UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

EUGENE SCALIA, Secretary of Labor,*

 

 Plaintiff - Appellee, 

v. 

PARAGON CONTRACTORS 

CORPORATION; BRIAN JESSOP, 

individually, 

 Defendants - Appellants, 

PAR 2 CONTRACTORS, LLC, 

 Intervenor Defendant - Appellant, 

and 

JAMES JESSOP, individually, 

 Defendant,**

Nos. 18-4147 & 18-4148 

(D.C. No. 2:06-CV-00700-TC) 

(D. Utah) 

_________________________________ 

 * Pursuant to Fed. R. App. P. 43(c)(2), Eugene Scalia is automatically 

substituted for Thomas E. Perez as Plaintiff-Appellee. 

** In a Memorandum Decision Including Findings of Fact and Conclusions of 

Law and Contempt Order issued September 10, 2018, the district court concluded 

that Paragon Contractors Corporation; Brian Jessop; Par 2 Contractors, LLC; Don 

Jessop, as Par 2’s agent; and Jacob Barlow, as Par 2’s agent, were in civil contempt 

of the district court’s 2007 injunction. However, Don Jessop and Jacob Barlow were 

not parties to the underlying district court proceedings; they were found to be in 

contempt only in their capacities as agents of Par 2, which was a defendant below. 

Accordingly, Don Jessop and Jacob Barlow are not proper parties to these appeals, 

and the Clerk is directed to remove them from the caption in 18-4147. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 6, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

ORDER AND JUDGMENT***

_________________________________ 

Before LUCERO, HARTZ, and MATHESON, Circuit Judges. 

_________________________________ 

Paragon Contractors Corporation (“Paragon”), Brian Jessop, and Par 2 

Contractors, LLC (“Par 2”) appeal a contempt order issued by the district court. 

Exercising jurisdiction under 28 U.S.C. § 1291, see O’Connor v. Midwest Pipe 

Fabrications, Inc., 972 F.2d 1204, 1208 (10th Cir. 1992), we affirm. 

I

In 2007, the district court entered a permanent injunction against Paragon, 

Brian Jessop, James Jessop, and “their officers, agents, servants, employees, and 

those persons in active concert or participation with them who receive actual notice” 

of the injunction, enjoining them from employing minors “under conditions 

constituting oppressive child labor,” as defined in the Fair Labor Standards Act 

(“FLSA”). Several years later, the Department of Labor (“DOL”) began 

investigating additional child labor violations by Paragon and Brian Jessop. 

Although Paragon was primarily a construction company, DOL suspected it was 

using children to harvest pecans. In 2016, the district court found Paragon and Brian 

Jessop in contempt of the 2007 injunction. The court set up a claims process through 

which children employed by Paragon between 2008 and 2013 could seek back wages 

 *** This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, 

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 

10th Cir. R. 32.1. 
3 

related to the pecan harvest. It also appointed a special master to ensure Paragon’s 

compliance with the injunction. On appeal, we affirmed the contempt finding and 

back-wages sanction but reversed the appointment of a special master. Acosta v. 

Paragon Contractors Corp., 884 F.3d 1225, 1229 (10th Cir. 2018). 

Separate from the pecan-harvesting investigation, DOL began to suspect that 

Par 2 was taking over Paragon’s operations in an effort to evade the 2007 injunction. 

In September 2017, DOL filed a Motion for Order to Show Cause, alleging that 

Paragon had simply changed its name to Par 2 and violated the injunction by 

employing minors in hazardous construction work in 2016. DOL sought joinder of 

Par 2, a finding of contempt, and various sanctions. Par 2 filed a motion to intervene, 

which the district court granted. The court ordered the parties to provide their direct 

examination testimony by declaration, with declarants to appear for crossexamination at an evidentiary hearing. After the evidentiary hearing, the district 

court found the following facts.

Brian Jessop is the owner and president of Paragon, a construction company 

that engaged in rough carpentry and framing jobs. He was Paragon’s estimator for 

projects and the primary point of contact with other contractors. Don Jessop is Brian 

Jessop’s brother and worked as a Paragon foreman. Jacob Barlow is Brian Jessop’s 

nephew. He did timekeeping, payroll, and accounting for Paragon, using the title 

“Office Manager.” Paragon had $5 to $7 million in annual revenues from 2010 to 

2012. But by 2016, the company had only a “job or two,” and by 2017 had ceased 

operations and had no employees. 
4 

In December 2013, in the midst of a subpoena dispute related to the pecan 

harvest, Don Jessop filed articles of incorporation for Par 2. The company began 

construction framing work similar to that done by Paragon in 2014. Par 2 had just 

over $1 million in revenues in 2014, which increased to $8 million by 2016. 

