Cromer v. Kraft Foods North America, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DONALD G. CROMER, 
Plaintiff-Appellant,
v.
KRAFT FOODS NORTH AMERICA,
INCORPORATED,
Defendant-Appellee.  No. 02-1646
GEORGETOWN UNIVERSITY LAW
CENTER, Appellate Litigation
Program,
Amicus Supporting Appellant.

DONALD G. CROMER, 
Plaintiff-Appellant,
v.
KRAFT FOODS, INCORPORATED,
Defendant-Appellee.
 No. 02-1795
GEORGETOWN UNIVERSITY LAW
CENTER, Appellate Litigation
Program,
Amicus Supporting Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Carl Horn, III, Magistrate Judge.
(CA-97-594-H)
2 CROMER v. KRAFT FOODS NORTH AMERICA, INC.
Argued: September 28, 2004
Decided: December 8, 2004
Before MICHAEL and MOTZ, Circuit Judges, and
Henry E. HUDSON, United States District Judge
for the Eastern District of Virginia,
sitting by designation.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Motz wrote the opinion, in which Judge Michael and Judge
Hudson joined.
COUNSEL
ARGUED: Alistair Elizabeth Newbern, GEORGETOWN UNIVER-
SITY LAW CENTER, Appellate Litigation Program, Washington,
D.C., for Amicus Supporting Appellant. Donald G. Cromer, Green-
ville, South Carolina, Appellant Pro Se. Christy E. Phanthavong,
BRYAN CAVE, L.L.P., Chicago, Illinois, for Appellee. ON BRIEF:
Steven H. Goldblatt, Director, Matthew B. Archer-Beck, Varu
Chilakamarri, Student Counsel, GEORGETOWN UNIVERSITY
LAW CENTER, Appellate Litigation Program, Washington, D.C., for
Amicus Supporting Appellant. Timothy C. Klenk, BRYAN CAVE,
L.L.P., Chicago, Illinois; Joel H. Spitz, MCGUIREWOODS, L.L.P.,
Chicago, Illinois, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Donald G. Cromer appeals the district court’s denial of his Rule
60(b) motion, as well as an order imposing upon him a prefiling
injunction and finding him in criminal and civil contempt. We affirm
the Rule 60(b) ruling, but vacate the prefiling injunction and contempt
CROMER v. KRAFT FOODS NORTH AMERICA, INC. 3
findings, and remand for further proceedings consistent with this
opinion.
I.
After Cromer filed an employment discrimination action against
his then-employer, Kraft Foods, Inc., the parties agreed to proceed
before a United States magistrate judge and further agreed that the
matter was "appropriate for mediation." On October 5, 1999, follow-
ing mediation at which each side was represented by counsel, the par-
ties entered into a settlement agreement.
Two days later, Cromer filed a "motion to dismiss" that agreement.1
In a December 10, 1999 order, the magistrate judge denied Cromer’s
motion and ordered the parties to comply with the settlement agree-
ment. Cromer appealed this order.
While his appeal was pending, Cromer filed a "motion for relief
from judgment . . . entered 12/10/99." On February 22, 2000, the
magistrate judge denied this motion, calling it "largely incomprehen-
sible," and ordered Cromer to "CEASE FILING MOTIONS OR
OTHER DOCUMENTS IN THIS CASE in this Court." The judge
also warned Cromer that "further filing of motions or documents in
this case, after being directed to cease filing . . . may subject [you]
to financial or other sanctions." In spite of this warning, Cromer filed
a Rule 60(b) motion contesting the magistrate’s December 10, 1999
and February 22, 2000 orders. On May 2, 2000, the magistrate judge
denied the Rule 60(b) motion and again cautioned Cromer that "the
filing of frivolous motions in this court may result in the imposition
of monetary and/or other sanctions." Cromer promptly noted an
appeal of that order. On August 2, 2000, after consolidating this
appeal with his earlier appeal, we affirmed in both cases. Cromer v.
