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$H:\WP\08-15814 Whicker Order on Motion to Avoid Judicial Lien.wpd$

Case 3:05-bk-38518 Doc 91 Filed 06/25/10 Entered 06/25/10 11:57:42 Desc Main Document Page 6 of 20 2000) (Section 105 undoubtedly vests bankruptcy courts with statutory contempt powers, but it "does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law . . . ." (citations omitted)). While Lassiter does not specify what type of contempt he is pursuing, it appears that he wants the court to hold Moser in civil contempt of orders entered on September 2, 2009 and November 3, 2009 (Docs. 57 and 70). Contempt can be civil or criminal. Whether a particular proceeding is one of civil or criminal contempt depends upon the purpose of the proceeding and the potential sanction to be imposed if contempt is found. The purpose of a criminal contempt proceeding “is punitive ‐‐ ‘to vindicate the authority of the court.’” United States v. Bayshore Assocs., Inc., 934 F.2d 1391, 1400 (6th Cir. 1991), citing Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441 (1911). Conversely, the purpose of civil contempt is “to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” Id. See also Glover v. Johnson, 199 F.3d 310, 313 (6th Cir. 1999). In his prayer for relief Lassiter requests, among other relief, “[t]hat Joseph H. Moser be ordered to pay to Christo Lassiter an amount equal to or greater than the $5,137.50 plus statutory interest awarded to him by the bankruptcy court” and “[t]hat all documents purporting to cite, quote, or otherwise refer to the sealed document filed in this Court be sealed or appropriately redacted.” Contempt Motion, p. 11. Thus, the purpose of this proceeding is to coerce Moser into compliance with this court’s orders and to compensate Lassiter for losses he has sustained. Therefore, it is civil and not criminal in nature. In order to prevail in a civil contempt proceeding, the moving party must establish by clear and convincing evidence that the respondent violated a prior court order. Liberte 6
Case 3:05-bk-38518 Doc 91 Filed 06/25/10 Entered 06/25/10 11:57:42 Desc Main Document Page 7 of 20 Capital Group, LLC v. Capwill, 462 F.3d 543, 550‐51 (6th Cir. 2006); Glover, 199 F.3d at 707. The order alleged to have been violated must be “clear and unambiguous” and the movant must establish 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.” Liberte, 462 F.3d at 550. The purpose of an order under § 107(b)(2), such as the orders in question, is to “protect a person with respect to scandalous or defamatory matter contained in a paper filed in a case under this title.” 11 U.S.C. § 107(b)(2). BR 9018 implements § 107(b)(2) by providing that “the court may make any order which justice requires . . . (2) to protect any entity against scandalous or defamatory matter contained in any paper filed in a case under the Code[.]” The court determined that the Restricted Letter that Moser referenced in the BAP Brief, in addition to a number of other exhibits filed in support of, or in opposition to, Moser’s and Dullaghan’s motions requesting the court to find that Lassiter violated Dullaghan’s bankruptcy stay and Moser’s and Dullaghan’s discharge injunctions, was “scandalous” within the meaning of § 107(b)(2) “[b]ecause the parties agree that these documents are irrelevant and have withdrawn those exhibits, many of these documents contain personal information for which the public has no legitimate need for access, and the documents contain material that could be harmful to the parties’ reputations[.]” § 107 Decision, Doc. 56, p. 33. Accordingly, the court ordered the letter restricted from public access. Specifically, the court found and ordered that: In accordance with the simultaneously filed Decision on Christo Lassiter’s Motion to Seal and Motions to Strike Records in Cases and Adversary 7
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