Case 1:16-cv-24275-FAM Document 287 Entered on FLSD Docket 07/16/2020 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 16-24275-CV-MORENO/LOUIS
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`Petitioner,
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`INVERSIONES Y PROCESADORA
`TROPICAL INPROTSA, S.A.,
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`vs.
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`DEL MONTE INTERNATIONAL GMBH,
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`Respondent.
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`_______________________________/
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`REPORT AND RECOMMENDATION
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`THIS CAUSE came before the Court upon Respondent’s Renewed Motion for Judgment
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`of Contempt (ECF No. 229). These matters are fully briefed and were referred to the undersigned
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`United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate Judge
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`Rules of the Local Rules of the Southern District of Florida, by the Honorable Federico A. Moreno,
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`United States District Judge (ECF No. 232). An evidentiary hearing was conducted before the
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`undersigned beginning on June 2, 2020 and continuing on June 30, 2020. Having carefully
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`considered the motions, the record as a whole, and being otherwise fully advised in the premises,
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`the undersigned issues the following recommendations.
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`I.
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`BACKGROUND
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`The facts of these proceedings span the course of four years and are otherwise known to
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`the parties. As relevant here, Inversiones Y Procesadora Tropical Inprotsa, S.A. (“Inprotsa”) is a
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`commercial pineapple grower in Costa Rica. Del Monte International GMBH (“Del Monte”) is an
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`international pineapple seller. The parties had a dispute regarding certain pineapple seeds that,
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`pursuant to their agreement, they submitted to arbitration in Miami, Florida. The Arbitral Panel
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`found in favor of Del Monte and issued an Arbitral Award (“Award”). In addition to a monetary
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`award, the arbitration Award included two injunctions: the first was to immediately destroy and or
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`return all MD-2 seeds in excess of 7% of its vegetative material (“Destruction Injunction”), the
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`second required Inprotsa, if it elected not to return or destroy the seeds, to only sell those
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`pineapples derived from those seeds to Del Monte (“Sales Injunction”).
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`Del Monte moved to confirm the award in Costa Rica; Inprotsa moved to vacate the award
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`in state court in Miami-Dade Florida, the seat of the arbitration. Del Monte removed the action to
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`this Court and cross moved to confirm the petition. The Honorable Federico A. Moreno confirmed
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`the award and entered judgment on May 17, 2017.
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`Inprotsa did not immediately destroy or return the seeds and continued cultivating and
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`harvesting pineapples as enjoined. Once the pineapples were grown, it elected to sell them to a
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`third party until at least April of 2018. Del Monte discovered the sales and moved for an Order to
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`Show Cause why Inprotsa should not be held in contempt for violating the Court’s Final Judgment
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`which subsumed the Arbitral Award.
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`i.
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`Procedural History
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`Del Monte first moved for Entry of an Order to Show Cause Why Inprotsa Should Not Be
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`In Contempt in March 2018. Del Monte contended that Inprotsa violated this Court’s order by
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`continuing to sell MD-2 pineapples against the injunction contained in the Award that this Court
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`had confirmed under the New York Convention (ECF No. 123). Inprotsa responded in opposition
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`and Del Monte replied (ECF Nos. 129, 130). Judge Moreno referred the Motion to the undersigned
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`(ECF No. 131). The undersigned then held an evidentiary hearing on the Motion for Contempt
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`(ECF No. 181). After that hearing, the undersigned issued a Report and Recommendation to Judge
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`Moreno (ECF No. 191). As it pertains to contempt, the Report and Recommendation memorialized
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`twelve paragraphs of certified facts. The Report recounted that the arbitration panel ordered
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`Inprotsa to return or destroy 93% of the MD-2 vegetative materials; that Inprotsa was permanently
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`enjoined from selling MD-2 pineapples, with the exception of sales in amounts not exceeding 7%
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`of each MD-2 harvest, unless those sales were to Del Monte; and that Inprotsa was ordered pay
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`Del Monte damages in the amount of $26,133,000.00, arbitral costs of $650,000.00, and legal
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`representation costs and fees of $2,507,440.54, for a total amount of $29,290,440.54, plus pre-
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`award and post-award interest. The award gave Inprotsa the option to sell to Del Monte all
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`pineapples harvested from Del Monte Plant Stock on Inprotsa’s plantation in lieu of immediate
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`destruction of the MD-2 vegetation material.
