*1 THIS CAUSE is before the Court on Plaintiffs’ Motion for Contempt and Sanctions (“Motion for Contempt,” Doc. 166) against Defendants Transfer for You LLC,[1] Allied Solution Group, LLC, JJ Midwest Marketing LLC, JJ&C Marketing LLC, The Mid-West Transfer, LLC, Midwest Transfers LLC, and Josh Ungaro (collectively, “Defendants”).[2] Defendants are represented by counsel David Anthony Wilson. For the reasons stated herein, the Motion for Contempt will be granted in part.

I. Background

The events leading up to the Motion for Contempt began on March 1, 2019, when Plaintiffs served the Defendants with a First Request for Production (Doc. 157-1). Defendants did not serve responses or produce any documents. (“Discovery Order,” Doc. 163, at 2). On August 5, 2019, Plaintiffs filed a Motion to Compel Discovery (Doc. 157). Defendants did not file a response, and the Court deemed the motion as unopposed. (Doc. 163 at 2). The Court granted the motion and ordered Defendants to produce responsive documents on or before September 25, 2019. (Id.). The Court also directed the parties to confer and agree on an amount of attorney’s costs and fees to be paid to Plaintiffs for the Motion to Compel, and if the parties could not agree, the Court directed Plaintiffs to file a motion addressing the same. (Id. at 3). The parties agreed, and the Court awarded attorney’s fees to Plaintiffs in the amount of $2,000. (Oct. 15, 2019 Order, Doc. 168, at 2).

On October 5, 2019, Defendants filed a “Motion for Protection” (Doc. 165), requesting that no filing deadlines or other hearings be scheduled in this case during a six-week period during which Defendants’ counsel was expected to be engaged in a trial in another case. (Id. at 2). The Court denied the Motion for Protection and advised Defendants’ counsel that he could notify Plaintiffs of the schedule conflict and request an accommodation but that any request to move a deadline scheduled by the Court would require a motion to be filed. (Oct. 23, 2019 Order, Doc. 170, at 2–3).

Plaintiffs filed their Motion for Contempt on October 8, 2019, alleging that Defendants’ production was untimely and incomplete, in violation of the Court’s Discovery Order. (See generally Doc. 166). Defendants did not file a response. (Oct. 31, 2019 Report and Recommendation (“R&R”), Doc. 172, at 2). United States Magistrate Judge Gregory J. Kelly issued an R&R (“First R&R”) in which he made recommendations regarding the Motion for Contempt based on Defendants’ failure to file a response. (Id. at 2, 6). Defendants then filed an Objection to the First R&R (Doc. 173). The Court accepted the Objections as an untimely response to the Motion for Contempt and referred the motion back to the Magistrate Judge for reconsideration in light of the response. (Nov. 26, 2019 Order, Doc. 178, at 2).

*2 United States Magistrate Judge Thomas B. Smith[3] held a hearing on the motion, (Feb. 4, 2020 Min. Entry, Doc. 185), and issued a new Report and Recommendation (“Second R&R,” Doc. 186) in which he certified facts[4] for this Court’s consideration and recommended that this Court hold an evidentiary hearing to determine whether Defendants should be adjudged in contempt. (Id. at 7). Specifically, Magistrate Judge Smith found that Defendants were still in violation of the Court’s Discovery Order, which required Defendants to produce responsive documents on or before September 25, 2019. (Doc. 163 at 2). At the time of the hearing, Defendants had failed to produce: their tax returns for 2017 and 2018,[5] responsive emails in native format,[6] documents related to websites and online advertising,[7] and responsive bank records in their possession or control. (Doc. 186 at 4). Defendants did not dispute that they failed to provide this information. (Id. at 4–5). Nor did Defendants object to producing it. (Id. at 5). However, Defendants’ counsel “suggest[ed] his clients may not have comprehended all that was required of them,” and asserted that any violation of the Discovery Order was not intentional. (Id.).

This Court adopted and confirmed the R&R and set the matter for hearing on March 13, 2020. (Feb. 28, 2020 Order, Doc. 188, at 2–3; “Contempt Hearing,” Min. Entry, Doc. 192). Two days prior to the Contempt Hearing, Defendants filed a Notice of Compliance (Doc. 190) indicating that they had now fully complied with the Court’s Discovery Order—nearly six months after the Court’s Order and a year after being served with the discovery requests—by providing all of the requested documents to Plaintiffs “with the exception of two years’ worth of tax returns that have not yet been prepared.” (Id. at 2). However, at the Contempt Hearing, counsel for Defendants provided slightly different information, stating that requested bank statements were still outstanding and were anticipated to be produced shortly. At the hearing, the Court also directed Plaintiffs to file an accounting of attorney’s fees and costs incurred as a result of the Motion for Contempt, which Plaintiffs thereafter filed.[8] (See generally Leger Aff., Doc. 196-1).