1
Like all of his motions filed after October 5, 1999, Cromer filed this
motion pro se. On October 12, 1999, shortly after Cromer filed his first
"motion to dismiss" the mediation agreement, counsel who had repre-
sented Cromer at the mediation moved to withdraw as counsel; on Febru-
ary 29, 2000, after having initially denied it, the magistrate judge granted
the withdrawal motion.
4 CROMER v. KRAFT FOODS NORTH AMERICA, INC.
Kraft Foods, Inc., 225 F.3d 653 (table), 2000 WL 1059083 (4th Cir.
2000) (per curiam) (unpublished).
On February 28, 2001, the magistrate judge denied a set of motions
that Cromer had filed over a year before. The magistrate judge
explained that he had "overlooked" these motions, and for this reason,
failed to rule on them, but that they were "no more meritorious than
previous ones in this matter." The magistrate judge denied Cromer’s
motion to reconsider this ruling; Cromer appealed, and on October 1,
2001, we affirmed. Cromer v. Kraft Foods, Inc., 19 Fed. Appx. 147,
2001 WL 1159610 (4th Cir. 2001) (per curiam) (unpublished).
On March 25, 2002, Cromer filed a "motion for relief from judg-
ment entered 12/10/99 pursuant to Rule 60(b)(4) and (6)." On April
25, 2002, the magistrate judge denied this motion, warning Cromer
that "the filing of any further frivolous motions will result in the
imposition of SANCTIONS." Four days later, on April 29, 2002, Cro-
mer filed a motion for reconsideration of the April 25 order, as well
as motions for change of venue, disqualification of the magistrate
judge, and clarification of the April 25 order.
On May 22, 2002, the magistrate judge denied these motions and
ordered Cromer to appear on June 20, 2002 to show cause why he
should not be held in contempt. The judge warned Cromer that he
should "be prepared to pay a civil sanction or criminal fine up to
$5,000," and, that if found guilty of criminal contempt, he could be
incarcerated for up to 30 days.
Cromer appeared as directed before the magistrate judge. Cromer
protested his good faith and emphasized his status as a pro se litigant.
He told the magistrate judge that, at some point after having been
warned by the judge not to file additional motions, he asked a clerk
of this court if he could file an additional motion in the district court
and was informed that, unless enjoined from doing so, he could.
Although the magistrate judge apparently gave some credence to this
account, the judge nonetheless found Cromer in contempt for his
"knowing and continued disobedience."
The magistrate judge then imposed: (1) "criminal sanctions" in the
form of "incarceration for the remainder of the day of the hearing"
CROMER v. KRAFT FOODS NORTH AMERICA, INC. 5
(which amounted to approximately 90 minutes imprisonment), a fine
of $1,500, and a special assessment of $10; (2) a "civil sanction" in
the form of $1,500 for defendant’s attorneys’ fees; and (3) a prefiling
injunction enjoining Cromer from making "any and all filings in this
case" and "any filing in any other, unrelated case [in the United States
District Court for the Western District of North Carolina] unless he
first . . . obtain[ed] permission to so file" from the magistrate judge.
Cromer timely appealed this order, as well as the orders denying
his Rule 60(b) motion.2 We consolidated these cases for consideration
on appeal.
II.
We first address the magistrate judge’s denial of Cromer’s Rule
60(b) motion. Rule 60(b) provides in relevant part: "On motion and
upon such terms as are just, the court may relieve a party . . . from
a final judgment, order, or proceeding for the following reasons:
. . . (4) the judgment is void . . . or; (6) any other reason justifying
relief from the operation of the judgment." Fed. R. Civ. P. 60(b). Cro-
mer sought relief under both subsections (b)(4) and (b)(6).
