                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
_______________________________________
                                        )
                                        )
GUANTANAMERA CIGAR CO.,                )
      Plaintiff,                       )
                                       )
             v.                        )    Civil Action No. 08-721 (RCL)
                                       )
CORPORACION HABANOS, S.A.,             )
      Defendant.                       )
                                       )
_______________________________________)


                               MEMORANDUM AND ORDER

       On August 5, 2010, this Court ordered, inter alia, that plaintiff show cause within ten

days of the order “as to why it should not be held in civil contempt for violating the Court’s

order [71] Dec. 10, 2009.” (Order at 1, Aug. 5, 2010, ECF No. 136.) Plaintiff filed its response to

the Court’s order on August 16 (ECF No. 138), and defendant replied to plaintiff’s response on

September 2 (ECF No. 141).

       This show cause order stemmed from two pending motions: (1) Plaintiff’s Motion for

Enlargement of Time to Comply with the Court’s December 10, 2009 Order, or Aletrnatively

[sic] Relief from and Modification of the Order (Apr. 1, 2010, ECF No. 82), and (2) Defendant’s

Motion for Civil Contempt and for Sanctions (Apr. 9, 2010, ECF No. 107).

       Upon consideration of Defendant’s Motion for Civil Contempt and for Sanctions (ECF

No. 107), the opposition thereto (ECF No. 112), and the reply brief (Notice of Filing, ECF No.

121), the Court will grant the motion for the reasons stated below.

       Upon consideration of Plaintiff’s Motion for Enlargement of Time to Comply with the

Court’s December 10, 2009 Order, or Aletrnatively [sic] Relief from and Modification of the



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Order (ECF No. 82); the opposition thereto (ECF No. 107), and reply brief (ECF No. 112), the

Court will deny the motion for the reasons stated below.

       Based upon the representations in all of these motions, and both parties’ responses to the

Court’s show cause order, the Court will hold plaintiff in civil contempt and order plaintiff to

pay the remaining balance of the sanction forthwith. Furthermore, if plaintiff does not file proof

of compliance with this order in thirty days, the Court will dismiss this case and vacate its

previous summary judgment order (ECF No. 136).

       I.      BACKGROUND

       The Court set out the facts of this case in more detail in its August 5 order, so the Court

will repeat only the relevant facts here. On August 18, 2009, the Court granted defendant’s

Motion to Preclude, to Compel and for Sanctions (ECF No. 19), ordering plaintiff to pay

“defendant’s reasonable expenses for depositions of up to 15 of the listed witnesses, up to $500

per deposition,” and to “pay defendant’s reasonable attorney’s fees and costs for bringing this

motion.” (Order at 2–3, Aug. 18, 2009, ECF No. 49.) The Court later ordered that reasonable

attorney’s fees consisted of “$16,615.00 plus $439.79 in expenses,” thus totaling $17,054.79.

(Order at 1, Dec. 10, 2009, ECF No. 71.) The Court conditioned payment on approval by the

Office of Foreign Assets Control of the United States Department of Treasury (OFAC) and set

the deadline for payment at thirty days after the defendant filed notice of OFAC approval. (Id.)

Defendant filed notice of OFAC’s approval on March 1, 2010, giving the plaintiff until March

31, 2010, to tender payment. (Def.’s Notice at 1, Mar. 1, 2010, ECF No. 78.) In this notice,

defendant indicated that plaintiff was also responsible for payment of $1,000 for the costs

associated with two depositions. (Id. at 2.) In total, plaintiff was thus responsible for paying

$18,054.79 to defendant.



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       On March 31, defendant’s counsel received a personal check from plaintiff’s counsel in

the amount of $5,000. (Def.’s Mot. for Civil Contempt at 5, Apr. 9, 2010, ECF No. 107.) On

April 1, plaintiff filed a Motion for Enlargement of Time to Comply with the Court’s December

10, 2009 Order, or Aletrnatively [sic] Relief from and Modification of the Order. (Apr. 1, 2010,

ECF No. 82.) The motion proposed a payment plan consisting of four equal monthly payments

of $2,600 and a final payment of $2,654.79, which would pay off the remaining $13,054.79

balance. (Id. at 2.) On April 9, defendant filed a Motion for Civil Contempt and for Sanctions.

