IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BEN E. KEITH COMPANY, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00868

 §

BOSTON MARKET CORPORATION, §

et al., §

Defendant. §

ORDER 

Before the Court is Plaintiff’s Motion for Order to Show Cause Why Defendant Boston 

Market Corporation Should Not be Held in Contempt (ECF No. 79), filed November 27, 2023.

The Motion alleges that Plaintiff’s counsel served Defendant with a subpoena to appear and 

produce documents at a deposition scheduled for November 17, 2023, at 10:00 a.m., by Zoom. Id.

at 1-2. Plaintiff’s counsel appeared for the deposition, but Defendant did not. Id. at 2, see also ECF 

No. 79- 2.

The Court referred the Motion to Magistrate Judge Ray on November 28, 2023. ECF No. 

81. On that same day, the Magistrate Court ordered Defendant to file any response to the Motion 

on or before December 19, 2023, and to appear before the Court at 10:00 a.m. C.S.T. in courtroom 

508 of the Eldon B. Mahon United States Courthouse in Fort Worth, Texas, to show cause why it 

should not be held in contempt. ECF No. 82 at 1. Although served with notice of the Court’s Order 

through its registered agent (ECF No. 84), Defendant did not respond to the Motion or appear at 

this hearing.

Following the December 19th hearing, the Magistrate Court entered a Certification of 

Contempt (ECF No. 87) and recommended that this Court “conduct a hearing to hear evidence as 

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to why Defendant should not be found in contempt of court for failing to comply with the subpoena 

served by Plaintiff as described in the Motion.” ECF No. 79. The Court held a show cause hearing 

on January 26, 2024. Although served with notice of the Court’s Order through its registered agent 

(ECF No. 92), Defendant did not respond to the Motion or appear at hearing.

“A party commits contempt when he violates a definite and specific order of the court 

requiring him to perform or refrain from performing a particular act or acts with knowledge of 

the court’s order.” Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir. 

2013). To hold an individual in civil contempt, “it must be found by clear and convincing 

evidence that ‘(1) a court order was in effect, (2) the order required specified conduct by the 

respondent, and (3) the respondent failed to comply with the court’s order.” United States v. City 

of Jackson, 359 F.3d 727, 731 (5th Cir. 2004)). 

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

civil contempt.” United States v. Smith, No. 5:17CV86-JRG-CMC, 2018 WL 4524123, at *3 (E.D. 

Tex. Sept. 13, 2018) (quoting Shillitani v. United States, 384 U.S. 364, 370 (1966)); see also Int’l 

Union, Union Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994) (“Courts thus have 

embraced an inherent contempt authority, as a power necessary to the exercise of all others.” 

(internal citation omitted)). Accordingly, judicial sanctions may “‘be employed for either or both 

of two purposes: to coerce the [respondent] into compliance with the court’s order, and to 

compensate the complainant for losses sustained.’” Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 

F.3d 574, 585 (5th Cir. 2000) (quoting United States v. United Mine Workers of Am., 330 U.S. 

258, 303–04 (1947)). 

“[T]he district court has broad discretion in assessing sanctions to protect the sanctity of 

its decrees and the legal process.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 582 (5th 

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Cir. 2005). But “[i]n selecting the appropriate contempt sanction, ‘a court is obliged to use the 

least possible power adequate to the end proposed.’” Allstate Settlement Corp. v. Doucette, No. H15-1130, 2016 WL 3346531, at *3 (S.D. Tex. June 16, 2016) (quoting Spallone v. United States, 

493 U.S. 265, 276 (1990)). Moreover, because civil contempt sanctions “are considered to be 

coercive and avoidable through obedience,” Bagwell, 512 U.S. at 827, the respondent should be 

able to “avoid the sanctions by promptly complying with the court’s order,” Smith, 2018 WL 

4524123, at *7 (internal citation omitted).

The Court HOLDS Boston Market Corporation in civil contempt of court. Boston Market 

Corporation may purge its civil contempt by appearing, by and through its managing agent or 

other person authorized to testify on its behalf and to produce documents at the oral deposition 

listed below: 

Plaintiff, BEN E. KEITH (“Plaintiff”'), acting by and through its attorney, 

will take the oral deposition duce tecum of BOSTON MARKET CORPORATION 

(“Deponent”), by stenographic means, following the swearing in by the witness by 

a person authorized by law to do so at the offices of AKERLY LAW PLLC, 2785 

Rockbrook Drive, Suite 201, Lewisville, Texas 75067, on February 22, 2024, 

beginning at 10:00 o’clock a.m. C.S.T. The deposition will be by ZOOM.

Further, the Court GRANTS Plaintiff’s request for attorneys’ fees in the amount of

$1,140.50 as a sanction for failing to comply with the subpoena and Court orders. Plaintiff shall 

serve this Order on Defendant and file a notice on the docket of this case indicating how service 

was effectuated.

SO ORDERED on this 26th day of January, 2024.

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