A judgment is not "void" under Rule 60(b)(4) merely because it is
erroneous. "It is void only if the court that rendered it lacked jurisdic-
tion of the subject matter, or of the parties, or if it acted in a manner
inconsistent with due process of law." Schwartz v. United States, 976
F.2d 213, 217 (4th Cir. 1992) (internal quotation marks and citation
omitted). Cromer does not proffer in his motion anything that would
entitle him to relief under that standard. Similarly, Cromer does not
offer "any other reason" in his motion that merits relief under Rule
60(b)(6) or warrants reopening a settlement agreement that he entered
into, with the aid of counsel, more than five years ago.
Rather, in his motion, Cromer simply argues once again that the
magistrate judge incorrectly enforced the settlement agreement. This
2
Cromer also timely appealed the denial of his April 29, 2002 motions
for change of venue, disqualification of the magistrate judge, and clarifi-
cation of the April 25 order; since he has failed to present any argument
on those issues on appeal, however, we do not consider them.
6 CROMER v. KRAFT FOODS NORTH AMERICA, INC.
provides no basis for Rule 60(b) relief. Accordingly, we affirm the
order denying Cromer’s Rule 60(b) motion.
III.
The imposition of the prefiling injunction, which we review for
abuse of discretion, De Long v. Hennessey, 912 F.2d 1144, 1146 (9th
Cir. 1990), presents more difficult questions. Undoubtedly, the All
Writs Act, 28 U.S.C. § 1651(a) (2000), grants federal courts the
authority to limit access to the courts by vexatious and repetitive liti-
gants like Cromer. E.g., In re Packer Ave. Assocs., 884 F.2d 745, 747
(3d Cir. 1989); see also 18 Wright, Miller & Cooper, Federal Prac-
tice and Procedure § 4405, at 117-18 (2d ed. 2002) ("Basic power to
protect the preclusive effects of a federal judgment by injunction may
well inhere in the very existence of federal courts. If a more definite
grant of general authority is needed, it can be found in the All Writs
Act.").
Such a drastic remedy must be used sparingly, however, consistent
with constitutional guarantees of due process of law and access to the
courts. U.S. Const. amend. XIV, § 1. These rights are longstanding
and of fundamental importance in our legal system. "The due process
clause requires that every man shall have the protection of his day in
court." Truax v. Corrigan, 257 U.S. 312, 332 (1921). And, the
Supreme Court has explained that the particular constitutional protec-
tion afforded by access to the courts is "the right conservative of all
other rights, and lies at the foundation of orderly government." Cham-
bers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907).
Thus, a judge should not in any way limit a litigant’s access to the
courts absent "exigent circumstances, such as a litigant’s continuous
abuse of the judicial process by filing meritless and repetitive
actions." Brow v. Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993).
Indeed, "use of such measures against a pro se plaintiff should be
approached with particular caution" and should "remain very much
the exception to the general rule of free access to the courts."
Pavilonis v. King, 626 F.2d 1075, 1079 (1st Cir. 1980).
In determining whether a prefiling injunction is substantively war-
ranted, a court must weigh all the relevant circumstances, including
CROMER v. KRAFT FOODS NORTH AMERICA, INC. 7
(1) the party’s history of litigation, in particular whether he has filed
vexatious, harassing, or duplicative lawsuits; (2) whether the party
had a good faith basis for pursuing the litigation, or simply intended
to harass; (3) the extent of the burden on the courts and other parties
resulting from the party’s filings; and (4) the adequacy of alternative
sanctions. See, e.g., Safir v. United States Lines, Inc., 792 F.2d 19, 24
(2d Cir. 1986); Green v. Warden, United States Penitentiary, 699
F.2d 364, 368-69, 370 n.8 (7th Cir. 1983); Pavilonis, 626 F.3d at
1078-79.
In this case, the magistrate judge did not enumerate or discuss these
factors. But the judge appears to have considered some of them. He
seems to have concluded that the first and third factors weighed
against Cromer, finding Cromer’s filings "frivolous," "tiresome,"
"wasteful of the court’s time," and "wasteful of the defendant’s
resources." Conversely, the magistrate judge suggested that the sec-
ond factor might weigh in Cromer’s favor, noting that given Cromer’s
conversation with a clerk of this court, Cromer might have had a good
faith basis for at least some of his filings. But it does not appear that
the judge considered the important fourth factor — the adequacy of
alternative sanctions. This omission gains particular significance here,
because it may well be that in this case, a finding of contempt would
have sufficed to deter Cromer from making future filings.