Plaintiffs move for sanctions pursuant to Federal Rule of Civil Procedure 37(b). Plaintiffs specifically request that the Court hold Defendants in contempt and impose a per diem fine[9] for every day that “Defendants continue to fail to fully comply with this Court’s September 18, 2019 Order.” (Doc. 166 at 9). Plaintiffs also request an award of reasonable costs and attorney’s fees associated with bringing the instant Motion for Contempt.

II. Legal Standard

A. Rule 37(b)

Rule 37(b) “authorizes a panoply of sanctions” for a party’s failure to comply with a discovery order. Smith v. Sohaan Dev. Inc., No. 6:12-cv-1369-Orl-18DAB, 2013 U.S. Dist. LEXIS 150849, at *4 (M.D. Fla. Oct. 1, 2013). One of the available sanctions is “treating [the violation] as contempt of court.” Fed. R. Civ. P. 37(b)(2)(A)(vii). “Additionally, Rule 37(b)(2) provides that courts shall require the party and/or the attorney advising the party that failed to comply with the court’s discovery order to pay all reasonable expenses, including attorney fees, unless substantial justification is shown for failure to comply.” Baratta v. Homeland Housewares, L.L.C., No. 05-60187-CIV, 2011 U.S. Dist. LEXIS 161550, at *31 (S.D. Fla. July 26, 2011). “[D]iscovery conduct should be found ‘substantially justified’ under Rule 37 if it is a response to a ‘genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ” DeVaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).

B. Civil Contempt

*3 A “party moving for contempt bears the burden of establishing by ‘clear and convincing’ evidence [that]: (1) the allegedly violated order was valid and lawful; (2) the order was clear, definite, and unambiguous; and (3) the alleged contemn[o]r had the ability to comply with the order.” United States v. Bosset, No. 8:07-cv-947-T-17MSS, 2008 U.S. Dist. LEXIS 48568, at *5 (M.D. Fla. May 15, 2008) (citing Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990); McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000)). “Once the moving party makes a prima facie showing that the other party violated the court’s discovery order, the non-moving party must prove that it was impossible to comply in order to avoid sanctions.” Brauchle v. S. Sports Grill, Inc., No. 07-80279-CIV-MARRA/JOHNSON, 2008 U.S. Dist. LEXIS 114406, at *2–3 (S.D. Fla. Oct. 26, 2008) (citing In re Chase & Sanborn Corp., 872 F.2d 397, 400 (11th Cir.1989); United States v. Rylander, 460 U.S. 752, 756–57, 103 S. Ct. 1548 (1983)). If the non-moving party demonstrates impossibility, through more than mere assertions, the burden then shifts back to the moving party, who “retains the ultimate burden of proof.” Id. (quoting Combs v. Ryan’s Coal Co., 785 F.2d 970, 984 (11th Cir. 1986)).

C. Contempt Sanctions

Upon a finding of civil contempt pursuant to Rule 37, a court has “broad, yet not unbridled, discretion in imposing sanctions.” Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1305 (11th Cir. 1991) (quoting Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510 (11th Cir.1986). “The court’s discretion, however, ‘must stay within the bounds of due process.’ ” Id. at 1304 (quoting Mercer v. Mitchell, 908 F.2d 763, 766 (11th Cir.1990)). And, “the sanctions cannot be any greater than necessary to ensure such compliance.” Id. (citing Mercer, 908 F.2d at 768 n.9). Among the options available to a district court include: “a coercive daily fine, a compensatory fine, attorney’s fees and expenses ..., and coercive incarceration.” Id. (citing cases). Regarding the possibility of daily fines, “civil contempt fines can take the form of per diem fines imposed for each day a contemnor fails to comply with an affirmative court order, or of fixed fines imposed and suspended pending future compliance.” Friedman v. Schiano, No. 16-cv-81975-BLOOM/Valle, 2017 U.S. Dist. LEXIS 226819, at *6 (S.D. Fla. Mar. 21, 2017).

