TAIKA BLAIER, Plaintiff, v. AMPS STAFFING, INC.; DARANA HYBRID, INC.; and DARRYL CUTTELL, Defendants CIVIL ACTION NO. 1:20-cv-02324-AT-RDC United States District Court, N.D. Georgia, Atlanta Division Filed June 10, 2022 Counsel Audrey K. Berland, Huff Powell & Bailey, LLC, Atlanta, GA, Cary Ichter, Ichter Davis, LLC, Atlanta, GA, for Plaintiff. Alan J. Statman, Pro Hac Vice, William Brokate Fecher, Pro Hac Vice, Statman, Harris & Eyrich, LLC, Cincinnati, OH, Mirza Khurram Baig, The Baig Firm, Norcross, GA, for Defendants. Cannon, Regina D., United States Magistrate Judge ORDER and NON-FINAL REPORT AND RECOMMENDATION *1 The following matters are presently before the Court: (i) Defendants' Motion for Reconsideration, (Doc. 143), seeking to set aside a portion of the undersigned's previous December 30, 2021 Sanctions Order, (Doc. 132); and (ii) Plaintiff's Motion for Contempt and Sanctions, (Doc. 147). For the reasons below, the Motion for Reconsideration is DENIED, and the Motion for Contempt and Sanctions is GRANTED IN PART with a RECOMMENDATION that contempt be DENIED. I. BACKGROUND This is an employment case with a lengthy procedural history. Relevant to the motions at hand, on November 16, 2021, the undersigned granted in part and denied in part Plaintiff's Motion to Compel and for Sanctions, (Doc. 82), which was filed on May 4, 2021. In that dispute, Plaintiff asserted that Defendants failed to comply with the Court's orders, continued to violate discovery rules, and delayed progress in this case. In opposition, Defendants argued that they had in fact responded to Plaintiff's discovery requests and that Plaintiff filed her motion the day they produced 22,000 pages of discovery (the “May 2021 production”) but she had not reviewed that discovery before filing her motion. The undersigned had previously ordered the parties to file discovery statements and an amended discovery plan to help determine whether Plaintiff provided a sufficient basis to compel discovery and impose sanctions. After considering the discovery dispute, the undersigned found that sanctions were appropriate under Federal Rules of Civil Procedure 26(g) and 37(a) because Defendants failed to provide timely discovery responses, and when they made required disclosures, they were either insufficient or unaccompanied by the written responses required under Rules 33 and 34. The undersigned further found that the cumulative effect of Defendants' other discovery violations—including late responses, nonresponses, and failure to engage in basic discovery practice—was to delay progress in this case significantly. The undersigned also found that, while sanctions were warranted, default judgment was not the appropriate sanction because the delays in litigation were partly due to Plaintiff's conduct. Accordingly, the undersigned limited sanctions to attorney's fees and costs incurred in preparing and briefing Plaintiff's motion to compel and ordered Plaintiff to submit a declaration detailing those fees and expenses. Plaintiff then filed a declaration seeking the following fees: (1) $11,021.76 related to preparing the motion to compel, (see Doc. 82); (2) $1,715.00 related to responding to Defendants' motion for extension of time to file a response brief to the motion to compel, (see Doc. 89); (3) $11,897.10 related to Plaintiff's reply brief on the motion to compel, (see Doc. 96); and (4) $20,099.90 related to the review of the May 2021 production, (see Doc. 92). (Doc. 121). Plaintiff argued that the Court should award the last of those fees because Defendants produced documents late, during a temporary stay of discovery, and in the middle of briefing on the motion to compel. *2 On December 30, 2021, the undersigned entered a Sanctions Order ordering Defendants to pay $40,018.76 to Plaintiff within 30 days (the “December 2021 Sanction Award”).[1] (Doc. 132). The undersigned found that the total amount sought by Plaintiff was accurate based on the provided billing entries and Plaintiff's counsel rates. Additionally, the undersigned found that the amount was reasonable and specifically found that fees should be awarded for the review of Defendants' May 2021 production because, if Defendants had produced that material during the original discovery period, much of Plaintiff's motion to compel would have been unnecessary. The undersigned further noted that the belated production required counsel to stop briefing the motion to compel, review some 22,000 documents, and assess whether the production would change arguments in the reply brief. The undersigned did not, however, award fees for the five hours spent responding to the motion for extension of time. Thus, the undersigned awarded: (1) $11,021.76 for the motion to compel; (2) $11,897.10 for the reply brief; and (3) $20,099.90 for document review. A. Motion for Reconsideration On February 2, 2022, Defendants moved for reconsideration of the Court's Sanctions Order, (Doc. 132), under Federal Rule of Civil