Initially, Par 2 used Paragon’s phone number and email address to communicate with 

contractors. The entities operated out of the same building through 2017. Many of 

Par 2’s employees—at least nineteen of them—had previously worked at Paragon. 

Paragon’s management team took on analogous roles at Par 2. Don Jessop, 

who was a Paragon foreman, was listed as the sole owner and member of Par 2 on 

paperwork filed with the Utah Department of Commerce. He continued to act as 

foreman for the new company. Jacob Barlow, Paragon’s officer manager, is also the 

office manager for Par 2. Similarly, Brian Jessop continued to work as an estimator 

and primary contact person for contractors at Par 2. However, Brian Jessop and Don 

Jessop attempted to conceal Brian Jessop’s involvement in Par 2 from DOL, both 

claiming he was not substantially involved in the company. Brian Jessop stated that 

he was merely helping with Par 2 for a few hours each evening. But emails show he 

engaged in day-to-day management activities during business hours and signed 

official safety records as a supervisor of Par 2. Moreover, Par 2 produced documents 

to DOL from which Brian Jessop’s name had been removed. DOL obtained Par 2 bid 

documents from a contractor that included a salutation from Brian Jessop and 

revisions that were noted as “per phone call with Brian Jessop.” When the same 

documents were produced by Par 2, Brian Jessop’s name had been deleted. 
5 

Paragon and Par 2 representatives and employees gave inconsistent responses 

about which of the two companies they worked for. When questioned on a job site, 

Par 2 employees identified themselves as working for Paragon. In response to a 

request for safety records, Par 2 sent Occupational Safety and Health Administration 

forms 300A and 300 with “Paragon Contractors Corp” or “Paragon Contractors 

Corporation” as the establishment name. At one point, a contractor sent an email to 

Par 2 noting that “you[r] company name changed” from Paragon and requesting an 

updated W-9 form. Jacob Barlow sent an updated W-9 for Par 2. 

In November 2016, the Arizona Department of Occupational Safety and Health 

and DOL’s Wage and Hour Division inspected a Par 2 job site in Arizona. DOL 

determined two minors were engaged in work on the roof using nail guns. It assessed 

a civil monetary penalty, which Par 2 paid without contest. 

The district court issued an order finding Paragon, Brian Jessop, Par 2, and 

Don Jessop and Jacob Barlow (as Par 2’s agents) in contempt of the 2007 injunction. 

It found defendants’ testimony not credible, citing numerous inconsistencies and 

evasions. The court ordered defendants to provide a copy of the 2007 injunction to 

all employees, contractors, and other entities with whom they contracted in the last 

ten years; to place $50,000 into a fund to provide FLSA training; and to pay 

attorneys’ fees and costs. Paragon and Brian Jessop filed a timely notice of appeal, 

as did Par 2. We consolidated the appeals. 

 After briefing in this appeal was complete, a ruling was issued on the issue of 

back wages for the pecan-harvesting violations. The district court determined 
6 

Paragon and Brian Jessop owe $1,012,960.90 to the minors they employed and 

ordered them to pay $812,960.90 into the fund for compensating the children for 

unpaid wages. That order is the subject of a separate appeal. In addition, DOL is 

currently seeking civil penalties against Paragon and Brian Jessop in an 

administrative action, DOL case 2015-CLA-00008, related to the pecan-harvesting 

violations. 

II 

We review a district court’s civil contempt ruling for abuse of discretion. 

Reliance Ins. v. Mast Constr. Co., 84 F.3d 372, 375 (10th Cir. 1996). “A district 

court has broad discretion in using its contempt power to require adherence to court 

orders. In determining whether the court committed legal error by violating limits on 

such power, our review is de novo.” O’Connor, 972 F.2d at 1209 (quotation 

omitted). We review findings of fact for clear error. See Reliance, 84 F.3d at 375. 

