NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0516n.06

Filed: August 21, 2008

No. 06-2344

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

M & C CORP.,

Plaintiff-Appellee,

v.

ERWIN BEHR GMBH & CO., KG,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

O P I N I O N

Before: GUY, MOORE, and GILMAN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Erwin Behr GmbH &

Co., KG (“Behr”) appeals three post-judgment orders in an arbitration case that has spanned sixteen

years and involved four prior appearances before this court. Behr appeals an order awarding

litigation expenses and statutory penalties under Michigan law to Plaintiff-Appellee M & C

Corporation (“M&C”), an orderfindingBehr in contempt of court, and a discovery order. M&C has

filed a motion to dismiss Behr’s appeal, arguing that none of the orders challenged are appealable

final orders. For the reasons discussed below, we DENY M&C’s motion to dismiss the appeal, we

AFFIRM the contempt and discovery orders, but we AFFIRM in part and REVERSE in part the

order regarding litigation expenses and statutory penalties.
The last time this case appeared in our court, we summarized the relevant facts in somewhat 1

greater detail. See M & C Corp. v. Erwin Behr GmbH & Co., KG, 411 F.3d 749, 751-56 (6th Cir.

2005) (Behr IV) (withdrawn); 2005 WL 1413132. The facts summarized above come from our

opinion in Behr IV.

Several of the awards compelled Behr to pay M&C money. “The total amount of principal 2

payments required under these awards is $1,976,292.47, which was to be paid in full, irrespective

of any other judicial proceeding, by March 31, 1994 . . . . Behr did not make any payment on the

principal amount of any of these awards,” and, as the district court noted in February 1996, “[t]o

date, Erwin Behr has not complied with any of the awards.” M & C Corp. v. Erwin Behr GmbH &

Co., KG, 165 F.R.D. 65, 66 (E.D. Mich 1996).

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I. BACKGROUND

Although the procedural history of this case is lengthy and complex, the facts relevant to this

appeal can be summarized fairly briefly. In 1985, M&C entered a contract with Behr to act as the 1

exclusive sales agent for Behr in the United States and Canada for at least five years for the sale of

wood interior panels for General Motors’ luxury automobiles. The contract specified that Michigan

law governed the parties’ agreement and that any disputes arising in connection to the contract be

arbitrated under the Rules of the Court of Arbitration of the International Chamber of Commerce.

Behr terminated the agreement in 1991 but failed to pay M&C commissions it had earned for some

sales and client development work. The parties’ dispute eventually came before an arbitrator in

London, England, and on March 1, 1994, the arbitrator issued eleven awards, which the district

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court confirmed, and this court affirmed. M &C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844

(6th Cir. 1996) (Behr I).

One of the awards, Award Eight, concerned payment of future commissions on the sales of

certain orders, and the parties disputed which orders were included within the scope of that award.

The district court agreed with Behr that the award was ambiguous regarding on which “orders” M&C

deserved commissions, and the district court remanded the case to the arbitrator for clarification.
3

We reversed that decision in M & C Corp. v. Erwin Behr GmbH & Co., KG, 143 F.3d 1033 (6th Cir.

1998) (Behr II). The parties continued to dispute the amount owed under the Eighth Award, and the

district court again remanded the case to the arbitrator for clarification. We reversed and remanded

again, requesting that the district court clarify the precise reason for its remand to the arbitrator.

M & C Corp. v. Erwin Behr GmbH & Co., KG, 326 F.3d 772 (6th Cir. 2003) (Behr III).

In March 2004, the district court specified that “‘[t]he award is unclear insofar as the Court

cannot determine whether or not [a list appearing in the award] is the exclusive list of the products

on which commissions are due . . . [and] there is a continuing controversy over how long particular

parts are commissionable.’” Behr IV, 411 F.3d at 756 (quoting district court’s remand order). The

district court remanded the case to the original arbitrator “(1) to state the exact scope of the products

commissionable under the Eighth Award and (2) to state what payments, if any, are due to each party

from the other under the Eighth Award.” Id.