Procedure 60(b)(6). (Doc. 143). In this still-pending motion, Defendants argue that the award of $20,099.90 of attorney fees in connection with the review of the May 2021 production is punitive rather than compensatory. Defendants concede the remaining amount of the December 2021 Sanction Award is appropriate. Plaintiff opposes the motion, arguing first that it is untimely under this Court's Local Rules and should be denied for that reason alone. (Doc. 144). Next, Plaintiff argues that Defendants fail to show extraordinary circumstances as required by Fed. R. Civ. P. 60(b)(6) or otherwise make any argument that meets the requirements for a motion for reconsideration under Local Rule 7.2(E). Finally, Plaintiff argues that the Court should award her additional attorney's fees and costs incurred responding to Defendants' motion because it is untimely and meritless. Defendants reply that their motion is not untimely because they filed it under Fed. R. Civ. P. 60(b)(6); therefore, it is not subject to the time constraints of Local Rule 7.2(E). (Doc. 145). Further, Defendants assert they did not act in bad faith in filing their motion and it is not frivolous, and thus, Plaintiff's request for fees and costs should be denied. B. Motion for Contempt and Sanctions After briefing was complete on Defendants' Motion for Reconsideration, Plaintiff moved the Court to hold Defendants in contempt for failing to comply with the Sanctions Order and to sanction them again for their continued misconduct. (Doc. 147). Plaintiff asserts that Defendants have not paid the December 2021 Sanction Award. Plaintiff argues that Defendants filed their motion for reconsideration after the time to pay the December 2021 Sanction Award had expired, in addition to filing it untimely under the Local Rules. Plaintiff asserts that Defendants: are a multi-million-dollar company and its owner; have the assets to pay the sanctions; and have not contended otherwise. Plaintiff requests the following additional sanctions: immediate payment of the December 2021 Sanction Award in full; a penalty for every day that the December 2021 Sanction Award has gone unpaid; a penalty for every day that Defendants defy the Sanctions Order; fees and costs incurred by Plaintiff having to file this motion and her reply; and a contempt fine to be paid into the Court's registry. Additionally, Plaintiff argues that the sanctions should account for Defendants' numerous instances of noncompliance with this Court's various orders regarding discovery. In response, Defendants argue that a writ of execution—not a motion for contempt—is the proper manner to enforce a money judgment and Plaintiff's motion should be denied on that basis alone. Defendants argue that contempt is not warranted because the December 2021 Sanction Award was due on the day they filed their motion for reconsideration, which they believe delayed their obligation to pay pending its resolution. Defendants concede that they have not yet paid the December 2021 Sanction Award. *3 In reply, Plaintiff argues that Defendants admit they deliberately violated the Sanctions Order and are therefore in contempt. Plaintiff argues that an order to pay sanctions is not a money judgment, and thus, a sanction is enforceable by the court's contempt power. The motions have been fully briefed and are ready for disposition. II. LEGAL STANDARD A. Motion for Reconsideration A decision to grant or deny a motion for reconsideration is within the court's discretion. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993). In this district, motions for reconsideration are “not to be filed as a matter of course” but only when “absolutely necessary.” LR 7.2(E), NDGa. These motions should not be used to raise legal arguments that could have been made earlier, and denial of a motion for reconsideration is “especially sound when the party has failed to articulate any reason for the failure to raise the issue at an earlier stage in the litigation.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th Cir. 2001) (quotation marks omitted). “A motion for reconsideration is not an opportunity for the moving party ... to instruct the court on how the court ‘could have done it better’ the first time.” Pres. Endangered Areas of Cobb's Hist., Inc. v. U.S. Army Corps of Eng'rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995), aff'd, 87 F.3d 1242 (11th Cir. 1996) (citation omitted). Reconsideration is only “absolutely necessary” when there is: (1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact. Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258–59 (N.D. Ga. 2003). B. Civil Contempt Civil contempt is a process used to compel compliance with a subpoena or court order. Gladden v. Procter & Gamble Distrib. LLC, No. 1:19-cv-2938-CAP-JSA, 2020 WL 10145958, at *4 (N.D. Ga. July 20, 2020); see also Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994) (“[C]ivil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience.”). Courts have found civil contempt to be an appropriate mechanism to enforce the payment of sanctions. See England v. Goodcents Holdings, Inc., No. 1:08-cv-1702-RWS, 2009 WL 2835201, at *2 (N.D. Ga. Aug. 31, 2009) (collecting cases and finding that civil contempt is an appropriate way to enforce a sanction for misconduct because a sanction for attorney's fees is not a money judgment); see also Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1221 (9th Cir. 2018) (affirming district court's contempt judgment entered when plaintiffs failed to pay defendants' costs associated with a deposition and motion for sanctions). “[C]ivil contempt occurs when a party disobeys a specific and definite court order by failing to take all reasonable steps within that party's power to comply with the order.” Gladden, 2020 WL 10145958, at *4. The decision to impose sanctions when civil contempt is shown is discretionary. Daker v. Ferrero, No. 1:03-cv-02481-RWS, 2006 WL 346440, at *12 (N.D. Ga. Feb. 13, 2006). A court will make a finding of civil contempt upon a showing of clear and convincing evidence. Georgia Power Co. v. N.L.R.B., 484 F.3d 1288, 1291 (11th Cir. 2007). “The clear and convincing evidence must establish that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order.” Id. The party moving for an order of contempt bears the burden of establishing by clear and convincing proof that an order was violated. PlayNation Play Sys., Inc. v. Velex Corp., 939 F.3d 1205, 1212 (11th Cir. 2019). *4 Once the moving party makes a prima facie showing, “the burden of production shifts to the alleged contemnor to show a present inability to comply that goes beyond a mere assertion of inability.” Id. (quotation marks omitted). The court's inquiry focuses on whether the contemnor complied with the order—not the contemnor's subjective beliefs or intent. Id. at 1212–13. The contemnor's substantial compliance may be excused if it was made as part of a good faith effort to comply with the order. Id. at 1213. A United States Magistrate Judge's power to exercise contempt authority over a civil case is limited to those instances where both parties consent to having the Magistrate Judge preside. Perez v. Guard Servs. Int., Inc., No. 1:16-MI-0036-CAP-JSA, 2016 WL 11584783, at *2 (N.D. Ga. Dec. 22, 2016) (citing 28 U.S.C. § 636(e)), report and recommendation adopted, Hugler v. Guard Servs. Int. Inc., 2017 WL 11048839 (N.D. Ga. Mar. 22, 2017). Here, the parties have not consented to have a Magistrate Judge preside over the case. (See Dkt.). As the Court has not received the consent of both parties, the undersigned's role is limited to certifying the facts underlying its belief that contempt is warranted and presenting that report and recommendation to the District Judge. See Perez, 2016 WL 11584783, at *2. The District Judge, in turn, “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.” 28 U.S.C. § 636(e)); see Perez, 2016 WL 11584783, at *2; Smith v. Pefanis, 652 F. Supp. 2d 1308, 1315 (N.D. Ga. 2009) (“Based on his review of this procedural and factual history, the Magistrate Judge concluded that Plaintiff sufficiently established a prima facie case.... Therefore, he recommends that the district court issue an order directing them to show cause as to why they should not be adjudged in contempt.”). III. DISCUSSION A. Motion for Reconsideration The first issue the undersigned must determine is whether Defendants' motion for reconsideration is untimely under the Local Rules. Defendants argue that their motion is filed under Rule 60(b) and, thus, not subject to the time constraints of Local Rule 7.2(E). The undersigned disagrees. Under Fed. R. Civ. P. 60(b), a court may relieve a party from a final judgment or order. The Eleventh Circuit has held that, “Rule 60(b) applies only to final judgments.” Mullins v. Nickel Plate Mining Co., 691 F.2d 971, 974 (11th Cir. 1982). “A final judgment generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Formby v. Farmers & Merchs. Bank, 904 F.2d 627, 630 (11th Cir. 1990) (quotation marks omitted). Rule 60(b) does not apply here because the Sanctions Order and judgment are not final judgments. The Sanctions Order and judgment did not end the litigation on the merits. See id.; see also Lyons v. O'Quinn, 746 F. App'x 898, 903 (11th Cir. 2018) (holding that an order to compel discovery and award attorney's fees was not a final judgment, and thus, Rule 60(b) did not apply); Cunningham v. Hamilton Cnty., Ohio, 527 U.S. 198, 205–09 (1999) (holding that the propriety of a sanctions award is intertwined with the merits and, thus, reviewable on appeal only after a final judgment on the merits). Accordingly, Defendants' motion for reconsideration cannot be brought under Rule 60(b)—the only legal theory they put forth in their motion. *5 Under the Local Rules, Defendants were required to file their motion for reconsideration within 28 days after the entry of the underlying order. See LR 7.2(E), NDGa. Defendants filed their