III. Analysis

Based on the record, the facts certified by Judge Smith, and the information presented during the Contempt Hearing, Plaintiffs have demonstrated a prima facie case of Defendants’ civil contempt. Bosset, 2008 U.S. Dist. LEXIS 48568, at *5. The Discovery Order was valid and lawful; it was clear definite, and unambiguous; and Defendants had the ability to comply with the order. Id. Furthermore, Defendants have not demonstrated that it was impossible to have complied with the Discovery Order. Brauchle, 2008 U.S. Dist. LEXIS 114406, at *2–3. This is evidenced by Defendants’ Notice of Compliance filed just two days shy of the Contempt Hearing. This notice, if to be taken at face value, indicates that Defendants could have complied all along and simply chose not to. Additionally, after filing the Notice of Compliance, indicating full compliance with the exception of tax returns, counsel for Defendants represented at the Contempt Hearing that bank records to be produced were actually still outstanding. Defendants were not entirely forthcoming in their notice.

While civil contempt is a harsh penalty, it is appropriate where previous attempts to obtain compliance have been unavailing. Citronelle, 943 F.2d at 1304. Here, the Court’s Discovery Order “taxed attorney’s fees and costs against ... Defendants for failing to produce the requested information. The award of attorney’s fees and costs, and the possibility of a per diem fine being imposed against ... Defendants failed to motivate them to produce the requested information.” (Doc. 186 at 6 (citations omitted)). “Even Judge Kelly’s Report and Recommendation recommending that [Defendants] be held in contempt ... failed to motivate [them] to produce the requested information.” (Id.). Indeed, it appears that only upon setting the matter for the Contempt Hearing did Defendants finally comply with the Court’s Discovery Order, albeit not as fully as they represented. (See Doc. 190). However, the Court recognizes that in exercising its considerable discretion to issue sanctions and find civil contempt, it “must stay within the bounds of due process.” Citronelle, 943 F.2d at 1304 (internal quotation omitted). And the sanctions fashioned must not “be any greater than necessary to ensure such compliance.” Id. (citation omitted). Now that Defendants have complied with the Court’s Discovery Order, a finding of civil contempt or per diem fine appear to be more than necessary to move this case forward. Thus, the Court will decline to find Defendants in civil contempt as it is unnecessary to gain compliance. Id.

*4 However, the Court will award reasonable attorney’s fees and costs to Plaintiffs pursuant to Rule 37(b)(2) because Defendants have not demonstrated substantial justification for failure to comply. Baratta, 2011 U.S. Dist. LEXIS 161550, at *31 (citing Fed. R. Civ. P. 37(b)(2)). Plaintiffs have requested a total of $5,141.50 in attorney’s fees. (Doc. 196-1). As documented in Plaintiffs’ counsels’ billing records filed with the Court, (Doc. Nos. 174, 174-1, 196-1), the Court finds the rates and hours charged and the total fees charged to be reasonable.

Thus, the only remaining issue is whether Defendants or their counsel should be responsible for paying the sanctions. Based on the record, it appears Defendants’ counsel is responsible for defying the Discovery Order and not Defendants. That is, counsel for Defendants stated at the Contempt Hearing that “I don’t believe that this is necessarily a client issue” and that “[m]y client ... tried to comply as much as possible” but produced documents in the wrong format. Counsel is responsible for his clients’ failure to provide documents in the correct format and failure to correct the issue in a timely manner. DeVaney, 989 F.2d at 1162 (“[W]hen an attorney advises a client in discovery matters, he assumes a responsibility for the professional disposition of that portion of a lawsuit and may be held accountable for positions taken or responses filed during that process.”). Indeed, “[s]anctions exist, in part, to remind attorneys that service to their clients must coexist with their responsibilities toward the court, toward the law and toward their brethren at the bar.” Id. Further, counsel for Defendants failed to respond to both the Motion to Compel Discovery and the Motion for Contempt. Thus, it is appropriate that the monetary sanctions be levied solely against counsel for Defendants and not against Defendants. Id. (“Rule 37 identifies attorneys advising, or overseeing, discovery as possible subjects of sanctions along with their clients and vests the trial court with broad discretion to apportion fault between them, providing in ... subsection (b)(2) that the award of expenses or costs may be demanded of a party, or its attorney, or both.”).

IV. Conclusion

In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:

DONE and ORDERED in Orlando, Florida on April 2, 2020.