Moreover, even if a judge, after weighing the relevant factors,
properly determines that a litigant’s abusive conduct merits a prefiling
injunction, the judge must ensure that the injunction is narrowly tai-
lored to fit the specific circumstances at issue. Brow, 994 F.2d at
1038; De Long, 912 F.2d at 1148; Procup v. Strickland, 792 F.2d
1069, 1070, 1074 (11th Cir. 1986) (en banc); Safir, 792 F.2d at 25;
Castro v. United States, 775 F.2d 399, 410 (1st Cir. 1985). Absent
this narrowing, a prefiling injunction, like any other injunction, will
not survive appellate review. See, e.g., Virginia Soc’y for Human Life,
Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001).
For example, in Safir, the district court imposed a prefiling injunc-
tion against a litigant who had, over the course of approximately
twenty years, filed eleven federal court actions against the same
defendants for pricing practices engaged in during 1965 and 1966.
Safir v. United States Lines, Inc., 616 F. Supp. 613, 617 (E.D.N.Y.
8 CROMER v. KRAFT FOODS NORTH AMERICA, INC.
1985). The Second Circuit agreed that the litigant’s conduct war-
ranted a prefiling injunction. Safir, 792 F.2d at 25. But because the
injunction prohibited the litigant from making further filings in that
litigation (other than to seek appellate review) and "from instituting
any action whatsoever" in any related litigation, the appellate court
concluded that the challenged injunction could not stand. Id. The
injunction had to be narrowed to allow the litigant the option of filing
additional federal court actions, if granted permission to do so by the
district court. Id.
The prefiling injunction in the case at hand is even broader than the
one at issue in Safir. It not only enjoins Cromer from making "any
and all filings" in the present case; it also enjoins him from making
any future filings in any unrelated case in the United States District
Court for the Western District of North Carolina, without first obtain-
ing permission from the magistrate judge who issued the injunction.
This injunction is not "narrowly tailored to fit the particular cir-
cumstances of the case." Brow, 994 F.2d at 1038. Although Cromer
has certainly proved himself to be a "frequent filer" with respect to
his employment discrimination suit and resulting settlement agree-
ment, nothing in the record justified infringing upon his right to bring
suit in unrelated cases. Indeed, all of Cromer’s filings in the Western
District of North Carolina appear to have concerned his single case
against Kraft; the magistrate judge apparently believed a prefiling
injunction to be necessary because of Cromer’s "knowing and contin-
ued disobedience" of the orders in that case. A narrowly tailored
injunction, therefore, would address only filings in that or related
actions. Prohibiting Cromer from making any filings in any unrelated
suit does not address the problem at issue, and is therefore an over-
broad restriction.3
The first portion of the injunction, prohibiting Cromer from further
making "any and all filings in this case," presents a closer question.
3
Although the parties did not address the issue and we see no need to
decide it, we have doubts as to whether a magistrate judge has authority
to control the docket of the district court in the manner done here. See
28 U.S.C.A. § 636(c) (West 1993 & Supp. 2004) (providing powers of
United States magistrate judges).
CROMER v. KRAFT FOODS NORTH AMERICA, INC. 9
We sympathize with the magistrate judge, who repeatedly warned
Cromer to cease further filings. Nevertheless, imposing a categorical
ban on future filings in this case leaves no room for potentially meri-
torious filings, even ones so regarded by a district court. Accordingly,
the magistrate judge should consider on remand whether this portion
of the injunction should be narrowed.
We also note that before a judge issues a prefiling injunction under
28 U.S.C. § 1651(a), even a narrowly tailored one, he must afford a
litigant notice and an opportunity to be heard. See, e.g., Brow, 994
F.2d at 1038; De Long, 912 F.2d at 1147; In re Powell, 851 F.2d 427,
431 (D.C. Cir. 1988); In re Oliver, 682 F.2d 443, 444, 446 (3d Cir.