Behr appealed the district court’s March 2004 remand order, and, while that appeal was

pending in our court, the arbitrator held the hearing that the district court had ordered on April 11-13,

2005, in London. On April 28, 2005, we heard oral argument in Behr IV and filed our decision on

June 17, 2005. In Behr IV, we concluded that the Eighth Award was not ambiguous and, retaining

jurisdiction in the case, we solicited further filings regarding the amounts owed under the reading

of the award and contract adopted in our opinion.

The day after Behr IV, the arbitrator issued a letter clarifying the award, see Joint Appendix

(“J.A.”) at 286-91 (Arbitrator’s 2005 Letter), and on July 27, 2005, we withdrew and vacated our

opinion, J.A. at 393 (Sixth Circuit Order). We stated that “in view of the arbitrator’s clarification”
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we granted the petition for rehearing, vacated our opinion, and remanded the case “to the district

court for enforcement proceedings in accordance with the arbitration award.” Id.

M&C filed a number of motions attempting to enforce the clarified award, and those motions

gave rise to the Orders at issue in this appeal. In particular, on September 14, 2006, the district court

issued an order grantingM&C’s motion for assessment of litigation expenses and statutory penalties

under the Michigan Sales Representatives Commission Act (“MSRCA”), accepting the magistrate

judge’s report and recommendation (“R&R”). J.A. at 65-73 (Statutory Damages & Litigation Fees

Order). As noted in the magistrate judge’s R&R, as to statutory damages, the MSRCA provides that

a principal who “intentionally” fails to pay commissions when they are due must pay “an amount

equal to 2 times the amount of commissions due but not paid as required by this section or

$100,000.00, whichever is less.” MICH. COMP. LAWS § 600.2961(5)(b); J.A. at 305 (Statutory

Damages & Litigation Expenses R&R). The MSRCA also provides that “the court shall award to

the prevailing party reasonable attorney fees and court costs” and defines “prevailing party” as “a

party who wins on all the allegations of the complaint or on all of the responses to the complaint.”

MICH. COMP. LAWS §§ 600.2961(6), 600.2961(1)(c).

The district court also issued an order on September 14, 2006, granting M&C’s motion for

contempt, again accepting the magistrate judge’s R&R. J.A. at 74-83 (Contempt Order). The

contempt order was based on Behr’s violation of an earlier January 1996 order that placed Behr in

receivership in response to Behr’s efforts to obstruct and delay M&C from collecting the payments

that the arbitrator had awarded M&C in 1994.

On January 31, 1996, the district court stated that it would “impose a limited receivership

over any direct or indirect property interest held by Erwin Behr in Behr Industries [“BIC”] of Grand
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Rapids, Michigan.” J.A. at 115 (Receivership Order at 18). On March 29, 1996, the district court

issued an Addendum to the Receivership Order, which contained the following language: “IT IS

FURTHER ORDERED that the defendant, Erwin Behr GmbH & Company, KG, its officers, agents,

servants, employees, attorneys . . . are enjoined from directly or indirectly transferring, receiving,

changing, encumbering, selling, removing, assigning or otherwise disposing of any assets and

property owned, controlled, or in possession of the defendant.” J.A. at 123. (Addendum to

Receivership Order). In 1996, Behr owned Erwin Behr Beteiligungs-GmbH (“Behr Beteiligungs”),

which owned Erwin Behr Automotive GmbH (“Behr Automotive”), which owned BIC. J.A. at 315

(Contempt R&R at 3); J.A. at 302 (Villwock Decl.).