(Apr. 9, 2010, ECF No. 107.)

       Since this time, despite tailoring a custom payment plan, plaintiff has failed to make any

monthly payments. (Def.’s Reply Mem. Supp. Mot. Civil Contempt at 2.) In its Court-ordered

response, plaintiff now concedes its failure to make any payments and proposes a new payment

plan, which would consist of payments of “the remaining balance in 10 equal monthly

installments with the first one being September 1, 2010.” (Aug. 18, 2010, ECF No. 138.) In its

September 2 filing, defendant did not indicate whether plaintiff had paid the promised September

1 installment. (Def.’s Opp’n, Sept. 2, 2010, ECF No. 141.) In the absence of any filings

indicating that plaintiff has begun making payments, the Court must assume that plaintiff has not

yet made a payment. Furthermore, on October 18, counsel for defendant orally confirmed that

plaintiff has not made a payment since March.

       II.    LEGAL STANDARD

       “[C]ourts have the inherent power to enforce compliance with their lawful orders through

civil contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966); see also Broderick v.

Donaldson, 437 F.3d 1226, 1234 (D.C. Cir. 2006). This power is “essential to the enforcement of

the judgments [and] orders . . . of the courts,” Broderick, 437 F.3d at 1234 (citations omitted),



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and it includes enforcement of Court-imposed deadlines, In re Fannie Mae Sec. Litig., 552 F.3d

814, 823 (D.C. Cir. 2009).

        The sole purpose of civil contempt sanctions is to “coerce compliance or compensate a

complainant for losses sustained,” not to punish. Fannie Mae, 552 F.3d at 823. “Although one

may be held in civil contempt for refusing to comply with a court order, a sanction for one’s past

failure to comply with an order is criminal in nature.” Cobell v. Norton, 334 F.3d 1128, 1146–47

(D.C. Cir. 2003).

        To satisfy the requirements of contempt, the contemnor must have “violated an order that

is clear and unambiguous,” and the movant must prove the violation “by clear and convincing

evidence.” Broderick, 437 F.3d at 1234. “[C]ontempt may be inappropriate when a party in good

faith substantially complies with a court order.” Fannie Mae at 822.

        A court has the “inherent power to protect its integrity and prevent abuses of the judicial

process,” including “the use of dismissal or default judgment as a sanction for misconduct.”

Webb v. Dist. of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998) (citations omitted). There are

three justifications for this use of a dismissal:

        First the court may decide that the errant party’s behavior has severely hampered the
        other party’s ability to present his case—in other words, that the other party has been so
        prejudiced by the misconduct that it would be unfair to require him to proceed further in
        the case. Second, the court may take account of the prejudice caused to the judicial
        system when the party’s misconduct has put an intolerable burden on a district court by
        requiring the court to modify its own docket and operations in order to accommodate the
        delay. And finally, the court may consider the need to sanction conduct that is
        disrespectful to the court and to deter similar misconduct in the future.

Id. (citing Shea v. Donohoe Constr. Co., 795 F.2d 1071 (D.C. Cir. 1986)). A dismissal or default

judgment must be “a sanction of last resort, to be used only when less onerous methods . . . will

be ineffective or obviously futile.” Id. (citations omitted). Before dismissing a case, a court must

“fully consider[] whether harm caused by a party’s misconduct may be rectified by sanctions


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short of default” or dismissal. Id. at 972. The court must consider dismissal “under the

framework set out in Shea.” Id.

       III.    ANALYSIS

       The Court noted previously that “it is concerned that the plaintiff—the architect of the

payment plan—has not made one progress payment to date.” (Mem. Opp. at 11, Aug. 5, 2010,

ECF No. 137.) Plaintiff has done nothing to alleviate that concern. In its response to the Court’s

show cause order, plaintiff agrees that it has not made a single payment. (Pl.’s Resp. at 1.)