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`The undersigned found that the award applied to 1,150 hectares of Inprotsa’s farmland in
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`Costa Rica. The undersigned further found that Inprotsa did not elect to sell the MD-2 vegetative
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`materials to Del Monte, nor did it destroy the MD-2 vegetative material immediately, but rather at
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`the same pace that occurs at the pineapple’s normal growth and harvesting cycle. I further found
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`that Inprotsa continued to make sales of pineapples to someone other than Del Monte. Specifically,
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`I found that Inprotsa executed contracts with third-party Fruver, which is owned by a close family
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`friend of Inprotsa’s officers. Finally, I found that according to Inprotsa’s sales figures, between
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`May 2, 2017 and September 30, 2018, Inprotsa’s sales revenue was $16,373,684, which exceeded
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`the 7% cap in violation of the injunction against sales.
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`The Report recommended that Judge Moreno grant Del Monte’s Motion for an Order To
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`Show Cause, in part (ECF No. 191 at 26). Specifically, I recommended that Judge Moreno order
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`Inprotsa, and its officers, Jorge Luis Gurria Hernandez and Manuel Gurria Ordonez, to show cause
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`why the Court should not hold them in contempt for failing to comply with the Court’s Final
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`Judgment by making sales of MD-2 pineapples in violation of the permanent injunction of the
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`Award as subsumed by this Court’s Final Judgment, and that Judge Moreno should order
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`sanctions, including monies Inprotsa improperly received as a result of its sales made after entry
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`of this Court’s Final Judgment (id.). Judge Moreno adopted the Report and Recommendations
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`(ECF No. 200). However, before the Order to Show Cause was issued on the issue of contempt,
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`Del Monte moved for Entry of Final Judgment of Contempt and Ordering Assignment of Contract
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`Rights (ECF No. 201). Judge Moreno denied that Motion as premature (ECF No. 207).
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`Del Monte filed the present Renewed Motion for Entry of Final Judgment of Contempt ,
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`seeking entry of judgment in excess of $16,000,000.00 plus attorney’s fees (ECF No. 229). Judge
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`Moreno referred that Motion to the undersigned for a report and recommendation (ECF No. 232).
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`At a hearing on another motion in this case on March 12, 2020 (ECF No. 246), a status
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`conference was conducted on Judge Moreno’s referral of Del Monte’s Renewed Motion for Entry
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`of Final Judgment of Contempt. The undersigned asked Inprotsa what steps it viewed as necessary
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`in order to afford it due process as it related to the issue of contempt. See Transcript, March 12,
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`2020 hearing (ECF No. 249 at 65-67). Inprotsa requested an opportunity for a hearing and an
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`additional memorandum. The Court granted both requests. That briefing was filed on April 24,
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`2020 (ECF No. 261) and the hearing was conducted over two days on June 2, 2020 and June 30,
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`2020 (ECF Nos. 270, 280).
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`II.
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`INPROTSA’S SUPPLEMENTAL MEMORANDUM
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`Inprotsa’s supplemental memorandum raises three main defenses to an issuance of final
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`judgment of contempt: one procedural defense, a legal defense, and a factual defense. The
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`undersigned addresses each in turn below.
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`a. Procedural Defense
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`Inprotsa avers that the undersigned lacks the authority to conduct any further proceedings
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`on the issue of contempt because I have already certified facts to the district court judge, and thus,
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`the only remaining procedural hurdle is for the district court judge to issue a show cause order and
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`hold an evidentiary hearing. Inprotsa avers that the ongoing proceedings exceed the magistrate
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`judge’s limited contempt powers pursuant to 28 U.S.C. § 636(e). Inprotsa also argues that in light
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`of the complex, intersecting issues, I should not recommend that Inprotsa make any further
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`appearance before Judge Moreno on the issue of contempt because the issues are complicated and
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`nuanced.
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`While it is true that only a district judge is authorized to adjudicate contempt, the motion
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`at issue is a Renewed Motion for Judgment of Contempt and has been referred to the undersigned
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`pursuant to 28 U.S.C. § 636(b)(3), also known as the “additional duties” provision of 28 U.S.C. §
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`636(b)(3). This provision authorizes a district court to refer to a magistrate judge “such additional
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`duties as are not inconsistent with the Constitution and laws of the United States.” Id. Other courts
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`have held that post judgment motions may be referred to a magistrate judge through this provision,
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`so long as the district judge retains the ultimate responsibility for decision making. See Arrowood
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`Indem. Co. v. Trustmark Ins. Co., 3:03CV1000 JBA TPS, 2012 WL 1596980, at *3 (D. Conn. May
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`7, 2012) (citing Colo. Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809,
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`811 (10th Cir.1989)).