In May 2005, while the case was pending in our court, Behr Beteiligungs sold its subsidiary

Behr Automotive, and its subsidiaryBIC, to a German private equity firm; this transaction occurred

without any notice to M&C, the district court, our court, the arbitrator, or the court-appointed

receiver. J.A. at 315 (Contempt R&R at 3). Behr has not disclosed any of the terms or conditions

of the sale. Id. The magistrate judge found that “Defendants are in unequivocal contempt of this

Court’s order,” J.A. at 317 (Contempt R&R at 5), and the district court agreed, noting that “[s]ince

the confirmation of the arbitration award, M&C has had extreme difficulty in collecting the amount

due,” J.A. at 75 (Contempt Order at 2).

Finally, on September 14, 2006, the district court issued an order overruling Behr’s

objections to the magistrate judge’s order requiring Behr to produce a witness for deposition in

Detroit, Michigan. J.A. at 84-85 (Discovery Order). The magistrate judge’s amended discovery

order noted that “Plaintiff [M&C] obtained a money judgment against [Behr, and Behr] has since

frustrated the attempts of [M&C] and this Court to ascertain the nature and location of [Behr’s]
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assets.” J.A. at 485-86 (Amended Discovery Order at 2-3). Although Behr’s counsel had claimed

that Behr was insolvent under German law and was under the control of an estate administrator who

lacked relevant personal knowledge and funds to travel to the United States, J.A. at 459-60

(Discovery Order at 1-2), the U.S. Bankruptcy Court for the Eastern District of Michigan denied

Behr’s application for recognition of a foreign bankruptcy proceeding. J.A. at 485 (Amended

Discovery Order at 2). Behr identified a representative willing to testify by phone from Germany,

but this individual was affiliated with Behr Automotive, not Behr. Appellant Br. at 52-53. The

magistrate judge found that this proposal did not comply with the discovery order, and the magistrate

judge amended the discoveryorder,requiringBehr to make a number of disclosures and to designate

and make available a witness for a deposition in Detroit. J.A. at 486 (Amended Discovery Order).

Behr timely appealed all three orders of the district court. In March 2007, M&C filed a

motion to dismiss Behr’s appeals for lack of jurisdiction, contending that none of the orders were

final, appealable orders. In April 2007, Behr filed a response, and M&C then filed a reply.

II. ANALYSIS

A. Statutory Damages and Litigation Expenses Order

M&C argues that we lack jurisdiction to review the district court’s order awarding M&C

statutory damages and litigation expenses because the order was not a final judgment, as it left

undetermined the amount that M&C was entitled to receive. Behr argues that the Arbitrator’s 2005

letter was a “new award” requiring confirmation before any enforcement proceeding. Neither

argument is convincing, and we address each in turn. Finally, Behr argues that the district court

improperly granted M&C’s motion for damages and expenses when no arbitrator had considered or

ruled on these claims, and we agree.
The parties vigorously dispute whether an order finding liability for, but not determining the 3

amount of, attorney fees is final and appealable. M&C’s position appears correct: such an order

may not be appealable. See Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 308 (6th Cir. 1988)

(noting prior holding “that while a judgment on the merits was a final judgment and could be

appealed when the amount of attorneys’ fees was undecided, such reasoning did not apply to a

splitting of the elements of attorneys’ fees”) (internal citation omitted). As explained in text above,

however, resolving this issue does not settle the matter because the district court’s award of statutory

damages under the MSRCA is a final order.

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1. Jurisdiction

M&C contends that the district court’s Statutory Damages and Litigation Fees Order is not

an appealable final judgment because the district court did not award a precise amount of litigation

expenses, but remanded the issue to the magistrate judge for consideration after M&C produces

evidence of its expenses. See Appellee Br. at 29; see also Appellee’s Motion to Dismiss. As Behr 3

notes, however, the portion of the order awarding M&C statutory penalties is complete and final.

We have noted that “[a]s a practical matter, most post-judgment orders should be deemed final

because ‘there is often little prospect that further proceedings will occur to make them final.’”