Because plaintiff fully agrees, defendant has proven the violation by clear and convincing

evidence. Furthermore, because it has not made a payment other than the $5,000 payment in

March, plaintiff has not “substantially” complied with the Court’s order.

       Plaintiff proposes a new schedule of payments, but the Court is not convinced that

plaintiff will comply with that schedule. First, plaintiff’s previous failure to pay in this case leads

the Court to believe that plaintiff will not pay in the future. Defendant has not alleged any change

of circumstances that would facilitate payment of the sanction in the future. Second, plaintiff is

not very reassuring when it anticipates the (albeit “highly unlikely”) possibility that the checks

that it provides to defendant may not clear. (Id. at 13.)

       Plaintiff’s primary concern is that it simply does not have the money to pay this sanction

in one payment. Although the Court sympathizes with this concern, plaintiff has had ample time

and opportunity to find the funds to pay this sanction. Plaintiff originally had warning of this

sanction in August 2009, and the Court confirmed the exact amount of the sanction in December

2009. This Court’s order was both clear and unambiguous. Plaintiff then moved for an extension

of time to repay the sanction at the beginning of April 2010, promising that the money would be

paid in full by August 31, 2010. Defendant failed to comply with this proposal. Thus, despite



                                                  5
plaintiff’s full knowledge for more than a year that this money was due, plaintiff still claims an

inability to find funds. The Court cannot wait any longer for plaintiff to find the funds, so

plaintiff must pay the remaining balance forthwith. The Court will hold plaintiff in civil

contempt of Court until it has paid the sanction in full.

       Furthermore, if plaintiff does not pay the remaining sanction in thirty days, the Court will

vacate its prior summary judgment order (ECF No. 136) and order the case dismissed. Applying

the framework set forth in Shea and Webb, the Court finds that dismissal will be proper under the

first and third justifications set forth in Webb. 146 F.3d at 971. First, plaintiff’s “behavior has

severely hampered [defendant’s] ability to present his case.” See id. It is unfair to defendant if

plaintiff selectively follows this Court’s orders. Plaintiff cannot enjoy the benefit of this Court’s

order granting summary judgment to plaintiff and denying summary judgment to defendant,

while also ignoring the detriment of this Court’s order granting sanctions to defendant. Second,

dismissal is necessary “to sanction conduct that is disrespectful to the court and to deter similar

misconduct in the future.” See id. Although dismissal is a sanction of last resort, it is proper here.

First, the Court imposed a sanction on plaintiff. Now, plaintiff is in civil contempt of Court, and

the Court has threatened plaintiff with dismissal. Hopefully, that civil contempt sanction and

threat of dismissal will enforce compliance. But if it does not, then it will be clear that less

onerous sanctions are futile and that plaintiff’s misconduct cannot be rectified by a sanction short

of dismissal. See id. at 972. Plaintiff’s failure to follow this Court’s order is disrespectful,

particularly in light of the fact that plaintiff knew about the sanction more than a year ago and

has had ample opportunity to pay it.

       IV.     CONCLUSION

       Accordingly, for the reasons stated above, it is hereby



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        ORDERED that Defendant’s Motion for Civil Contempt and for Sanctions is

GRANTED; and it is furthermore

        ORDERED that Plaintiff’s Motion for Enlargement of Time to Comply with the Court’s

December 10, 2009 Order, or Aletrnatively [sic] Relief from and Modification of the Order is

DENIED; and it is furthermore

        ORDERED that the Court holds plaintiff Guantanamera Cigar Co. in civil contempt of

Court; and it is furthermore

        ORDERED that plaintiff will remain in contempt of Court until the $18,054.79 sanction

is paid in full; and it is furthermore

        ORDERED that plaintiff pay the remaining $13,054.79 sanction forthwith; and it is

furthermore

        ORDERED that plaintiff must show proof of compliance with this order within thirty

days, proving that it has paid the remaining sanction in full. If plaintiff fails to file this proof of

compliance within thirty days, the Court will dismiss plaintiff’s case and vacate its previous

order granting summary judgment to plaintiff and denying summary judgment to defendant.

        SO ORDERED.

        Signed by Royce C. Lamberth, Chief Judge, on November 5, 2010.




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