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`The motion referred to the undersigned is Del Monte’s renewed motion for entry of
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`judgment in its favor. If Judge Moreno determines, on the facts certified, to hold Inprotsa in
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`contempt and order sanctions paid
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`to Del Monte,
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`the previously
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`issued Report and
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`Recommendation makes no finding or recommendation as to the amount that may be awarded.
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`Inprotsa’s argument that Del Monte has brought the Motion prematurely, before an order to show
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`cause has yet issued, is well placed; notwithstanding, these evidentiary proceedings attendant to
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`determining the amount of sanctions, if any, are not beyond the undersigned’s authority and within
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`the scope of referral by Judge Moreno, who will ultimately determine whether Inprotsa should be
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`found in contempt of court.
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`b. Legal Defense
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`Inprotsa also avers in its Memorandum that the undersigned should not recommend Judge
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`Moreno find it in contempt because the Final Judgment of this Court has not been shown by clear
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`and convincing evidence to be valid and lawful, or clear and unambiguous.
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`Every civil contempt proceeding is brought to enforce a court order that requires the
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`defendant to act or refrain from acting in some defined manner. Mercer v. Mitchell, 908 F.2d 763,
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`768 (11th Cir. 1990). A party petitioning for a civil contempt finding must prove by clear and
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`convincing evidence that the respondent violated a court order. United States v. Hayes, 722 F.2d
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`723, 725 (11th Cir. 2019). Once a prima facie showing of violation has been made, the respondent
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`can defend its failure on the grounds that it was unable to comply. Id.
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`An inability to comply can be shown through one of three ways: 1) the allegedly violated
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`order was invalid or unlawful; 2) the order was unclear or ambiguous; and 3) the alleged violator
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`did not have the ability to comply with the order. Georgia Power Co. v. N.L.R.B., 484 F.3d 1288,
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`1291 (11th Cir. 2007). The prior Report and Recommendation (ECF No. 191) only found that
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`Inprotsa had willfully violated the Injunctions as required by this Court’s Judgment. It did not,
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`however find that the order was valid and lawful, the order was clear and unambiguous, or that the
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`alleged violator had the ability to comply with the order. The first two of those challenges are legal
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`defenses. However, at this posture, such arguments are unavailing.
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`Inprotsa avers that the order was not clear and unambiguous because there was legal
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`ambiguity as to whether the injunction was enforceable. In support of this proposition it cites to
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`Harrison Baking Co. v. Bakery and Confectionary Workers, Local No. 3, AFL-CIO, 777 F. Supp.
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`306, 307 (S.D. N.Y. 1991).1 There, a court ordered an employer to reinstate an employee through
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`a mandatory injunction. An appeal arose, and the parties disputed whether the appeal stayed the
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`mandatory injunction. The employer moved pursuant to Rule 62 for a stay of the order pending
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`appeal and the defendant moved simultaneously for contempt. The court agreed that the impact of
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`the order was not clear and unambiguous and accordingly declined to hold the plaintiff in contempt
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`for the 10 days it did not follow the order because, once the plaintiff was faced with the Order to
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`Show Cause, plaintiff told defendant that it would pay under a proposal raised by defendant. The
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`court ultimately concluded that while it was not full compliance, it was not “clear and convincing
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`evidence of noncompliance.” Id. at 311. Notably, while it did not hold plaintiff in contempt, it
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`awarded attorney’s fees incurred in efforts to secure plaintiff’s compliance with the order. Id.
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`Inprotsa’s noncompliance here was neither brief nor attributable to an ambiguity in the
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`effect of a stay. Nor can the undersigned agree that the Award and ensuing injunction was not
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`clear. The Judgment and its accompanying injunctions have been affirmed by the Court of Appeals
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`for the Eleventh Circuit. See Inversiones y Procesadora Tropical INPROTSA, S.A. v. Del Mo nte
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`Int’l, GMBH, 921 F.3d 1291 (11th Cir. 2019). The Court notes that Inprotsa never raised the issue
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`of the injunction being unclear or ambiguous to the court of appeals, despite the fact that it raised
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`another public policy defense relating to fraud, rather it first raised this defense after the Motion
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`for Contempt was filed and after it had ceased farming of the pineapple seeds at issue. Therefore,
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`1 Inprotsa also cites to a hearing transcript from a District of Connecticut hearing transcript where a magistrate judge
`orally denied considering a finding of contempt. However, it cites to no report and recommendation or other order
`from that case to support its proposition.