motion on February 2, 2022—6 days past the 28-day deadline. This is not the only time Defendants have missed a deadline in these proceedings. (See Doc. 90) (noting Defendants' conduct of requesting extensions of time after the deadline has passed); (Docs. 130, 142, 161) (failing to comply with the Court's orders regarding ESI discovery); (Docs. 148–50) (failing to timely respond to Plaintiff's Motion for Contempt and Sanctions). Given the untimeliness of Defendants' motion and that reconsideration is an extreme remedy vested within this Court's discretion, the undersigned declines to reconsider the Sanctions Order. See Diamond Crystal Brands, Inc. v. Wallace, 563 F. Supp. 2d 1349, 1352 (N.D. Ga. 2008) (“Reconsideration is vested in the district court's sound discretion[.]”); United States for Use & Benefit of Tenn. Valley Auth. v. An Easement & Right-of-Way Over 8.56 Acres of Land, 324 F.R.D. 267, 275 (N.D. Ga. 2017) (“[R]econsideration of an order is an extraordinary remedy and is employed sparingly.” (quotation marks omitted)). Even if the undersigned were to consider the merits of Defendants' motion, their arguments relating to the proper amount of attorney's fees would have been more appropriately raised after Plaintiff filed her declaration on November 30, 2021, (Doc. 121), and before the undersigned entered the Sanctions Order on December 30, 2021, (Doc. 132). Defendants have not articulated any reason why they did not raise this argument during that 30-day period. See Sanderlin, 243 F.3d at 1292; see also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (“A motion for reconsideration cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.” (quotation marks omitted)). Instead, Defendants' motion appears to instruct the Court how it could have fashioned the Sanctions Order better the first time. See Pres. Endangered Areas of Cobb's Hist., Inc., 916 F. Supp. at 1560. For the reasons above, Defendants' Motion for Reconsideration, (Doc. 143), is DENIED. While the undersigned declines to reconsider the Sanctions Order, Defendant's present motion is not frivolous to the extent that Plaintiff should be awarded attorney's fees for preparing a response. Defendants are again ORDERED to pay $40,018.76 within seven (7) days of this Order. Defendants are forewarned that the undersigned will recommend they be held in contempt and ordered to pay December 2021 Sanction Award plus accrued interest from February 2, 2022, to the date of payment if they do not comply. B. Motion for Contempt and Sanctions Plaintiff argues that Defendants should be held in contempt for failing to pay the December 2021 Sanction Award. She also requests that the court further sanction Defendants due to numerous instances of misconduct. The undersigned disagrees with holding Defendants in contempt—for now—but agrees that Defendants' conduct is inappropriate and some sanction is warranted for their unjustified delay in paying the December 2021 Sanction Award. As a preliminary matter, a civil contempt motion is an appropriate method to enforce Defendants' failure to pay the December 2021 Sanction Award. See England, 2009 WL 2835201, at *2. In determining whether clear and convincing evidence supports holding Defendants in contempt, the undersigned first finds that Defendants have conceded that the Sanctions Order is valid and lawful as they contest only the amount they were ordered to pay. Second, the undersigned finds that Defendants were clearly and unambiguously ordered to pay the December 2021 Sanction Award within 30 days of the order, based in part on their concession that those sanctions were due on February 2, 2022—the same day they moved for reconsideration. Thus, the undersigned finds that Plaintiff has made a prima facie showing that the Sanctions Order was violated, and the burden shifts to Defendants to show a present inability to comply—which they failed to do. *6 Nothing in Defendants' brief indicates that they are unable to pay the December 2021 Sanction Award—despite Plaintiff asserting in her motion that they have the means to do so. See PlayNation Play Sys., Inc., 939 F.3d at 1212. Instead, Defendants concede that they have not paid any amount of the December 2021 Sanction Award and wrongly contend that the filing of the motion for reconsideration somehow absolved them from timely paying. While the court's inquiry in determining whether to hold a party in contempt focuses on whether the party objectively complied, even if the undersigned were to give Defendants' subjective beliefs the benefit of the doubt, they were misguided. Defendants assert that they filed their motion for reconsideration under Rule 60(b). Even if Defendants were correct in thinking that a Rule 60(b) motion was the proper method to request reconsideration of the Sanctions Order, they should have realized that a Rule 60(b) motion “does not affect the judgment's finality or suspend its operation.” See Fed. R. Civ. P. 60(c)(2). Defendants' filing of a motion