OPINION & ORDER
With an unsatisfied judgment against Respondent Offshore Exploration and Production, LLC (“Offshore”), Petitioner Eco-petrol S.A. (“Ecopetrol’’) moves, by order to show cause, for an order of contempt against Offshore and William M. Kallop, Offshore’s principal. For the following reasons, the motion is denied.
The Court has already set forth the facts and the procedural background of this case in its prior opinions, see Ecopetrol S.A. v. Offshore Expl. & Prod. LLC,
In 2009, Ecopetrol and Korea National Oil Corporation (“KNOC,” collectively the “purchasers”) purchased Offshore International Group, Inc. and its subsidiaries from Offshore.. One of those subsidiaries, Savia Peru S.A. (“Savia”), was then facing Peruvian Value Added Tax (“VAT”) assessments of around $75,000,000. Offshore,
The purchasers then sought in arbitration reimbursement from Offshore for the VAT assessments that Savia had paid. On April 16, 2013, the arbitrators issued an “Interim Award” in the purchasers’ favor, ordering Offshore to reimburse the Ecope-trol parties for the tax assessment by May 28, 2013. (Ware Aff. Ex. C, Ex. D.) On December 1, 2013, the arbitrators issued a “Supplemental Interim Award,” which required Offshore to make the reimbursement to the purchasers from its own funds, rather than from an escrow account (the “financial escrow account”) that had been created as security for' indemhification claims by the purchasers against Offshore. (Ware Aff. Ex. D.) As of January, 31, 2016, the amount remaining in the financial escrow account was $102,359,191.02. (Pet’r’s-Letter, EOF No. 111-5.) The purchasers maintain that they have substantial claims against Offshore in.excess- of the amount of that escrow account.
On September 10, 2014, this Court confirmed the Interim Award and the Supplemental Interim Award. See Offshore,
On May 15, 2015, about eight months after the Judgment was entered, Offshore received from Ecopetrol (1) a demand letter requesting one half of the Supplemental Interim Award. (Orta Deck Ex. 1), (2) post-judgment interrogatories, (id. Ex. 10), and (3) a request for documents in aid of judgment and execution, (id. Ex. 11.) On May 29, 2015, Ecopetrol moved, by order to show cause, for the Court to hold Offshore and Kallop in civil contempt for their failure to comply with this Court’s Judgment, entered in September, 2014.
Also on May 29, 2015, an arbitration panel issued a Partial Final Award that denied the purchasers’ last remaining claim against Offshore concerning - undisclosed environmental losses, (Orta Deck Ex. 4 at 96-97.) Pursuant to the First Amendment to the Stock Purchase Agreement among Ecopetrol, Offshore, and KNOC, Offshore had deposited $50,000,000 in a second escrow account (the “supplemental escrow account”) to be applied to claims that resulted from undisclosed environmental losses. (Orta Deck Ex. 5.)
In the same Partial Final Award, the arbitration panel required the purchasers to return to Offshore the reimbursements from the Peruvian Government for part of the VAT assessments. (Orta Deck Ex. 4 at 95-96, ECF No. 60) As of February 26, 2016, the purchasers had received approximately $31 million in VAT reimburse
Qn June 30, 2015, the Clerk of Court entered a certificate of default against Kal-lop. (ECF No. 73.) On July 10, 2015, Kallop moved to vacate the certificate of default. (ECF No. 86.) On July 13, 2015, the Court granted the motion and vacated the certificate of default. (ECF No. 87.) Kallop subsequently filed opposition papers against Ecopetrol’s motion for contempt.
II.
A.
For its motioii for contempt, Eco-petrol relies on Rule 70(e) of the Federal Rule of Civil Procedure, which provides a remedy of contempt if a party fails to comply with a judgment requiring the performance of a specific act.
“Ordinarily, the equitable remedies provided under Rule 70 are not appropriate in enforcing a money judgment.” Spain v. Mountanos,
The Judgment in this case confirmed an interim arbitral award,-which required Offshore to pay a sum certain to the petitioners within 30 days of the issuance of the award, and a supplemental award, which clarified that a payment from the indemnification escrow account would not satisfy the interim award. (Ware Aff. Ex. A, Ex. C., Ex. D.) “[T-]he confirmation of an arbitration award ... makes what is already a final arbitration award a judgment of the court.” Florasynth, Inc. v. Pickholz,
In the context of Rule 69, the Tenth Circuit Court of Appeals defined a money judgment as consisting of “two elements: (1) an identification of the parties for and against whom judgment is being entered, and (2) a definite and certain designation of the amount which plaintiff is owed by defendant.” Fox v. Nat'l Oilwell Varco,
It is plain that the Judgment in this case consists of these two elements. It clearly and unambiguously entered judgment for the purchasers against Offshore. See Offshore,
“Almost invariably ... suits seeking (whether by judgment, injunction, or declaration) to compel the defendant to pay a sum of money to the plaintiff are suits for ‘money damages,’ as that phrase has traditionally been applied, since they seek no more than compensation for loss resulting from the defendant’s breach of legal duty.” Great-West Life & Annuity Ins. Co. v. Knudson,
Ecopetrol contends that because the judgment cannot be satisfied with funds from the indemnification escrow account, the judgment is an equitable decree. Contrary to Ecopetrol’s contention, this requirement supports the conclusion that the judgment is a money judgment. A monetary recovery might be equitable, if it imposes “a constructive trust or equitable lien on particular property,” or legal, if it imposes “personal liability for the benefits that [the petitioners] conferred upon respondents.” Knudson,
Ecopetrol also argues that the Judgment is not'a money judgment because it was not intended to provide compensation for past injuries. It is true that an “important factor in identifying a proceeding as one to enforce a money judgment is whether the remedy would compensate for past wrongful acts resulting in injuries already suffered, or protect against potential future harm.” Penn Terra
Ecopetrol also contends that the Judgment is not a money judgment because it contains personal commands for performance of an act within a specified time period. Although it is true that a personal command may usually be enforced by contempt, a personal command to render payments may nevertheless fall within the meaning of a “money judgment” under Rule 69. See, e.g., Indus. Prof'l & Tech. Workers Int’l Union, SIUNA, AFL-CIO v. Worldtec Grp. Int’l,
In cases where contempt is appropriately imposed for the violation of courts’ orders to render payment, the reliefs are usually the kinds that are traditionally available in equity, see, e.g., Tauro v. Allegheny Cty.,
B.
