. Compare Shales v. Gen. Chauffers Loc. Union No. 330, 557 F.3d 746, 749 (7th Cir. 2009), and Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1206 (10th Cir. 2008), with Haynes v. City & County of San Francisco, 688 F.3d 984, 987 (9th Cir. 2012), and Oliveri v. Thompson, 803 F.2d 1265, 1281 (2d Cir. 1986). Nor do we need to decide -4- Nos. 20-2171/2172, Blackwell v. Simon

***

Paterson and Warnicke utterly failed to prove their inability to pay. We AFFIRM.

whether Paterson and Warnicke forfeited the defense by failing to raise it when the award amount was being set. -5-