United States v. One 1985 Chevrolet Corvette, 914 F.2d 804, 807 (6th Cir. 1990) (quoting United

States v. Washington, 761 F.2d 1404, 1406 (9th Cir. 1985)). In its order regarding statutory penalties

under the MSRCA, the district court fixed a specific amount, and only M&C’s collection of that

amount remains. We have held that “[u]nder the doctrine of pendent appellate jurisdiction . . . a

court of appeals may, in its discretion, ‘exercise jurisdiction over issues that are not independently

appealable when those issues are “inextricably intertwined” with matters over which the appellate

court properly and independently has jurisdiction.’” Farm Labor Org. Comm. v. Ohio State

Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002) (quoting Chambers v. Ohio Dep’t of Human

Servs., 145 F.3d 793, 797 (6th Cir. 1998)).
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The district court’s Statutory Damages and Litigation Fees Order deals with two claims under

the MSRCA, and the order completely disposes of the statutory penalties claim. M&C concedes that

the statutory penalty aspect of the order is final and appealable but argues that we should not

consider the appeal essentially because of Behr’s history of delay and obstruction. Appellee’s

Motion to Dismiss at 18-19. Although we recognize that this litigation has a protracted history, we

nonetheless exercise our discretion to consider the issue of litigation expenses along with the

intertwined issue of the propriety of damages under the MSRCA.

2. The Need to Confirm the Arbitrator’s 2005 Clarification Letter

Behr argues that the Arbitrator’s 2005 Clarification Letter is a new award requiring judicial

confirmation under the FAA prior to enforcement. Appellant Br. at 31-36. Behr describes the letter

as a new award because the arbitrator held a hearing, considered new evidence, and determined a

specific amount of damages owed to M&C. We have previously held, however, that “the arbitrator

has the power . . . to go back and ‘clarify’ an ambiguous or incomplete portion of an award,” and that

is precisely what the arbitrator did in this case. Sterling China Co. v. Glass, Molders, Pottery,

Plastics & Allied Workers Local No. 24, 357 F.3d 546, 555 (6th Cir. 2004). The parties have

disputed the scope of the arbitrator’s original Eighth Award, which was a forward-looking order of

specific performance that commanded Behr to pay M&C commissions on the future sales of a class

of products. The parties’ dispute as to which products the arbitrator intended to include in this order

has exceeded a decade, and all the possible parts on which M&C might conceivably deserve a

commission were sold long ago. After the matter was finally remanded in 2005 to the original

arbitrator, he held a hearing and issued a letter clarifying the exact products he had meant to include

in the original award. Once the arbitrator identified those products using Behr’s own sales records,
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as kept by the court-appointed receiver, J.A. at 290 (Arbitrator’s 2005 Clarification Letter at 5), the

matter of calculating the commissions owed to produce an award total was a simple, ministerial task.

Even the case law that Behr cites supports viewing the arbitrator’s letter as a clarification and

not a new award requiring confirmation. As the Seventh Circuit has explained, when determining

whether an arbitrator’s action is an award, courts should “go beyond a document’s heading and delve

into its substance and impact.” Publicis Commc’n v. True North Commc’ns, Inc., 206 F.3d 725, 729

(7th Cir. 2000); see also Appellant Br. at 32-36 (citing Publicis). The substance and impact of the

arbitrator’s 2005 letter, issued after a remand ordered by the district court, was merely to clarify the

scope of the original award, not to issue any new award to M&C. The original Eighth Award was

one of specific performance, and although the arbitrator held a hearing and heard new evidence, the

effect of the letter was merely to clarify and determine precisely what Behr should have paid M&C

under the original award.

We conclude that the arbitrator’s 2005 letter was merely a clarification of the original award

that did not require confirmation.

3. The Award of Damages and Litigation Expenses under the MSRCA

Behr contends that the district court lacked the authority and jurisdiction to grant M&C’s

motion for damages and litigation expenses under the MSRCA. We agree.

As we noted in Behr I, the parties’ contract required them to submit disputes to arbitration.

