United States District Court, S.D. Mississippi, Hattiesburg Division
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
For the reasons stated below, the Court grants in part and denies in part Plaintiff's Motion for Attorney's Fees . Pursuant to the parties' Agreed Order  of June 30, 2014, and the civil contempt analysis below, the Court awards Plaintiff $6, 050.00 in attorney's fees as compensation for its cost to enforce the previously entered Agreed Orders [76, 99, 104].
This case involves claims under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"),  the Fair Housing Act ("FHA"),  and 42 U.S.C. § 1983. The subject property is a women's shelter operated by a local religious organization. On November 7, 2013, the parties entered into an agreed order  settling the case. They agreed that Defendant would "inspect Plaintiff's property" and "provide and process all necessary and required permits for a certificate of occupancy no later than December 15, 2013."
On March 12, 2014, Plaintiff filed a Motion for Contempt , claiming that Defendant had not inspected the premises or issued any permits or a certificate of occupancy ("CO"). Defendant responded  to the motion, and the Court held a hearing on April 15, 2014, at which it heard testimony and argument concerning the inspection process. The Court granted the motion for contempt in part and deferred ruling in part . The Court ordered Defendant to complete its inspection of the premises and issue a building permit and temporary CO to Plaintiff on or before May 1, 2014. Upon completion of a "dorm mother" suite, Defendant was to issue a permanent CO. The Court deferred ruling on the issue of fees until Defendant had complied with the Court's order.
On May 14, 2014, Plaintiff renewed its Motion for Contempt , representing that the Defendant had once again failed to comply with the Court's order. The Court set a hearing  and ordered representatives of the parties with full decision-making authority to appear. It also ordered Defendant to be prepared to present evidence - including but not limited to relevant public records and the testimony of its employees or agents with knowledge of Defendant's inspection, permitting, and CO issuance process with respect to Plaintiff and other parties.
Defendant responded  to the renewed Motion for Contempt. It denied Plaintiff's allegations and claimed that it had continually requested that Plaintiff provide it with information necessary to conduct the inspections. Defendant contended that Plaintiff had failed to comply with the Agreed Order's  requirement that the parties "cooperate with one another in good faith" and commit "any action with is necessary" to consummate the agreement.
The parties and counsel appeared for a hearing on June 25, 2014. At the suggestion of the Court, they were able to settle their disagreement and jointly reach a plan of action to finally put this matter to rest. On June 30, 2014, the Court entered the parties' latest Agreed Order , which includes far more specific deadlines and requirements than the previous ones. With respect to Plaintiff's attorney fees for enforcement of the settlement, the parties agreed that the Court would decide the issue after a round of briefing. Plaintiff's Motion for Fees  is now fully briefed and ready for the Court's review.
B. Civil Contempt
The civil contempt analysis is relatively simple. To prove civil contempt, the movant must demonstrate "(1) that a court order was in effect, and (2) that the order required certain conduct by the respondent, and (3) that the respondent failed to comply with the court's order. To determine compliance with an order, the court simply asks whether the respondent" did what the order required. FDIC v. LeGrand, 43 F.3d 163, 170 (5th Cir. 1995). "If he has not, the burden shifts to the respondent to rebut this conclusion, demonstrate an inability to comply, or present other relevant defenses." Id. "Willfulness is not an element of civil contempt." Petroleos Mexicanos v. Crawford Enters., 826 F.2d 392, 401 (5th Cir. 1987). "In a civil contempt proceeding, the movant bears the burden of establishing the elements of contempt by clear and convincing evidence." Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995).
Defendant plainly failed to comply with the November 2013 Agreed Order . The Order provided: "The City of Hattiesburg shall inspect Plaintiff's property located at 204 Eupora, Hattiesburg, Mississippi 39401 as a residential property... and process all necessary and required permits for a certificate of occupancy no later than December 15, 2013." Defendant did not comply with these requirements, and it admits as much in briefing.
Defendant contends, however, that it was unable to comply with the order. The inability to comply with an order is a defense to civil contempt. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983). "Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action. It is settled, however, that in raising this defense, the defendant has a burden of production." Id.
After two hearings on these issues, the Court is not convinced that Defendant was unable to comply with the order . Defendant argues that Plaintiff failed to "provide the necessary responses" to inquiries regarding certain requirements for issuing permits and a CO, but Plaintiff's architect disputed this claim. Defendant also argues that its building inspection department was "significantly short of personnel." However, in a teleconference held on June 24, 2014, the attorneys represented to the Court that Defendant had issued over a thousand permits since the entry of the original Agreed Order . Furthermore, Defendant's building inspector, Kevin Bates, testified on April 15, 2014, that he was simply unaware of what had been negotiated in the settlement, and that he would have made this matter a priority had he understood its significance. Finally, it is noteworthy that the impediments to Defendant's compliance disappeared quickly after the Court's last hearing on this subject, which was the first hearing after the Court had granted Plaintiff a significant fee award .
The bottom line is that Defendant agreed to "inspect Plaintiff's property" and "provide and process all necessary and required permits for a certificate of occupancy no later than December 15, 2013." For the reasons stated above, Defendant has not carried its burden in proving that it was unable to move that ...