United States District Court, W.D. Michigan, Southern Division
Robert Holmes Bell Judge.
PHILLIP J. GREEN United States Magistrate Judge.
matter is before the Court on plaintiff Stryker
Corporation's (“Stryker”) Petition for
Attorneys' Fees and Costs (ECF No. 177), filed pursuant
to the Court's order of civil contempt against defendants
William Prickett and Physician's Choice Medical Repair,
Inc. (“PCMR”) (ECF No. 172). Stryker seeks $32,
357.60 in fees and $3, 769.24 in costs associated with its
motion for contempt and the related third-party discovery.
(ECF No. 177, PageID.2380). Defendants have not responded to
before the Court is defendants' Statement Regarding
Costs. (ECF No. 180). The Court ordered defendants to provide
the actual costs incurred in generating revenue from certain
hospitals, which was obtained in violation of the preliminary
injunction, for the purpose of determining the amount of
profits to be disgorged. (ECF No. 172, PageID.1986).
Defendants claim $46, 205.12 in costs (ECF No. 180,
PageID.2437), and they assert that invoices reflecting a
total of $58, 193.76 in revenue should be exempt from
disgorgement, as they were “not wholly attributable to
the provision of Stryker-related services, repairs, or
parts.” (ECF No. 180-1, PageID.2439). Stryker objects
to the statement of costs, arguing that defendants failed to
independently verify the costs claimed, thus failing to meet
their burden of proof. (ECF No. 181, PageID.2441-42). Stryker
also objects to defendants' assertion that some of the
invoices should be exempt from disgorgement. (Id.,
considered Stryker's petition for fees and costs,
including its supporting materials, and in light of
defendants' failure to object, Stryker's petition
will be granted in full. For the reasons articulated herein,
Stryker's objections to defendants' statement of
costs will be sustained.
and Factual Background
17, 2016, Stryker filed a motion for contempt against
defendants William Prickett and PCMR. (ECF No. 107). Stryker
accused defendants of violating the Court's October 22,
2014, preliminary injunction (ECF No. 24), as well as the
Court's December 18, 2014, order compelling defendants to
produce certain discovery (ECF No. 40). (Pltfs' Br. at 1,
ECF No. 108, PageID.656). Specifically, Stryker complained
that defendant William Prickett violated the preliminary
injunction by continuing to service Stryker patient handling
equipment at Nash General Hospital, Wilson Medical Center,
and Atlantic Gastroenterology. (Id., PageID.659-60;
see Invoices at ECF No. 108-5, 108-6, and 108-7,
respectively). Defendants opposed the motion. (See
ECF No. 144).
undersigned judicial officer conducted a lengthy hearing on
July 11, 2016. (Minutes, ECF No. 148). On July 22, 2016, the
undersigned entered a Report and Recommendation
(“R&R”) certifying facts in favor of civil
contempt, and recommending that the Honorable Robert Holmes
Bell adjudge defendants to be in civil contempt. (ECF No.
152). The undersigned also recommended that Judge Bell
consider imposing certain enumerated sanctions.
August 18, 2016, Judge Bell conducted a hearing on
Stryker's motion for contempt. (Minutes, ECF No. 171).
During this hearing, defendants confirmed that they had no
objection to the R&R or to the sanctions recommended
therein. (See Aug. 19, 2016, Order, ECF No. 172,
PageID.1985). After reviewing the R&R de novo,
as required by 28 U.S.C. § 636, Judge Bell adopted it as
the findings and conclusions of the Court. (Id.,
Bell ordered, among other things, that Stryker file a
petition “for reasonable costs, including
attorneys' fees, associated with the motion for contempt
(ECF No. 107) and the third-party discovery, including Rule
30(b)(6) depositions, relating to the invoices obtained from
Nash General Hospital, Wilson Medical Center, and Atlantic
Gastroenterology.” (ECF No. 172, PageID.1987). Judge
Bell advised defendants that failure to file a timely
response will result in a waiver of the issues raised in the
petition. (Id.). Defendants have filed no response.
Bell also ordered, as a sanction, that defendants disgorge
profits they obtained from the three hospitals in question
(ECF No. 172, PageID.1986), which are reflected in invoices
contained in Exhibits E, F, and G to Stryker's contempt
motion (ECF No. 108-5, 108-6, and 108-7, respectively). The
profits are to be determined by subtracting defendants'
“actual costs, ” as proven by defendants, from
the amounts billed in the invoices. (See id.).
Stryker's Petition for Attorneys' Fees and
the Federal Rules of Civil Procedure, the Court has
discretion to impose a number of sanctions for violations of
its discovery orders. See Fed. R. Civ. P.
37(b)(2)(A). Among those sanctions are “treating as
contempt of court the failure to obey any [such]
order.” Fed.R.Civ.P. 37(b)(2)(A)(vii). In addition,
“the court must order the disobedient party . . . to
pay the reasonable expenses, including attorney's fees,
caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(b)(2)(C). A finding of civil
contempt for violating the Court's preliminary injunction
provides an independent basis for awarding fees and costs
resulting from the violation. See ...