Behr I, 87 F.3d at 846 (noting that the district court stayed proceedings on Behr’s breach of contract

suit and “ordered the parties to submit the dispute to arbitration as required by the contract”). To

receive damages, the MSRCA requires a showing that a defendant “intentionally failed to pay the

commission when due,” and the MSRCA provides litigation expenses only to a “prevailing party,”
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which it defines as “a party who wins on all the allegations of the complaint or on all of the

responses to the complaint.” MICH. COMP. LAWS § 600.2961. In his 2005 letter, the arbitrator

specifically declined to consider the issues of damages and expenses, noting that although “M&C

also claim[s] attorney’s fees and costs[, t]hose are not a matter for me but for the US Courts in which

proceedings for enforcement have been brought.” J.A. at 288 (Arbitrator’s 2005 Letter at 3).

Nonetheless, we believe that the issues of whether Behr “intentionally failed to pay” commissions

to M&C and whether M&C qualifies as a “prevailing party” are questions that an arbitrator, not the

district court or magistrate judge, must answer given the parties’ contract requiring arbitration of

their disputes.

Behr made this argument to the district court, but the court summarilyrejected it. The district

court stated Behr’s position as, “[i]n short, if the arbitrator did not make a ruling on statutory

penalties, Behr argues, this Court is unable to make a ruling.” J.A. at 69 (Statutory Damages and

Litigation Fees Order at 5). The district court labeled that objection “meritless,” explaining that “the

arbitrator did make a ruling on [M&C’s] entitlement to these additional expenses in his original

March 1, 1994 arbitration award,” in which “the arbitrator found that M&C was entitled to statutory

penalties.” Id. But, as Behr points out, the original arbitration award found that Behr “intentionally

failed” to pay commissions on sales that occurred between 1991, when Behr terminated the

agreement with M&C, and 1994, when the arbitration occurred. Appellant Br. at 21-26. In 2005,

M&C was seeking damages for Behr’s failure to pay commissions on sales that occurred after the

1994 arbitration and award. The arbitrator’s finding in 1994 regarding Behr’s conduct between 1991

and 1994 could not possibly be relevant to whether Behr “intentionally failed” to pay these later
Furthermore, given that the parties vigorously debated the scope of the Eighth Award for 4

years, with the district court and our court reaching varying interpretations of its meaning, we note

that Behr would seem to have a strong good-faith defense for its failure to pay M&C the

commissions. Indeed, in Behr IV, we initially agreed with Behr’s interpretation of the Eighth Award

and sought further submissions from the parties to determine whether Behr had already satisfied the

award or, in fact, overpaid M&C under Award Eight. Behr IV, 411 F.3d at 758, 761-62 (stating that

“[w]e agree with Behr” and noting expert’s calculation that Behr overpaid M&C).

Because we conclude that M&C may not receive litigation expenses prior to an arbitrator’s

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finding that M&C is entitled to them, we do not address the parties’ dispute regarding whether the

cost of the court-appointed receiver may be recovered as a “court cost” under MICH. COMP. LAWS

§ 600.2961(6).

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commissions. Whether Behr intentionally failed to pay these later commissions is a new question

that an arbitrator, not the district court, should address in this first instance.4

The issue of M&C’s entitlement to litigation expenses was similarly improper for the district

court to decide. The arbitrator’s original 1994 award found that M&C was entitled to litigation

expenses as a prevailing party under the MSRCA, J.A. at 388-89 (Arbitration Award at 42-43)

(awarding M&C $335,793.47 in legal expenses because it “succeeded” on the vast majority of its

claims), but the arbitrator’s June 2005 letter expressly declined to consider whether M&C was

entitled to litigation expenses from litigating the scope of the Eighth Award. J.A. at 288

(Arbitrator’s 2005 Clarification Letter at 3). While the arbitrator’s 2005 letter did adopt a view of

the Eighth Award in line with M&C’s view of the award, the question of whether M&C is a

prevailing party—which determines any entitlement to litigation expenses—is a matter that an

arbitrator, not the district court, should determine.5

In sum, we AFFIRM the district court’s Statutory Damages and Litigation Fees Order insofar

as it determined that the arbitrator’s 2005 letter was merely a clarification of the original award that

did not require confirmation, but we REVERSE the remainder of the order because the court
12

improperly usurped the role of the arbitrator in determining whether M&C was entitled to damages

and litigation expenses under the MSRCA.