1982); In re Hartford Textile Corp., 613 F.2d 388, 390 (2d Cir. 1979).
It is not at all clear that the magistrate judge provided Cromer notice
of a possible prefiling injunction sufficient to "ensure" that Cromer
had "the opportunity to oppose the court’s order before it [wa]s insti-
tuted." Brow, 994 F.2d at 1038.
Unquestionably, the judge repeatedly cautioned Cromer that con-
tinued filing would result in the imposition of "sanctions." Moreover,
in the May 22, 2002 Order to Show Cause, the magistrate directed
Cromer "to appear . . . to show cause why he should not be held in
contempt," and warned him "to be prepared to pay a civil sanction or
criminal fine up to $5,000" and that he might be incarcerated. Thus,
the magistrate certainly provided Cromer with notice that he faced
civil and criminal contempt sanctions. However, the judge never indi-
cated that he might impose a prefiling injunction. Indeed, as the judge
told Cromer at the beginning of the June 20, 2002 contempt proceed-
ing, "The purpose of the hearing today is to give you an opportunity
to argue or to put on evidence to show why you should not be held
in contempt of this court." As a general matter, notice of a possible
finding of contempt will rarely provide adequate notice of a prefiling
injunction. A finding of contempt and a prefiling injunction constitute
distinct sanctions, inviting distinct defenses. Thus, an opportunity to
be heard on one will not satisfy the due process right to be heard on
the other. On remand, Cromer will of course have notice of the possi-
ble issuance of a prefiling injunction and he will have an opportunity
to be heard prior to the issuance of any injunction.
We recognize that judicial resources are in scarce supply. Meritori-
ous claims often take years to wend their way through our court sys-
10 CROMER v. KRAFT FOODS NORTH AMERICA, INC.
tem, in part because the judicial system is so overburdened.
Undoubtedly, the conduct of Cromer, and litigants like him, would
frustrate even the most patient. But a judge may restrict a right as fun-
damental as access to our courts only in limited circumstances and in
strict accordance with established protections. That was not done
here.
IV.
Finally, we turn to the question of whether the magistrate judge
properly imposed criminal and civil contempt sanctions. Cromer’s
assertedly contumacious behavior occurred outside of court and there-
fore triggers the procedural protections afforded in proceedings for
so-called "indirect" contempt; "direct" contempt, which occurs in the
court’s presence, may be punished summarily, and is thus not subject
to the same protections. See, e.g., Int’l Union, United Mine Workers
of America v. Bagwell, 512 U.S. 821, 827 n.2 (1994); United States
v. Neal, 101 F.3d 993, 997 (4th Cir. 1996). Our analysis in this case
applies only to situations involving "indirect" contempt.
A.
The Supreme Court has held that "[c]riminal contempt is a crime
in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968),
and that "criminal [contempt] penalties may not be imposed on some-
one who has not been afforded the protections that the Constitution
requires of such criminal proceedings, including the requirement that
the offense be proved beyond a reasonable doubt." Hicks v. Feiock,
485 U.S. 624, 632 (1988). For example, a person cannot be convicted
of criminal contempt without being informed of his right to counsel,
United States v. Johnson, 659 F.2d 415, 416-17 (4th Cir. 1981); Rich-
mond Black Police Officers Assoc. v. Richmond, 548 F.2d 123, 128
(4th Cir. 1977), and it is plain error for a judge to act as both prosecu-
tor and decision maker in a criminal contempt proceeding. See Neal,
101 F.3d at 995-99 (reversing criminal contempt conviction because
the district judge "improperly assumed a prosecutorial role").4 In sum,
4
As if to underscore this point, Fed. R. Crim. P. 42 was amended in
2002 to require a court to "request that the contempt be prosecuted by an
attorney for the government" and, "if the government declines the
request, the court must appoint another attorney to prosecute the con-
tempt." See Fed. R. Crim. P. 42(a)(2) & Advisory Committee Notes on
2002 amendments.