A 

Par 2 contends that the district court violated its due process rights by finding 

it to be a successor to Paragon in a contempt proceeding. Specifically, Par 2 argues it 

cannot be subjected to liability for back wages from the pecan-harvest order and civil 

penalties from the administrative action absent a complaint, discovery, and a jury 

trial. Whether adequate due process protections have been afforded is generally “a 

question of law subject to de novo review.” Pub. Serv. Co. of Okla. v. N.L.R.B., 318 

F.3d 1173, 1182 (10th Cir. 2003). However, we do not reach the merits of Par 2’s 

due process argument because we conclude the argument is premature. 
7 

“A claim is not ripe for adjudication if it rests upon contingent future events 

that may not occur as anticipated or indeed may not occur at all.” Texas v. United 

States, 523 U.S. 296, 300 (1998) (quotation omitted). As Par 2 itself frames its 

argument, its being deemed a successor to Paragon in a contempt proceeding was 

improper because Par 2 “may be held liable for millions of dollars in penalties and 

claims being pursued against Paragon.” (emphasis added).1 It is uncertain whether 

Par 2 will in fact be held liable in the manner it predicts. Par 2’s due process 

argument as to the back pay award would become ripe only if the following events 

occur: the award is affirmed by this court, DOL seeks to hold Par 2 responsible for 

the award, the district court holds Par 2 liable, and the court does so based on the 

findings in this case without affording Par 2 additional process. Par 2’s potential of 

being held liable for civil penalties is even more attenuated. It appears that civil 

penalties have not yet been assessed at the administrative level, and, if they are, the 

same chain of events would need to occur. 

 1

 Par 2’s argument appears to rest on the mistaken assumption that, because the 

district court characterized Par 2 as a successor to Paragon for purposes of binding it 

to the 2007 injunction, Par 2 is a successor to Paragon in every context. Not so. As 

the Supreme Court has recognized, asking whether a company “is a ‘successor’ is 

simply not meaningful in the abstract” because “[a] new employer . . . may be a 

successor for some purposes and not for others.” Howard Johnson Co. v. Detroit 

Local Joint Exec. Bd., Hotel & Rest. Emp. & Bartenders Int’l Union, AFL-CIO, 417 

U.S. 249, 262 n.9 (1974). Whether a successor is liable for a specific sum depends 

on “the facts of each case and the particular legal obligation which is at issue.” Id. 

 
8 

If Par 2 is in fact held liable for back pay and civil penalties, it will have the 

opportunity to challenge the process provided to it during those proceedings.2

 But 

Par 2 may not be held liable at all. Even if it is, we do not yet know what process 

will be afforded to Par 2 in those proceedings. Accordingly, we conclude Par 2’s due 

process claim is premature. And because Par 2 does not advance any particular 

argument in its Opening Brief indicating the process provided to it was insufficient 

with respect to the sanctions actually imposed by the district court, any such 

argument is waived. See Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 

1199, 1205 (10th Cir. 1997). Further, defendants failed to raise any due process 

argument before the district court, providing an independent basis to decline 

consideration of this issue. See Rosewood Servs., Inc. v. Sunflower Diversified 

Servs., Inc., 413 F.3d 1163, 1167 (10th Cir. 2005) (arguments not raised in district 

court are waived on appeal). 

B 

Defendants also challenge the district court’s application of the contempt order 

to Par 2, Don Jessop, and Jacob Barlow. In general, a party may be held in civil 

contempt for violating an injunction if the plaintiff proves “by clear and convincing 

 2

 We note that the primary case upon which Par 2 relies in its Opening Brief, a 

decision of the Utah Supreme Court, considered the due process claims at issue only 

after post-judgment collection procedures were complete. See Brigham Young Univ. 

v. Tremco Consultants, Inc., 156 P.3d 782, 785 (Utah 2007). Federal courts have 

similarly considered whether post-judgment efforts to collect from a party not bound 

by an original judgment followed appropriate procedures. See, e.g., Thomas, Head & 

Greisen Emps. Tr. v. Buster, 95 F.3d 1449, 1452-53 (9th Cir. 1996). 
9 

evidence, that a valid court order existed, that the defendant had knowledge of the 

order, and that the defendant disobeyed the order.” Reliance, 159 F.3d at 1315. On 

appeal, defendants do not contest that the injunction prohibited Brian Jessop, 

Paragon, their agents, and those in “active concert or participation” with them, from 

violating the provisions of FLSA addressing oppressive child labor. Nor do they 

challenge the district court’s findings that Par 2 in fact violated those provisions. 