B. Contempt Order

1. Standard of Review

“This Court reviews a district court’s finding of contempt for an abuse of discretion.” Liberte

Capital Group, LLC v. Capwill, 462 F.3d 543, 550 (6th Cir. 2006). “An abuse of discretion exists

where the district court relied upon clearly erroneous findings of fact or applied an incorrect legal

standard [and t]his Court will reverse only if it is left with a firm and definite conviction that a

mistake has been made.” Id. (internal citation omitted).

“The movant in a civil contempt proceeding bears the burden of proving by clear and

convincing evidence that the respondent ‘violated 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.’” Id. (quoting Glover v. Johnson, 934 F.2d 703, 707 (6th Cir. 1991)). “This Court requires

that the prior order be ‘clear and unambiguous’ to support a finding of contempt.” Id. at 550-51

(quoting Grace v. Ctr. for Auto Safety, 72 F.3d 1236, 1241 (6th Cir. 1996)). We must resolve

ambiguities “in favor of the party charged with contempt.” Id. at 551.

2. Jurisdiction

M&C argues that we lack jurisdiction to hear an appeal of a contempt order, citing Joy &

Middlebelt Sunoco, Inc. v. Fusion Oil, Inc., 179 F. App’x 301, 303 (6th Cir. 2006), for the

proposition that “a civil contempt order . . . is not considered a final order in this Circuit.” In Fusion

Oil, however, we next immediately quoted McAlpin v. Lexington 76 Auto Truck Stop, Inc., 229 F.3d

491, 500 (6th Cir. 2000), in which we stated that “a ‘judgment of civil contempt is not [itself] a final
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decree,’ and therefore is not appealable in the absence of a final judgment.” McAlpin, 229 F.3d at

500 (alteration in original, emphasis added) (quoting Blaylock v. Cheker Oil Co., 547 F.2d 962, 965

(6th Cir. 1976)); see also United States v. Conces, 507 F.3d 1028, 1037 n.7 (6th Cir. 2007) (citing

McAlpin and stating that “the post-judgment contempt order entered by the district court in this case

is considered final and reviewable”). This appeal involves a final judgment, and, as we noted in

McAlpin, the policy of preventing piecemeal litigation is served when a final judgment exists

because the concern that the appeal of the contempt order represents an interlocutory order is not

present. Id.

M&C misreads Fusion Oil and McAlpin, and both cases demonstrate that we have

jurisdiction in this case to hear Behr’s appeal of the district court’s order finding it in contempt.

3. Analysis

Behr challenges the contempt order on the ground that the wording in the original orders was

ambiguous and did not cover the transaction in question. We disagree, and accordingly we

AFFIRM the contempt order.

As stated above, on January 31, 1996, the district court stated that it would “impose a limited

receivership over any direct or indirect property interest held byErwin Behrin Behr Industries [BIC]

of Grand Rapids, Michigan.” J.A. at 115 (Receivership Order at 18). On March 29, 1996, the

district court issued an Addendum to the Receivership Order, which contained the following

language: “IT IS FURTHER ORDERED that the defendant, Erwin Behr GmbH & Company, KG,

its officers, agents, servants, employees, attorneys . . . are enjoined from directly or indirectly

transferring, receiving, changing, encumbering, selling, removing, assigning or otherwise disposing
14

of any assets and property owned, controlled, or in possession of the defendant.” J.A. at 123.

(Addendum to Receivership Order).