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`the Judgment was valid and lawful as well as clear and unambiguous. As such, the undersigned
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`does not recommend that Inprotsa prevail on this defense to contempt.
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`c. Factual Defense
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`Inprotsa also avers that it lacked the ability to comply with the destruction injunction
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`because such large destruction of agriculture would be against Costa Rican law. Inprotsa had
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`advanced this factual defense previously on the same and similar evidence in response to Del
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`Monte’s motion for an order to show cause and my recommendation is unchanged.
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`Recall that the Award required Inprotsa to cease sales of pineapples derived from the
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`contested seeds by destroying the plants immediately or selling to Del Monte that which it did not
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`immediately destroy. Based on the evidence presented, it was not contested that Inprotsa did not
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`comply by destroying the vegetation. “Inprotsa did not destroy the MD-2 vegetative material
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`immediately, but rather at the same pace that occurs at the pineapple’s normal growth and
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`harvesting cycle.” (ECF No. 191 at 24 ¶ 7) (internal alterations omitted). Inprotsa advanced Costa
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`Rican law as a defense to its immediate destruction; notwithstanding, I was persuaded by the
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`testimony of Inprotsa’s president, Jorge Luis Gurría Hernández, who explained that Inprotsa
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`needed to make the sales notwithstanding the injunction and justified doing so because the
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`confirmation proceedings were then stayed in courts in Costa Rica and pending on appeal here.
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`Moreover, inability to destroy the plants is not a defense to Inprotsa’s failure to abide by
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`the related sales injunction—that it sell the resulting pineapples to no one other than Del Monte. It
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`is uncontested that Inprotsa did not sell the pineapples to Del Monte.
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`While Inprotsa introduced seventeen new exhibits into evidence during the hearings held
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`on June 2 and 30, 2020, nothing it advanced demonstrated anything that was not already elsewhere
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`in the record. For instance, Inprotsa advanced the Declaration of Jorge Luis Gurria Hernández,
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`which was already relied on by the undersigned in the previous Report and Recommendation.
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`Inprotsa also advances a report of an environmental engineer certifying that the necessary
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`destruction had occurred by April of 2018, however this has already been established.
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`Simply because there was a pending appeal to the Eleventh Circuit and a stay in Costa Rica
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`is unavailing. The focus in a civil contempt proceeding is not the “subjective beliefs or intent of
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`the alleged contemnors in complying with the order, but whether in fact their conduct complied
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`with the order at issue.” Georgia Power, 484 F.3d at 1291 (citing Howard Johnson Co., Inc., v.
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`Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990). Thus, to succeed on the defense, the respondent
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`must go beyond a mere assertion of inability and satisfy its burden of production on the point by
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`introducing evidence in support of its claim. Hayes, 722 F.2d at 725. The contemnor must establish
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`that he has made “in good faith all reasonable efforts” to meet the terms of the court order he is
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`seeking to avoid. United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988). In this Circuit, that
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`requirement is construed strictly. Even if the efforts made were substantial, diligent, or in good
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`faith, that fact that the contemnor did not make all reasonable efforts establishes that the alleged
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`contemnor did not sufficiently rebut the prima facie showing of contempt. Combs v. Ryan’s Coal
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`Co., Inc., 785 F.2d 970, 984 (11th Cir. 1986). Inprotsa has advanced no evidence that it acted
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`diligently in attempting to destroy the pineapples or sell them to Del Monte, in fact the opposite
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`has been shown: Inprotsa knew of the injunctions, knew that it had been ordered to destroy the
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`pineapples or sell them only to Del Monte, and chose instead to farm them as it normally would
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`and sell them to third-party Fruver in hopes that it would win at the appellate level.
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`In these hearings, Inprotsa has advanced or adduced no new evidence which would
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`demonstrate that it could not comply with this Court’s Final Judgment. Instead, the previously
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`certified facts showed that Inprotsa had the ability and means to comply with the Final Judgment
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`but rather elected not to comply for reasons advanced by the President of the Company. Nothing
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`which has been presented compels a finding or recommendation that Inprotsa should not be
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`ordered to show cause for violating the Court’s Final Judgment; for the same reasons, for purposes
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`of the present Motion, the evidence of Inprotsa’s defenses to compliance do not warrant a
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`recommendation that if found in contempt, an award should not be entered against Inprotsa for its
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`inability to comply.
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`III. DEL MONTE’S REQUEST FOR DISGORGEMENT REMEDY
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` Del Monte avers that an award of disgorgement of Inprotsa’s profits would be a proper
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`remedy in these contempt proceedings.2 The civil contempt power may be used for one of two
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`reasons: “to coerce the defendant into compliance with the court’s order, and to compensate the
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`complainant for losses suffered.” United States v. United Mine Workers, 330 U.S. 258, 303-04
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`(1947). There is no argument here that the Petitioner needs to be coerced into complying with the
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`Court’s Judgment at this posture as both parties admit that the vegetative material has since been
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`destroyed. However, if the Court determines a compensatory fine is necessary, it is payable to the
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`complainant and must be based on proof of the complainant’s actual loss. In re Chase & Sanborn,
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`872 F.2d 397, 401 (11th Cir. 1989).
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`Since these proceedings are tied to past conduct, they cannot be coercive. Gregory v. Depte,
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`896 F.2d 31, 34 (3d Cir. 1990). Therefore, any remedy this Court fashions may not exceed the
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`actual damages caused to Del Monte. Id. Although contempt is an equitable remedy, “there can be
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`no equity in a compensatory award except as it provides a fair equivalent for some loss.” Id. (citing
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`National Drying Machinery Co. v. Ackoff, 245 F.2d 192, 195 (3rd Cir.), cert. denied, 355 U.S. 832
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`2 The Motion remains premature in that it seeks entry of judgment before the Court has ordered Inprotsa to show cause
`or otherwise has held it in contempt; nonetheless, the undersigned has considered the evidence and arguments
`advanced in support of what sanctions the Court may award if a finding of contempt is made by Judge Moreno.
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`(1957). The complainant bears the burden of producing evidence sufficient to show his damages
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`based on the contempt. See United Mine Workers, 330 U.S. at 304; see also In re Chase &
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`Sandborn Corp., 872 F.2d at 401.
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`Del Monte avers that the correct remedy should be disgorgement of Inprotsa’s gross
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`revenues obtained from the sale of the contested pineapples. Del Monte rejects any argument that
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`Inprotsa should be disgorged of its profits, not gross revenue; Del Monte contends that allowing a
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`setoff for Inprotsa’s costs of production (or any other costs) is tantamount to allowing Inprotsa to
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`violate the Court’s Judgment so long as Inprotsa does not generate a profit from its contemptuous
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`conduct.3
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`Inprotsa disputes the measure of damages tied to disgorgement and advances case law
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`standing for the proposition
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`that under analogous circumstances, the party injured by
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`contemptuous conduct bears the burden of showing its damages and because Del Monte has
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`advanced no evidence to show what damages it suffered, Inprotsa cannot be fined for any
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`violations of the Court’s Final Judgment. Inprotsa also avers that if the Court does find that
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`disgorgement is a proper remedy, the Court should only award disgorgement of its gross profits,
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`not its gross revenues.
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`The purpose of a civil fine is not to punish the wrong-doer, it is to compensate the injured.
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`F. T. C. v. Leshin, 618 F.3d 1221, 1239 (11th Cir. 2010). Del Monte’s own argument shows that
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`it seeks an award to punish: Del Monte contends that disgorgement is proper not because of the
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`harm it suffered but because allowing Inprotsa to keep any monies it received would allow Inprotsa
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`to benefit from violating the injunction. See Resp. Final Brief (ECF No. 262 at 17).
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`Del Monte cites to Leshin for the proposition that disgorgement of profits rather than
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`3 Inprotsa contends that it operated at a loss during the time between entry of the judgment on the award and completion
`of destruction of the pineapples.
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`revenues (and implicitly that awarding those disgorged profits to Del Monte) is the proper remedy.