In addition, the Court, in the exercise of its discretion, would decline to issue a finding of contempt against Offshore at this time. Civil contempt is a “potent weapon,” which courts should not employ “where there is a fair ground of doubt as to the wrongfulness of the defendant’s conduct.” King v. Allied Vision,
“A court’s inherent power to hold a party in civil contempt may be exercised only when (1) the order the party allegedly failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted in a reasonable manner to comply.” N.Y. State Nat. Org. for Women v. Terry,
Here, the Court’s judgment confirming the arbitration awards that required payment by Offshore to the purchasers is clear and unambiguous, and equally clear is the fact that more than one year after the judgment, Ecopetrol - still had not received from Offshore the payment required by the court’s judgment. However, discretion would indicate that civil contempt sanctions should not issue. Ecopetrol should be able to enforce the judgment through execution on the Judgment — and Ecopetrol has made no effort to show that such efforts would be ineffective. Indeed, Ecopetrol waited eight months — from September 2014 to May 2015 — to begin discovery in aid of execution and filed an Order to Show Cause for Contempt that very same month. After the contempt motion was fully briefed, Ec-opetrol sent a letter demanding full payment of the Judgment on October 28,2015. (ECF No. 111-5.) Since then, for another five months, the petitioner has made no efforts to execute on the Judgment with the tools and remedies provided for. execution. Ecopetrol has provided no reasonable explanation for its inaction. At the argument of the current motion, Ecopetrol explained that it had not pursued execution because creditors’ remedies are “expensive and complicated.” Plainly, .Ecope-trol has not pursued the lawful remedies available to it and the potent weapon of contempt should not be used just because Ecopetrol feels that execution is too much trouble.
Moreover, Offshore has made some efforts- to comply with the Judgment. Both parties appear to agree that, other than the escrow accounts, Offshore’s assets are largely illiquid. (Tr. at' 19, 22, ECF No. 88.) According to Offshore, the liquidation of these assets “would not be easily accomplished, would require considerable time, and would likely result in substantially compromised valuation of the assets.” (Kallop Aff., ECF No. 85.) Given its limited liquid assets, Offshore appears to have made some reasonable efforts to comply with the Judgment. The parties agree that the Judgment has been substantially reduced by payments from the supplemental escrow account and from the VAT reimbursements.
c.
Ecopetrol seeks to hold Kallop, Offshore’s principal, in contempt by making him responsible for Offshore’s failure to comply with the Judgment. Ecopetrol relies on Rule 65(d)(2) of the Federal Rule of Civil Procedure which provides that an injunction binds not only the parties but also “the parties’ officers, agents, servants, employees, and attorneys,” who receive actual notice of the injunction, Fed,R.Civ.P, 65(d)(2)(B). Rule 65 applies to “injunctions and restraining orders,” and more broadly, to an “equitable decree compelling obedience under the threat of contempt.” Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n,
Ecopetrol also argues that .Kallop should be held in contempt for Offshore's alleged preferential payment of certain debts guaranteed by or associated with Kallop personally, and for the alleged improper uses of Offshore’s assets by Kallop and his family for personal purposes. (Ecopetrol’s Reply, EOF No. 98.) The theory is that Kallop has diverted funds away from Offshore and thus prevented Offshore from complying with the Court’s Judgment.
Some courts have held that a corporate officer’s “attempts to drain the corporate resources to avoid satisfying the court’s order” may be punished by contempt. See Elec. Workers Pension Trust Fund of Local Union # 58, IBEW v. Gary’s Elec. Serv. Co.,
Moreover, for the same reasons that the Court would not exercise any discretion to hold Offshore in contempt for not paying the Judgment, the Court would not hold Kallop in contempt for not causing Offshore to pay the Judgment. Ecopetrol has ample civil remedies to execute on the Judgment and to pursue discovery to find Offshore’s assets and tp execute on them.
CONCLUSION
The Court has considered all of the arguments raised .by the parties. To the extent not specifically addressed above, they are either moot or without merit. For the foregoing reasons, Ecopetrol’s motion, by order to show cause, to hold Offshore and Kallop in contempt is denied.
SO ORDERED.
Notes
. Ecopetrol also relies in its order - to show cause on 18 U.S.C. § 401(3) which provides that a federal court has the power to punish by contempt certain disobedience or resistance to its orders. However, that statute is the authority for criminal contempt and the remedy that Ecopetrol seeks here is civil contempt to compel compliance with the Judgment. This provision is therefore inapplicable in this case, and Ecopetrol acknowledged at the argument of the motion that the citation was incorrect.