Behr’s challenge to the contempt order hinges on arguing that because the words “directly

or indirectly” modify the list of verbs beginning with “transferring,” and do not modify the phrase

“any assets and property owned, controlled, or in possession ofthe defendant,” the Addendum to the

Receivership Order did not clearly reach Behr’s “indirect” property interest in BIC, a subsidiary

corporation several levels below Behr. Even resolving any possible ambiguities in favor of the party

charged with contempt, this argument lacks any merit. As the district court noted in its contempt

order, the “January 31, 1996 receivership order . . . noted that Behr may be holding and concealing

assets through a chain of affiliates, including BIC.” J.A. at 78 (Contempt Order at 5). Further,

although Behr expends much effort arguing that, under doctrines of corporate law, a parent company

does not “own” legally distinct subsidiary corporations, Behr ignores that the Addendum also

prohibited Behr from transferring or disposing of “any assets and property . . . controlled” by it. J.A.

at 123 (Addendum to Receivership Order) (emphasis added). A corporation that owns 100% of the

shares of another corporation, or chain of corporations, “controls” those corporations in any

meaningful sense of the word. Most importantly, the Receivership Order made specific reference

to BIC. J.A. at 115 (Receivership Order at 18).

Given that the Order’s operative language included the word “controlled” and that the Order

specifically referred to BIC, we hold that the district court did not abuse its discretion in finding Behr

in contempt.
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C. Discovery Order

1. Standard of Review

“[I]t is well established that the scope of discovery is within the sound discretion of the trial

court.” Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981).

2. Jurisdiction

M&C argues that we lack jurisdiction over Behr’s appeal of the district court’s discovery

order because “post-judgment orders granting discovery, such as those relating to judgment debtors

‘are not considered final judgments and may be appealed only after the issuance of a contempt order

for failure to comply.’” Piratello v. Philips Elecs. N. Am. Corp., 360 F.3d 506, 509 (5th Cir. 2004)

(quoting Richmark Corp. v. Timber Falling Consultants, Inc., 937 F.2d 1444, 1449 (9th Cir. 1991));

see also Appellee Br. at 31-32 (citing Piratello and Richmark along with cases from the Seventh and

Eleventh Circuits). M&C also notes that the Seventh Circuit has observed that when a “judge orders

discovery, the person ordered to produce, if desperate for an immediate appeal, can disobey the order

and appeal the resulting judgment for criminal contempt.” Cent. States, Se. & Sw. Areas Pension

Fund v. Express Freight Lines, Inc., 971 F.2d 5, 6 (7th Cir. 1992).

Behr counters with two arguments: that a contempt order is present in this case, and that

M&C misreads Judge Posner’s opinion in Express Freight Lines. See Appellant Resp. to Mot. to

Dismiss at 9-11. We agree with Behr’s second argument that M&C misreads Judge Posner’s opinion

in Express Freight Lines and that his reasoning would support holding that jurisdiction exists over

Behr’s appeal in this case. Appellant Resp. to Mot. to Dismiss at 10.

Behr highlights the following language from Express Freight Lines:
See M & C Corp. v. Erwin Behr GmbH & Co., KG, 34 F. Supp. 2d 543, 548, 545 (E.D. 6

Mich. 1999) (“not[ing] that the conduct of Erwin Behr throughout the pendency of these collection

proceedings has been deplorable” and that “[m]any of [M&C’s] valid discovery techniques have

been resisted by Erwin Behr, particularly the depositions of the [BIC] and Erwin Behr

representatives[,] . . . [which] is consistent with its prior attempts . . . to frustrate the development

of this case and delay the ultimate payment of its obligation”); see also M & C Corp. v. Erwin Behr

GmbH &Co., KG, 165 F.R.D. 65, 67 (E.D. Mich. 1996) (describing Behr’s attitude as “disgraceful,”

its “calculated strategy to delay payment of this judgment,” and its “blatant lack of respect for the

authority of this nation’s judicial process”).