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`However, Leshin is not factually analogous to the case at hand. In Leshin the contempt defendants
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`were in violation of a court’s injunction regarding their services for debt consolidation or engaging
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`in deceptive or abusive telemarketing practices; charging fees, or executing contracts with fees,
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`among other things. The court found that the contempt defendants had illicitly taken compensation
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`from consumers and thus ordered that the funds they received from the consumers be disgorged to
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`compensate the consumers based on the consumers actual losses. The disgorgement thus directly
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`compensated those who had paid defendants by giving them back their own monies. In other
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`words, the remedy of disgorgement was to compensate the consumers who had been harmed by
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`the contemnor’s violation of the order based directly on their losses. Del Monte does not seek to
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`recoup monies it paid, nor otherwise evidenced its harm by the measure Inprotsa was paid. That is
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`to say, it has not evidenced at the hearing held on June 2, 2020 or otherwise that it suffered a loss
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`of profits, loss of revenues, or otherwise had its business effected.
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`Likewise, in the other cases to which Del Monte cites, those courts attempted to return
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`funds that had been illicitly captured from the aggrieved party by the contempt defendant. F.T.C.
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`v. RCA Credit Services, LLC, 8:08-CV-2062-T-27MAP, 2011 WL 5924969, at *6 (M.D. Fla. Oct.
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`5, 2011) (requiring the contempt defendant to pay monies to the FTC so that they may reimburse
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`consumers who established their right to compensation); Clairson Intern. Corp. v. Master Tool
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`Co., Inc., 84-2861-CIV, 1986 WL 84374, at *3 (S.D. Fla. Feb. 4, 1986) (holding that its contempt
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`sanction was merely compensatory in nature and ordering payment for the total loss of plaintiff).
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`Del Monte’s position here is not like the victims in those cases. Del Monte never paid
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`Inprotsa monies which must now be disgorged, rather it gave Inprotsa pineapple seeds so that
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`Inprotsa could grow the pineapples and sell them back to Del Monte. In fact, had Inprotsa complied
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`with the Final Judgment, Del Monte would have paid Inprotsa for the ripe pineapples, once they
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`had been grown: the agreement, as the Arbitral Panel interpreted it, did not require Inprotsa to pay
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`for these seeds, rather the agreement called for Del Monte to give Inprotsa the seeds for free and
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`for Inprotsa to sell them back to Del Monte. Del Monte was never set to recover money in exchange
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`for the pineapples, instead it agreed to buy grown pineapples, presumably at a preferential price
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`although this was never established, from Inprotsa so that Del Monte may sell them itself. Del
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`Monte has failed to show by clear and convincing evidence that its measure of damages is equal
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`to Inprotsa’s gross revenues and Del Monte advances no other evidence by which to measure an
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`award of damages. I do not therefore recommend an award entered on Del Monte’s behalf in the
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`amount sought, in excess of $16 million.
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`a. Attorney’s Fees
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`While I do not recommend disgorgement as an appropriate remedy, as explained above,
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`the purpose of civil contempt is to end the contemptuous behavior at issue. When a movant is
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`forced to seek contempt in order to affect compliance with a lawfully entered order, the movant is
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`entitled to recover its reasonable attorney’s fees and expenses cause by the contemnor defendant’s
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`contempt. Belize Telecom Ltd. v. Gov’t of Belize, 2005 WL 7858276, *8 (S.D. Fla. Apr. 13, 2005)
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`(“Plaintiffs are entitled to reasonable attorneys’ fees and expenses caused by Defendant’s
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`contempt.”); U.S. v. Far East Suppliers, Inc., 682 F. Supp. 1215, 1216-17 (S.D. Fla. 1988) (“[t]he
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`award of fees and costs is particularly appropriate where the contemnor willfully disregarded a
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`court’s order”). The facts that I certified, and adopted by Judge Moreno, showed that Inprotsa did
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`not stop selling the MD-2 pineapples until April of 2018, after Del Monte had filed its Motion for
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`Contempt but before Inprotsa had responded to that Motion. Therefore, the Motion was sufficient
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`to, and successful in, ending the contemptuous behavior. As such, Del Monte is entitled to its
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`Case 1:16-cv-24275-FAM Document 287 Entered on FLSD Docket 07/16/2020 Page 14 of 16
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`attorneys’ fees in bringing about compliance.