CROMER v. KRAFT FOODS NORTH AMERICA, INC. 11
"criminal contempt sanctions are entitled to full criminal process."
Bagwell, 512 U.S. at 833 (citing Hicks, 485 U.S. at 632).
A straightforward application of these principles requires us to
vacate Cromer’s criminal contempt conviction. First, the transcript of
the June 20, 2002 contempt proceeding reveals that the magistrate
judge did not adequately inform Cromer of his right to counsel.
Indeed, the subject was never addressed. Second, like the district
judge in Neal, 101 F.3d at 997-99, the magistrate here "improperly
assumed a prosecutorial role" by acting both as prosecutor and deci-
sion maker. He did not appoint an attorney for the government to
prosecute Cromer for criminal contempt; instead, he undertook to
prosecute Cromer himself, "to demonstrate that [the court] means
what it says." Cromer did not receive the "full criminal process" he
was due.
Moreover, the authorizing statute in effect at the time of the con-
tempt hearing did not allow punishment for contempt by fine and
imprisonment; it required a federal court to choose one or the other.
18 U.S.C. § 401 (2000) ("A court of the United States shall have
power to punish by fine or imprisonment, at its discretion, such con-
tempt of its authority . . . .") (emphasis added); United States v. Haw-
kins, 76 F.3d 545, 550 (4th Cir. 1996) ("[T]he disjunctive language
of 18 U.S.C. § 401 precludes both imprisonment and a fine for a sin-
gle offense."); see also 28 U.S.C. § 636(e)(3)(2000) ("In any case in
which a United States magistrate judge presides with the consent of
the parties . . . the magistrate judge shall have the power to punish,
by fine or imprisonment, criminal contempt . . . .") (emphasis added).5
The punishment the magistrate imposed on Cromer — imprisonment
for the remainder of the day of his hearing and a fine of $1,500 —
thus violated the applicable provisions of federal law in effect at that
time.
Therefore, we must vacate the judgment of criminal contempt.
5
In November 2002, Congress amended 18 U.S.C. § 401 and 28
U.S.C. § 636(e)(3) to allow punishment for contempt by "fine or impris-
onment, or both." See Pub. L. No. 107-273, § 3002(a)(1), (b)(2), 116
Stat. 1758, 1805 (2002).
12 CROMER v. KRAFT FOODS NORTH AMERICA, INC.
B.
A court may impose sanctions for civil contempt "to coerce obedi-
ence to a court order or to compensate the complainant for losses sus-
tained as a result of the contumacy." In re General Motors Corp., 61
F.3d 256, 258 (4th Cir. 1995) (internal quotation marks and citation
omitted). Imposition of civil contempt sanctions requires fewer proce-
dural protections than those necessary for the imposition of criminal
contempt sanctions. See Bagwell, 512 U.S. 830-31. For example,
unlike a finding of criminal contempt, which must rest on proof of
guilt beyond a reasonable doubt, a finding of civil contempt can be
established by "clear and convincing evidence." See Ashcraft v. Con-
oco, Inc., 218 F.3d 288, 301 (4th Cir. 2000); 11A Wright, Miller &
Kane, Federal Practice and Procedure § 2960, at 380 (2d ed. 1995).
Similarly, because they are civil, not criminal, proceedings, the right
to counsel is not guaranteed in civil contempt proceedings.
But "[a] district court’s description of a contempt sanction as either
civil or criminal is not determinative and must be scrutinized indepen-
dently by the appellate court." Buffington v. Baltimore County, 913
F.2d 113, 133 (4th Cir. 1990). Accordingly, we must decide for our-
selves, regardless of how it was labeled below, whether the $1,500
attorneys’ fees award imposed on Cromer was in fact a criminal con-
tempt sanction. See Bradley v. American Household, Inc., 378 F.3d
373, 377 (4th Cir. 2004).