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A contested collection proceeding will end in a judgment or a series of

judgments granting supplementary relief to the plaintiff. The judgment that

concludes the collection proceeding is the judgment from which the defendant can

appeal. In doing so he can of course bring before the appellate court any

interlocutory orders of which he complains that have not become moot, including an

order granting his adversary postjudgment discovery. But that order is not appealable

until then.

Express Freight Lines, 971 F.2d at 6 (internal citations omitted); see also Appellant ReplyBr. at 5-6;

Appellant Resp. to Mot. to Dismiss at 10. We have previously cited Express Freight Lines regarding

a related point. United States v. Worthy, No. 97-4459, 1998 WL 898840, at *1 (6th Cir. Dec. 17,

1998) (per curiam order) (stating that “the district court’s order denying Worthy’s discovery motion

was a final judgment” and citing Express Freight Lines).

We therefore hold that a party may appeal a post-judgment order granting discovery when

the party is also appealing the collection judgment itself, as is the case here given that Behr is

appealing the district court’s final orderregarding the assessment of statutory damages and litigation

expenses under the MSRCA. We proceed to discuss whether the district court abused its discretion

in granting M&C’s motion for discovery.

3. Analysis

In light of the history of this case, in which Behr has received numerous sanctions for its

tactics of delay and obstruction, and given what the magistrate judge termed Behr’s “unequivocal” 6
17

violation of the district court’s Receivership and Addendum orders, the district court did not abuse

its discretion in entering the discovery order in this case. In its 1996 Receivership Order, the district

court presciently observed that because “Behr has already demonstrated that its disclosures have not

been consistently accurate . . . there is a very real concern in this case that assets of a foreign

corporation, which might otherwise be used to satisfy this judgment, may be removed from the

jurisdiction of this court.” J.A. at 115 (Receivership Order at 18). For that reason, the district court

“impose[d] a limited receivership over any direct or indirect property interest held by Erwin Behr

in [BIC] of Grand Rapids, Michigan.” Id. In May 2005, while this case was pending before this

court, one of Behr’s subsidiaries, over which it had total control, sold off a subsidiary that owned

BIC in blatant violation of the district court’s order.

After M&C learned that Behr had sold BIC, M&C sought to depose a representative of Behr

regarding this transaction, and Behr has refused to designate any witness, claiming it has entered

bankruptcy in Germany. But as M&C notes, Behr has twice had its petitions for recognition of a

foreign bankruptcy proceeding dismissed. Appellee Br. at 60-61 (citing dismissals). Further, M&C

notes that although Behr contends that its German bankruptcy proceeding was filed in August 2005

and power over the company was vested in a person beyond its control, Appellant Br. at 50-51, Behr

was nonetheless able on October 13, 2005, to secure a sworn declaration from Klaus Villwock, who

stated that he was the former manager of Behr who could testify about various matters relating to

Behr for the purpose of challenging the contempt order. J.A. at 302-03 (Villwock Aff.); Appellee

Br. at 61-62.

In light of these facts, the district court’s statement that “[t]he Magistrate Judge did not err

in believing that there must be at least one person who can speak on behalf of Behr” was not an
18

abuse of discretion. J.A. at 84 (Order OverrulingBehr’s Objections to Magistrate Judge’s Discovery

Order); see also J.A. at 459-61 (Magistrate Judge’s Order Granting M&C’s Motion to Compel

Discovery).

In sum, we hold that we have jurisdiction to consider Behr’s appeal of the discovery order

alongside Behr’s appeal of the statutory damages and litigation expenses order and the contempt

order. We also hold that the district court did not abuse its discretion in ordering that Behr designate

an official for a deposition in the United States.

III. CONCLUSION

For the reasons discussed above, we DENY M&C’s motion to dismiss the appeal, we

AFFIRM the district court’s contempt and discovery orders, but we AFFIRM in part and

REVERSE in part the order regarding litigation expenses and statutory penalties.