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`The Eleventh Circuit has found that a fee award does not necessarily have to be
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`proportional to the amount recovered by virtue of a contempt award. See PlayNation Play Systems,
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`Inc. v. Velex Corporation, 939 F.3d 1205, 1215 (11th Cir. 2019). As the Court found in PlayNation
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`Play Systems, “if a party . . . could not recover its attorneys’ fees, it would have a reduced incentive
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`to monitor for violations of court orders, particularly when its provable actual damages are
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`relatively small.” Id. At the same time, sanctions for civil contempt are not equivalent with typical
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`payment of attorneys’ fees, and civil contempt sanctions do not require the use of the lodestar
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`method. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Olympia Holding Corp., 140 Fed. Appx.
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`860, 864 (11th Cir. 2005). Del Monte is entitled to an award of fees incurred in the efforts
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`necessary to secure the contemnor’s compliance with the court’s order and to obtain compensation
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`for damages done. Far East Suppliers, 682 F. Supp. at 1216.
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`The total fees sought by Del Monte total $550,225.50 for 1,276.4 hours billed. The fees it
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`seeks span from June 5, 2017 through the present, including the hearing on June 30, 2020.
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`Additionally, Del Monte seeks $453.90 in costs. Del Monte attached the Declaration of Zoltan
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`Pinter, Esq. Mr. Pinter is the associate general counsel of the company that owns Del Monte. In
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`his declaration, Mr. Pinter represents that all of the fees and costs for which Del Monte currently
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`seeks an award from the Court have been paid in full by Del Monte (ECF No. 272-14). This
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`declaration filed by Mr. Pinter lends further support to the award of attorneys’ fees as they were
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`an actual expense incurred as a result of Del Monte’s pursuit of bringing about compliance with
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`this Court’s Judgment.
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`However, fees and costs are limited to the efforts expended that were necessary to secure
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`the contemnor’s compliance with the court’s order and to obtain compensation for damages done.
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`Case 1:16-cv-24275-FAM Document 287 Entered on FLSD Docket 07/16/2020 Page 15 of 16
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`Far East Suppliers, inc., 682 F. Supp. at 1216. The record evidence supports the finding that
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`Inprotsa had ceased the contemptuous behavior in April of 2018; fees incurred after that point are
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`not fairly attributable to securing compliance with the court’s order.
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`In terms of fees requested including filing of the Contempt Motion and those fees incurred
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`prior to the Contempt Motion being filed, Del Monte seeks 77.3 hours for written discovery to
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`Inprotsa, review of Inprotsa’s documents and discovery, and a discovery hearing before Magistra te
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`Judge Turnoff, for a total of $34,785.00; 24.8 hours for the preparation of the Declaration of
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`Rodrigo Jimenez, for a total of $11,160.00; 48.1 hours for the Declaration of Patrick Gannon, for
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`a total of $21,645.00; 78.3 for the deposition of Inprotsa officer, Jorge Gurria, for a total of
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`$35,235.00; and 238.7 fours for researching, drafting, and preparing its Motion for contempt, for
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`a total of $102,133.00. In total, for its pre-motion, and motion-related expenses it seeks 467.2 hours
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`for a total of $204,958.00. Inprotsa does not dispute the reasonableness of the hourly rate of Del
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`Monte’s attorneys. I find that these fees were necessarily incurred in order to bring Inprotsa into
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`compliance with this Court’s Judgment. As such, I recommend a fee award of $204,958.00 in favor
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`of Del Monte.
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`IV. CONCLUSION
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`Based on the foregoing,
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`the undersigned RESPECTFULLY RECOMMENDS as
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`follows:
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`1. Del Monte’s Renewed Motion for Final Entry of Judgment of Contempt be GRANTED
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`in part and DENIED in part;
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`2. That the Court Order Inprotsa to Show Cause whit it should not be held in contempt
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`for violating the Court’s Final Judgment by continuing to sell pineapples that resulted
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`from Del Monte seeds above 7% between May 2017 and April 2018;
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`Case 1:16-cv-24275-FAM Document 287 Entered on FLSD Docket 07/16/2020 Page 16 of 16
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`3. That the Court award Del Monte attorneys’ fees and costs in the amount of
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`$204,958.00.
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`Pursuant to Local Magistrate Rule 4(b), the parties have fourteen (14) days to serve and
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`file written objections, if any, with the Honorable Federico A. Moreno, United States District
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`Judge. Failure to file objections by that date shall bar the parties from de novo determination by
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`the District Judge of any factual or