under Rule 60 did not automatically stay the enforcement of the judgment. See Phuc Quang Le v. Humphrey, No. 1:10-CV-00408-WCO, 2011 WL 13214373, at *7 (N.D. Ga. Dec. 16, 2011). Instead, to obtain relief from the Sanctions Order, Defendants were required to move for a stay, which would only have been granted “[o]n appropriate terms for the opposing party's security.” See Fed. R. Civ. P. 62(b)(4). Accordingly, there is no support for Defendants' contention that their motion for reconsideration alone stayed their obligations to pay the December 2021 Sanction Award. Further, despite only contesting a portion of the sanctions, Defendants did not pay the uncontested amount to Plaintiff, which could have supported their assertion that they are proceeding in good faith. Based on the above, the undersigned believes the District Judge would be fully justified in holding Defendants in contempt for their failure to pay the December 2021 Sanction Award. However, this has been a contentious litigation, and the undersigned believes that the Court should use its discretion to deny the motion for contempt—at least at this point in the proceedings. See Daker, 2006 WL 346440, at *12. While Defendants' conduct has been more to blame for the combative nature of these proceedings, the undersigned has previously noted that Plaintiff's conduct has contributed. Moreover, the undersigned sanctioned Defendants on May 27, 2022 for their conduct surrounding ESI discovery, and the amount of sanctions in that matter is yet to be determined. Furthermore, the parties have scheduled a private mediation on July 7, 2022. The undersigned does not believe that holding Defendants in contempt at this time will aid in settlement efforts and trusts that the parties will negotiate earnestly and in good faith while keeping in mind the litigation costs already incurred, as well as the costs that will be incurred if the parties continue to litigate this case. Accordingly, the undersigned RECOMMENDS that the District Judge DENY IN PART Plaintiff's Motion for Contempt and Sanctions at this time, (Doc. 147), to the extent it requests Defendants be held in contempt and sanctioned or otherwise penalized for failing to timely pay the ordered sanctions. Next, the undersigned will address whether additional sanctions are warranted. As part of its powers to manage its docket, a court has the authority to impose reasonable and appropriate sanctions upon the lawyers and parties before it. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1545 (11th Cir. 1993). A court may appropriately sanction a party or attorney who “shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order.” Hutto v. Finney, 437 U.S. 678, 689 n.14 (1978). The imposition of sanctions in this instance serves “the dual purpose of vindicat[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponent's obstinacy.” Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (quotation marks omitted, alterations in original). *7 Here, Defendants concede that they have not paid the December 2021 Sanction Award. As already discussed, Defendants failed to support their assertion that they were not required to pay the December 2021 Sanction Award while their motion for reconsideration was pending, and the Federal Rules of Civil Procedure contradict that assertion. See Fed. R. Civ. P. 60(c)(2), 62(b)(4). The undersigned finds that Defendants' failure to pay the December 2021 Sanction Award shows bad faith because they have not even complied with the enforcement of the portion of the Sanctions Order that they concede is valid. See Hutto v. Finney, 437 U.S. at 689 n.14. Thus, the undersigned finds that the imposition of sanctions to compensate Plaintiff in part for Defendants' obstinacy is warranted. Accordingly, Plaintiff's Motion for Contempt and Sanctions, (Doc. 147), is GRANTED IN PART. The provided relief will be limited to attorney's fees and costs incurred in preparing and briefing Plaintiff's Motion for Contempt and Sanctions, (Doc. 147), and reply, (Doc. 152). Plaintiff is ORDERED to submit within fourteen (14) days a declaration detailing the fees and expenses she incurred from preparing the motions and reply. Finally, Defendants are forewarned that the undersigned will not entertain a motion for reconsideration on this Order or the Order entered on May 27, 2022, (Doc. 161). IV. CONCLUSION For the foregoing reasons, the undersigned— 1. DENIES Defendants' Motion for Reconsideration, (Doc. 143), and ORDERS payment of $40,018.76 to Plaintiff within seven (7) days. 2. GRANTS IN PART Plaintiff's Motion for Contempt and Sanctions, (Doc. 147), with a RECOMMENDATION that contempt be DENIED. Plaintiff is ORDERED to submit within fourteen (14) days a declaration detailing the fees and expenses she incurred from preparing the motion, (Doc. 147), and reply, (Doc. 152). IT IS SO ORDERED and RECOMMENDED on this 10th day of June 2022. Footnotes [1] The Clerk of Court entered judgment on January 3, 2022. (Doc. 133).