The Supreme Court has explained that the "critical features" for
determining whether a contempt remedy is civil or criminal "are the
substance of the proceeding and the character of the relief that the
proceeding will afford." Hicks, 485 U.S. at 631.
When the nature of the relief and the purpose for which the
contempt sanction is imposed is remedial and intended to
coerce the contemnor into compliance with court orders or
to compensate the complainant for losses sustained, the con-
tempt is civil; if, on the other hand, the relief seeks to vindi-
cate the authority of the court by punishing the contemnor
and deterring future litigants’ misconduct, the contempt is
criminal.
CROMER v. KRAFT FOODS NORTH AMERICA, INC. 13
Buffington, 913 F.2d at 133; see also Hicks, 485 U.S. at 631; Bradley,
378 F.3d at 378. For these reasons, putatively civil contempt sanc-
tions will be held to be criminal sanctions in cases when the fines
were "not conditioned on compliance with a court order," "not tai-
lored to compensate the complaining party," but instead "initiated to
vindicate the authority of the court and to punish the actions of the
alleged contemnor[ ]." Bradley, 378 F.3d at 377-79; Buffington, 913
F.2d at 133-35.
In this case, in addition to finding Cromer guilty of criminal con-
tempt, the magistrate judge imposed a "civil" sanction of $1,500 to
compensate Kraft for attorneys’ fees "proximately caused by [Cro-
mer’s] defiance of" the magistrate’s orders. As in Bradley and Buf-
fington, despite its label, this is a criminal contempt sanction: it was
meant primarily "to vindicate the authority of the court."
The magistrate judge did not condition this "civil" sanction on
compliance with a court order. Nor did the judge tailor the sanction
to compensate the complaining party. In fact, he took it upon himself
to award Kraft attorneys’ fees without any indication that Kraft
sought such a remedy. In other words, the "civil sanction" could not
have been designed "to compensate the complainant for losses sus-
tained" because there was no "complainant" — other than the judge
himself.
Moreover, the record demonstrates that the magistrate clearly
intended to punish Cromer through imposition of the attorneys’ fees
award. Of course, civil contempt sanctions can serve the purpose of
compensating a complainant for losses sustained, and we have recog-
nized attorneys’ fees as appropriate compensation. General Motors,
61 F.3d at 259-60. But in this case, the judge’s stated reasons for the
sanction belie any conclusion that it was remedial in nature. As he
explained in his Order to Show Cause, "[I]t is now time to demon-
strate that [the court] means what it says." Even more telling, at the
contempt hearing itself, the judge told Cromer, "[Y]ou need to have
some consequences for your obsessive compulsive behavior in this
court, . . . you need to know this is serious business filing this mess
in our court after being ordered not to." These statements make clear
14 CROMER v. KRAFT FOODS NORTH AMERICA, INC.
that the court imposed the attorneys’ fees award to punish Cromer and
vindicate the court’s authority rather than to compensate Kraft.6
Because the "civil" sanction requiring Cromer to pay $1,500 in
attorneys’ fees was actually criminal in nature, it could be imposed
only after affording Cromer "full criminal process." Thus, we must
vacate it for the same reason we vacate Cromer’s criminal contempt
conviction: the judge imposed the sanction without the procedural
safeguards necessary prior to the imposition of criminal penalties.
V.
For the reasons stated above, we affirm the district court’s denial
of Cromer’s Rule 60(b) motion, but vacate the prefiling injunction
and contempt findings, and remand for further proceedings consistent
with this opinion.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
6
In both Bradley and Buffington, we also noted that the fines were pay-
able to the court, rather than to the complaining party. Here the magis-
trate judge directed Cromer to pay the attorneys’ fees award to Kraft, not
to the court. Nevertheless, as explained in the above text, this award
could not have been designed to compensate the "complainant," since the
judge himself instituted the proceeding; Kraft never requested fees and
was, by its own account, "essentially disinterested" in the contempt
award. Brief of Appellant at 25.