The only question before us is whether Par 2 and its agents were appropriately bound 

by the injunction. 

An injunction binds the parties, “the parties’ officers, agents, servants, 

employees, and attorneys,” and “other persons who are in active concert or 

participation with” them. Fed. R. Civ. P. 65(d)(2). However, such individuals must 

“receive actual notice” of the injunction to be bound by it. Id. As the Supreme Court 

long ago recognized, such a rule is necessary so “that defendants may not nullify a 

decree by carrying out prohibited acts through aiders and abettors, although they 

were not parties to the original proceeding.” Regal Knitwear Co. v. N.L.R.B., 324 

U.S. 9, 14 (1945). If entities or individuals are the “instrumentalities through which 

[a] defendant seeks to evade an order or . . . come within the description of persons in 

active concert or participation with [a defendant] in the violation of an injunction,” 

then “they are brought within scope of contempt proceedings.” Id. Accordingly, 

contempt orders are binding on entities that “operate as merely a disguised 

continuance of the old employer.” Id. (quotations omitted). This analysis “depends 

on an appraisal of [the entity’s] relations and behavior.” Id. at 15.
10 

Defendants argue Par 2, Don Jessop, and Jacob Barlow were not within the 

scope of the 2007 injunction. Don Jessop and Jacob Barlow were employees of 

Paragon and thus included under Rule 65(d)(2)(B). As to Par 2, the district court 

concluded that it was the instrumentality through which Paragon, Brian Jessop, and 

James Jessop sought to evade the 2007 injunction and that it acted in active concert 

or participation with them. We do not discern any error in the district court’s 

conclusions. To the contrary, we agree that the record clearly and convincingly 

establishes Par 2 operated as a disguised continuance of Paragon. As the facts 

described above demonstrate, Par 2 simply picked up Paragon’s operations. 

Particularly noteworthy is evidence showing that a contractor believed Paragon had 

simply changed its name to Par 2. It is also clear that the purpose of this transition 

was to evade compliance with the 2007 injunction. Don Jessop incorporated Par 2 

while Paragon was involved in a subpoena dispute with DOL related to the 2007 

injunction. Brian Jessop and Don Jessop attempted to conceal Brian Jessop’s 

involvement with Par 2. And Par 2 altered documents submitted to DOL to remove 

Brian Jessop’s name.3

 3

 Defendants object to the district court’s application of the “MacMillan 

factors,” a set of criteria we have used in determining whether a Title VII order binds 

a successor, see Trujillo v. Longhorn Mfg. Co., 694 F.2d 221, 225 (10th Cir. 1982). 

Because we conclude Par 2 falls within the scope of the 2007 injunction under Rule 

65(d), we do not need to address its application of those factors. See Regal Knitwear, 

324 U.S. at 14 (holding “successors and assigns” are liable for contempt if they are 

properly within the scope of the injunction under Rule 65(d)). Although the test 

under Rule 65(d) overlaps to some degree with the MacMillan analysis, we do not 

decide whether Par 2 is a successor to Paragon under the MacMillan factors. 
Turning to whether the parties had notice of the injunction, we agree with the 

district court that Par 2 had actual notice. Par 2, like any corporate entity, “acquire[s] 

knowledge only through its officers and agents.” Bergeson v. Life Ins. Corp. of Am., 

265 F.2d 227, 232 (10th Cir. 1959). Brian Jessop, an agent of Par 2, was a party 

bound by the injunction and had actual knowledge of it. With respect to Don Jessop 

and Jacob Barlow, we cannot say the district court clearly erred in finding they had 

actual notice of the 2007 injunction. As the district court noted, Don Jessop was a 

director at Paragon when the injunction was entered and facilitated the transfer of 

operations from Paragon to Par 2. Jacob Barlow served as Paragon’s office manager 

and assisted in gathering documents for the DOL’s subpoena in 2013, which was 

related to the injunction. The court permissibly found incredible the men’s denials of 

knowledge of the injunction. 

III

AFFIRMED. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge