Ravago Americas v. Dmytruk

United States Court of Appeals
for the Fifth Circuit

No. 19-20800

Ravago Americas L.L.C.,

Plaintiff,

versus

Vinmar International Limited,

Defendant,
______________________________

Ravago Americas L.L.C.,

Plaintiff—Appellee,

versus

Kirt Dmytruk,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-36
USDC No. 4:19-CV-2691

Before King, Stewart, and Southwick, Circuit Judges.
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2020

Lyle W. Cayce
Clerk
Case: 19-20800 Document: 00515599444 Page: 1 Date Filed: 10/13/2020

No. 19-20800
2
Per Curiam:*
Following what the presiding judge described as a civil enforcement
hearing, Kirt Dmytruk was found to have violated an injunction. The judge
ordered that Dmytruk pay Ravago Americas L.L.C. $50,000 plus attorneys’
fees and imposed an additional recordkeeping requirement, along with a
three-month extension of the injunction. Dmytruk appealed, arguing that the
district court’s contempt findings are unsupported by the record and the
contempt order should be reversed in its entirety. We disagree. Even so,
Dmytruk contends that, at minimum, the $50,000 sanction, the
recordkeeping requirement, and the injunction extension should be vacated.
Dmytruk argues these are criminal sanctions, imposed despite the absence of
the requisite constitutional protections. Because the recordkeeping
requirement and the three-month extension (as modified and extended) have
finally expired, Dmytruk’s arguments as to these are moot. As to the $50,000
sanction, however, Dmytruk is correct. Accordingly, this appeal is
DISMISSED IN PART, and we AFFIRM IN PART and VACATE
IN PART the district court’s order.
I.
Defendant–appellant Kirt Dmytruk is a former employee of plaintiff–
appellee, Ravago Americas L.L.C. Before leaving Ravago in August 2018,
Dmytruk signed a non-solicitation agreement. He promised that, for eighteen
months after leaving Ravago, he would not attempt to recruit any of his
Ravago colleagues.
Some months later, Ravago sued Dmytruk in federal district court in
Connecticut for violations of their agreement. Dmytruk had by then begun

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-20800 Document: 00515599444 Page: 2 Date Filed: 10/13/2020

No. 19-20800
3
working for Ravago’s competitor, Vinmar International, Ltd., and Ravago
alleged Dmytruk was attempting to poach Ravago’s employees.
The Connecticut court entered a preliminary injunction that, inter
alia, enjoined Dmytruk from “[t]aking the initial step to contact, try to
contact, or solicit current employees or personnel of Ravago or any of its
subsidiaries or related entities to work for Vinmar International, Ltd. or any
of its affiliates.” The court explained that it added the “initial step” language
to Ravago’s proposed injunction to protect Dmytruk, in the event that
“someone who’s an employee of Ravago wants to go searching for a job and
they apply.”
In April 2019, four Vinmar employees, including Dmytruk, attended
an industry trade show. Also at the trade show was Rodrigo Lacayo, a Ravago
employee. Although the substance of their interactions is contested, it is
undisputed that Dmytruk and Lacayo met at the trade show and that they
later met for drinks with two of the other Vinmar employees, Oscar Bedoya
and Fernando Lopez. According to Lacayo, over drinks, Dmytruk attempted
to recruit him to work at Vinmar. But Dmytruk, Bedoya, and Lopez told a
different story. Lacayo testified that he considered the offer for a few days
before deciding to remain at Ravago.
Based on these encounters, Ravago filed a motion in the Connecticut
district court seeking to have Dmytruk declared a contemnor. This appeal is
before us, however, because before the motion was ruled on, the lawsuit was
transferred to the Southern District of Texas.
The Texas district court held a hearing on the contempt motion, at
which Lacayo and the four Vinmar employees testified. Responding to
defense counsel’s remarks about the prospect of criminal sanctions, the
district court declared: “There will be no criminal at this proceeding. . . . This
is a civil enforcement or inspirational hearing. It will be all quite civil.”
Case: 19-20800 Document: 00515599444 Page: 3 Date Filed: 10/13/2020

No. 19-20800
4
After the final witness was heard, the district court announced, in
relevant part, that it “conclude[d] that the injunction was violated” and
ordered Dmytruk to pay “$50,000 plus the attorneys’ fees related to this
hearing.” The district court pointed out apparent inconsistencies in
Bedoya’s and Lopez’s testimonies. The district court concluded that
“[Dmytruk] raised the prospect of employment with Vinmar, and that’s all
it takes.”
A written contempt order followed. It stated that “Dmytruk violated
the preliminary injunction by contacting Rodrigo Lacayo—a Ravago
Americas L.L.C., employee.” And it required Dmytruk (1) to “pay Ravago
$50,000 for his violation,” (2) to “reimburse Ravago for its reasonable
attorney fees related to the hearing on the motion for contempt,” and (3) to
“keep a log of his daily activities, appointment schedules, phone records, and
work and personal computer use.” The order extended the preliminary
injunction “for three months to compensate for this distraction.”
Dmytruk appealed and moved this court to stay the contempt order
pending appeal. Ravago responded, asserting that this court lacked
jurisdiction over the appeal, which this court construed as a motion to dismiss
the appeal. A motions panel denied both motions without opinion.
II.
A. Jurisdiction
We address jurisdiction first, though our jurisdictional inquiry here is
intertwined with the merits. Ravago asks us to dismiss this appeal because it
asserts the contempt sanctions at issue are civil penalties. If Ravago is
correct—and given that the case in district court is ongoing—we lack
jurisdiction. See Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990)
(citing Drummond Co. v. Dist. 20, United Mine Workers, 598 F.2d 381 (5th
Case: 19-20800 Document: 00515599444 Page: 4 Date Filed: 10/13/2020

No. 19-20800
5
Cir. 1979)). If, however, we determine the sanctions imposed were criminal,
Dmytruk was entitled to take an immediate appeal.
This is so because this court has jurisdiction over “appeals from . . .
final decisions of the district courts of the United States.” 28 U.S.C. § 1291.
And,“[o]rdinarily, civil contempt orders are not viewed as final, appealable
orders under 28 U.S.C. § 1291.” Lamar, 918 F.2d at 566. “Criminal
contempt orders, on the other hand, are final and immediately appealable.”
Id. Where an order “contains both a punitive and a coercive dimension,” the
punitive, or criminal, feature dominates and fixes its character for purposes
of review. Id. at 567; see Int’l Union, United Mine Workers of Am. v. Bagwell,
512 U.S. 821, 836 (1994) (quoting Hicks on Behalf of Feiock v. Feiock, 485 U.S.
624, 638 n.10 (1988)); see also FDIC v. LeGrand, 43 F.3d 163, 168 (5th Cir.
1995) (Stewart, J.) (citing Lamar, 918 F.2d at 567).
For reasons that will become clear below, the $50,000 sanction is best
characterized as punitive, fixing the character of the contempt order as
criminal for jurisdictional purposes, and giving us the power to entertain this
appeal.
B. Due Process
i. Criminal v. Civil Contempt
Dmytruk’s ultimate question is whether due procedural protections
were employed before the district court imposed the $50,000 sanction. The
requisite protections vary based on the nature of the penalty. See Bagwell, 512
U.S. at 827 n.2. And so, to address Dmytruk’s question, we must first decide
whether the $50,000 sanction is best characterized as a civil contempt
sanction or a criminal one.
The distinction between the two is elusive, and the varied tests used
to make this determination are not easily reconcilable. See Bagwell, 512 U.S.
at 839-40 (Scalia J., concurring). Although the district court’s
Case: 19-20800 Document: 00515599444 Page: 5 Date Filed: 10/13/2020

No. 19-20800
6
characterization of the proceeding is a natural starting point for our inquiry,
see Smith v. Sullivan, 611 F.2d 1050, 1052 n.7 (5th Cir. 1980), it is not the end.
“[C]onclusions about the civil or criminal nature of a contempt sanction are
properly drawn . . . ‘from an examination of the character of the relief itself.’”
Crowe v. Smith, 151 F.3d 217, 227 (5th Cir. 1998) (quoting Bagwell, 512 U.S.
at 828).
Criminal sanctions are designed to vindicate the authority of the court.
Ingalls v. Thompson (In re Bradley), 588 F.3d 254, 263 (5th Cir. 2009). They
are punitive and typically punish a contemnor for past disobedience. Id. By
contrast, civil sanctions can either be compensatory or coercive. To be
compensatory, they must remedy losses sustained. Id. Where coercive, civil
sanctions are designed to pressure the contemnor into compliance with a
court order. Id.
Distinguishing between civil and criminal sanctions by looking to the
character of the relief, however, does not always yield clear answers. This is
so because even where punishment is purely compensatory, there is also
vindication of the court’s authority. And where the punishment is solely
punitive, there may be incidental benefit to the complainant, as such
punishment may well deter future disobedience. See Gompers v. Buck’s Stove
& Range Co., 221 U.S. 418, 443 (1911).
Because the character of the relief is not always easy to ascertain, it is
best considered in the context of the extraordinary means of enforcement
employed. “That one and the same person should be able to make the rule,
to adjudicate its violation, and to assess its penalty is out of accord with our
usual notions of fairness and separation of powers.” Bagwell, 512 U.S. at 840
(Scalia J., concurring). As an injunction’s commands become more complex,
contempts involving out-of-court disobedience may require elaborate and
reliable factfinding. Bagwell, 512 U.S. at 833-34. A “hearing must be held,
Case: 19-20800 Document: 00515599444 Page: 6 Date Filed: 10/13/2020

No. 19-20800
7
witnesses must be called, and evidence taken in any event. And often . . .
crucial facts are in close dispute.” Id. at 834 (quoting Green v. United States,
356 U.S. 165, 217 n.33 (1958) (Black, J., dissenting)). Under these
circumstances, in light of the extraordinary means of enforcement at play,
criminal procedural protections may be both necessary and appropriate. Id.
at 834.
As Ravago highlights, there are some facts before us that indicate the
$50,000 sanction was intended as a civil penalty. The presiding judge did,
after all, note that “there would be no criminal at [the] proceeding.” “It will
be all quite civil,” he remarked. Further, the district court ordered the
$50,000 be paid directly to Ravago, as opposed to the court itself. See Feiock,
485 U.S. at 632 (describing fines as compensatory when paid to the
complainant and punitive when paid to the court). At first blush, then, the
$50,000 sanction appears to be compensatory.
But we cannot overlook the fact that for a sanction to be
compensatory, it must be “measured in some degree by the pecuniary injury
caused by the act of disobedience.” Gompers, 221 U.S. at 444. The district
court announced Dmytruk was to pay $50,000 without explaining how this
amount relates to any loss Ravago sustained. After all, Rodrigo Lacayo, the
employee at the center of the dispute, still works for Ravago. Ravago argues
that the cost of the violation, though not easily ascertainable, is real. Ravago
notes the violation caused it to “consider the means necessary to maintain
relationships with its key employees” and “engage in uncomfortable
monitoring of [valuable] employees.” No evidence of how these activities
amounted to a $50,000 expense was proffered during the hearing, nor do any
arguments briefed before the district court explain how the $50,000 may
have served a remedial, or compensatory, function.
Case: 19-20800 Document: 00515599444 Page: 7 Date Filed: 10/13/2020

No. 19-20800
8
That the $50,000 sanction is not compensatory, however, does not
mean it cannot be appropriately characterized as civil. See, e.g., Ingalls, 588
F.3d at 263 (explaining that civil fines may be compensatory or coercive). The
district court indicated the $50,000 sanction was meant to be coercive: “This
is coercive,” the court remarked, “. . . which doesn’t mean that it can’t be
kind of harsh . . . .” And, indeed, as the court granted a three-month
extension of the injunction, the penalty may well have had a coercive effect.
The cost could have deterred Dmytruk from disobeying the prohibitions still
in place.
The penalty’s coercive effect, though, is merely incidental. In other
words, “[w]here a fine is not compensatory, it is civil only if the contemnor
is afforded an opportunity to purge.” Bagwell, 512 U.S. at 829. “[A] ‘flat,
unconditional fine’ totaling even as little as $50 announced after a finding of
contempt is criminal if the contemnor has no subsequent opportunity to
reduce or avoid the fine through compliance.” Id. (quoting Penfield Co. of Cal.
v. SEC, 330 U.S. 585, 588 (1947)); see also Ingalls, 588 F.3d at 263 (“[A] lump
sum fine that punishes past conduct is criminal, while a fine that accrues on
an ongoing basis in response to noncompliance is civil.”). The judge offered
no such opportunity to purge the $50,000 sanction. Therefore, the $50,000
sanction, despite its incidental coercive effect, looks more like a flat fine
meant to punish Dmytruk for past conduct, and thereby vindicate the court’s
authority. That is, the $50,000 sanction is best characterized as punitive, or
criminal.
If any doubt remains about the proper characterization of the $50,000
sanction, we need only look to the means of enforcement employed. See
Bagwell, 512 U.S. at 840 (Scalia J., concurring). To decide if the injunction
had been violated, the judge presided over a lengthy hearing. Several
witnesses testified to conflicting accounts of the relevant events. Critical
facts were in close dispute. These circumstances indicate that criminal
Case: 19-20800 Document: 00515599444 Page: 8 Date Filed: 10/13/2020

No. 19-20800
9
procedural protections were likely necessary and appropriate. Bagwell, 512
U.S. at 833-34. Having considered all relevant factors, we conclude the
$50,000 sanction, unrelated to any evidenced pecuniary injury and imposed
without opportunity to purge, is best characterized as a criminal sanction.
ii. Standard of Review
The parties ask that we take a final detour before resolving the due
process question, to address the appropriate standard of review. Ravago
asserts that on this record, the district court’s actions should be reviewed for
plain error. Dmytruk disagrees, urging “the ordinary standard of review to
reverse criminal-contempt orders.” There is a lack of guidance from binding
precedent on this point, and conflicting persuasive authority.
1
The facts of
this case, featuring ambiguous objections, do not present the best
opportunity to settle this issue. Because we conclude that Dmytruk has
demonstrated plain error, we proceed with our analysis assuming (without
deciding) that plain-error review applies.
iii. Due Procedural Protections
We return to the question ultimately at issue. Having established the
$50,000 sanction is best characterized as a criminal sanction, were the due
procedural protections properly employed? Dmytruk argues that he was
entitled to a host of procedural safeguards—none of which was present at his
hearing—including notice of potential criminal sanctions, a requirement of

1
Cf. Viator v. Miller, 136 F. App’x 615, 616 (5th Cir. 2005) (employing plain-error
review), with United States v. Puente, 558 F. App’x 338, 341 (5th Cir. 2013) (making no
mention of plain-error despite noting that the defendant “did not contemporaneously
object to his contempt proceedings”).The Fourth Circuit, on the other hand, concluded
that plain-error review was proper even though the defendant’s “failure to raise a timely
objection to the court’s summary contempt proceeding is understandable.” United States
v. Hernandez (In re Gates), 600 F.3d 333, 337 (4th Cir. 2010).
Case: 19-20800 Document: 00515599444 Page: 9 Date Filed: 10/13/2020

No. 19-20800
10
“contumacious intent,” a beyond-a-reasonable-doubt standard of guilt, an
independent prosecutor, and a jury trial. Ravago responds that the procedural
protections listed by Dmytruk are not required in every criminal contempt
hearing and are not required here.
A variety of procedural safeguards must be in place before a district
court may impose criminal sanctions. See Bagwell, 512 U.S. 826-27 (collecting
cases). These range from sufficient notice that the proceedings are of a
criminal nature to proof of guilt beyond a reasonable doubt, and the
involvement of an independent prosecutor. See Lamar, 918 F.2d at 567; Fed.
R. Crim. P. 42(a)(1) (notice); see also Crowe, 151 F.3d at 227-28
(independent prosecutor); In re Stewart, 571 F.2d 958, 965 (5th Cir. 1978)
(proof beyond a reasonable doubt); In re Joyce, 506 F.2d 373, 378 (5th Cir.
1975) (state of mind).“‘[S]erious’ criminal contempts” trigger “the right to
jury trial.” Bagwell, 512 U.S. at 826-27 (quoting Bloom v. Illinois, 391 U.S. 194,
199 (1968)).
It is undisputed that most of these protections were not present at
Dmytruk’s hearing. And the absence of even one suffices to vacate his
criminal sanctions. See, e.g., Bagwell, 512 U.S. at 838 (vacating for lack of jury
trial); Crowe, 151 F.3d at 228-29 (vacating for lack of independent
prosecutor); Lamar, 918 F.2d at 567 (vacating for lack of notice); see also
LeGrand, 43 F.3d at 169-70 (vacating for lack of notice and independent
prosecutor). Ravago suggests that Dmytruk’s criminal sanctions were not
“serious,” and therefore some or all of these protections were not required.
To be sure, we encounter another elusive distinction between serious
and petty fines for contempt, as no dividing line has been precisely drawn,
and this distinction has some bearing on the requisite protections. See
Bagwell, 512 U.S. at 837 n.5; Crowe, 151 F.3d at 228 n.13. This court, however,
has ruled that a fine of “$75,000 is manifestly non-petty in the case of an
Case: 19-20800 Document: 00515599444 Page: 10 Date Filed: 10/13/2020

No. 19-20800
11
individual,” Crowe, 151 F.3d at 228 n.13, and has suggested elsewhere that “a
petty criminal contempt penalty does not exceed . . . a fine of $5,000.” Fahle
v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2000) (Stewart, J.). Accordingly,
Dmytruk’s $50,000 sanction was a “serious” criminal contempt penalty,
entitling him to the protection of a jury trial, see Bagwell, 512 U.S. at 826-27,
which he did not receive. The district court examined conduct that took place
out of court and relied on the lengthy testimony of witnesses—immediate
punishment was not so essential as to merit an exception to the requirements
of due process. See Stewart, 571 F.2d at 964; see also Fed. R. Crim. P.
42(b).
Therefore, the district court plainly erred in imposing the $50,000
sanction without employing proper procedural protections. See Puckett v.
United States, 556 U.S. 129, 135 (2009); see, e.g., Crowe, 151 F.3d at 228
(“[T]he district court committed a clear violation of CNA and Tone’s right
to due process in this case when it imposed determinative criminal fines on
them without affording the benefit of an independent and impartial
prosecutor.”).
Further, this error “affected the appellant’s substantial rights, which
in the ordinary case means he must demonstrate that it ‘affected the outcome
of the district court proceedings.’” Puckett, 556 U.S. at 135 (quoting United
States v. Olano, 507 U.S. 725, 734 (1993)). It would be difficult to conclude
that the district court’s use of the wrong standard of proof—and failure to
submit the facts to a jury—had no effect on the outcome of the proceeding at
issue, particularly in light of the conflicting testimony at the hearing. See
United States v. Davila, 569 U.S. 597, 611 (2013) (structural errors trigger
automatic reversal); see also United States v. Neal, 101 F.3d 993, 999 (4th Cir.
1996) (“[T]he failure of the district judge to appoint an independent
prosecutor to pursue the charge of indirect contempt is an error that affects
substantial rights.”).
Case: 19-20800 Document: 00515599444 Page: 11 Date Filed: 10/13/2020

No. 19-20800
12
And so, we have “the discretion to remedy the error—discretion
which ought to be exercised only if the error ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Puckett, 556 U.S. at
135 (quoting Olano, 507 U.S. at 736). We conclude this discretion would be
properly exercised here, where the defendant was subjected to criminal
contempt sanctions without several procedural protections that the Supreme
Court has long held are required. The district court’s errors implicate a
“bedrock principle[] in our system of justice” and thus “was of the most
fundamental kind.” In re Gates, 600 F.3d at 341. We are compelled to correct
them and vacate the $50,000 sanction.
C. Evidence Supporting the Contempt Order
Having determined we should vacate the criminal portion of the order,
we turn to whether the evidence presented was sufficient to support a finding
of civil contempt,
2
or whether the civil contempt order, and the associated
award of attorneys’ fees, should be reversed.
Although we review findings of civil contempt for abuse of discretion,
our review is not perfunctory. Test Masters Educ. Servs., Inc. v. Robin Singh
Educ. Servs., Inc., 799 F.3d 437, 452 (5th Cir. 2015) (Southwick, J.). Thus,
this court “review[s] the district court’s factual findings for clear error and

2
The $50,000 sanction is best characterized as a criminal sanction and, for
jurisdictional purposes, fixed the character of the contempt order as criminal. This issue,
however, implicates the validity of the entire contempt order, including the award of
attorneys’ fees—a sanction that Dmytruk concedes is civil. Although the ordered sanctions
were mixed, it does not follow that we must vacate and remand the whole proceeding for
failure to employ proper procedural safeguards before imposing a criminal sanction. See
LeGrand, 43 F.3d at 170 (citing Lamar, 918 F.2d at 256 (vacating and remanding the
criminal portion of the order but affirming the civil portion after finding the district court
had not abused its discretion in granting the civil relief)); Smith v. Smith, 145 F.3d 335, 337
(5th Cir. 1998) (bifurcating relief).
Case: 19-20800 Document: 00515599444 Page: 12 Date Filed: 10/13/2020

No. 19-20800
13
its legal conclusions de novo.” Sundown Energy, LP v. Haller, 773 F.3d 606,
615 (5th Cir. 2014).
i. Scope of the Injunction
We begin with an analysis of the injunction’s language. “[T]he
interpretation of the scope of the injunctive order[] is a question of law to be
determined by the independent judgment of this [c]ourt.” Hornbeck Offshore
Servs., LLC v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (quoting Drummond
Co., 598 F.2d at 385).
The parties dispute what conduct the injunction actually prohibited.
In relevant part, the injunction’s terms enjoined Dmytruk from “[t]aking the
initial step to contact, try to contact, or solicit current employees or
personnel of Ravago . . . to work for Vinmar.” Dmytruk argues that the
injunction’s language means he “was allowed to interact and even discuss
employment with Ravago employees so long as he did not initiate the
contact.” This, in Dmytruk’s view, is the only reasonable interpretation of
the injunction. Ravago disagrees and argues that the language “prohibits
Dmytruk from communicating with any of Ravago’s employees about
working for Vinmar, unless the Ravago employee broaches the subject first.”
At the center of the parties’ disagreement is whether the phrase “to
work for Vinmar” applies only to “solicit” or applies to “contact” and “try
to contact” as well. In Dmytruk’s view, the prohibition on contact was
unconnected with working for Vinmar, and thus as long as he did not take the
initial step to contact Lacayo, he could not be in violation of the injunction.
In Ravago’s view, “[t]he question . . . is not who took the initial step to
communicate, but rather who took the initial step to communicate about
working for Vinmar.”
Assuming, arguendo, that the phrase “to work for Vinmar” applies
only to the verb “solicit,” Dmytruk was nevertheless forbidden to (take the
Case: 19-20800 Document: 00515599444 Page: 13 Date Filed: 10/13/2020

No. 19-20800
14
initial step to) “contact, try to contact, or solicit” Ravago employees. Thus,
even if Dmytruk did not violate the prohibition on taking the initial step to
contact Ravago employees, he was still subject to the prohibition on taking
the initial step to solicit Ravago employees to work for Vinmar. Nothing in
the injunction’s language supports Dmytruk’s contention that if a Ravago
employee first contacted him, he would then be free to solicit that employee.
Dmytruk points to the Connecticut court’s explanation of the
injunction but that militates against his position. The Connecticut court said
that the “initial step” language was meant to allow Dmytruk to respond to a
Ravago employee who is “searching for a job.” This does not amount to
Dmytruk being free to solicit any Ravago employee who approached him on
matters unrelated to employment. That exception would have the
unreasonable effect of swallowing the rule, leaving Dmytruk free to solicit
Ravago employees under a host of uncontemplated circumstances.
3
We
conclude that, in relevant part, paragraph four of the injunction was clearly
meant to keep Dmytruk from taking the initial step to solicit Ravago
employees on Vinmar’s behalf.

3
Dmytruk points us in the direction of Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 10–
11 (1st Cir. 2013), in support of the proposition that the initial step language should be
allowed to operate “with full force.” The First Circuit in that case was merely elaborating
on the distinction between active solicitation and accepting business. Importantly, it
declined to adopt a per se rule on the weight of an initial contact, hesitating to accept an
interpretation of initial contact that would deprive the employer of its bargained-for-
protection. Id. at 11. Dmytruk’s position is similar to the one the First Circuit disapproved
of in Harnett, noting that “[t]he defendants [sought] to change the trajectory of the debate
by insisting that, once a customer initiates contact with an employee who has switched his
affiliation, all bets are off and subsequent business activity cannot as a matter of law
constitute solicitation. This argument is simply a linguistic trick: creative relabeling,
without more, is insufficient to transform what is manifestly a question of fact into a
question of law.” Id. at 10–11.
Case: 19-20800 Document: 00515599444 Page: 14 Date Filed: 10/13/2020

No. 19-20800
15
ii. Evidence Supporting the Findings
With this interpretation in mind, we turn to whether the district
court’s contempt findings are supported by the record.
“To establish civil contempt, the [movant] must prove by clear and
convincing evidence that a party 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.’” Sundown Energy, 773 F.3d at 615
(quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)).
Evidence in this context amounts to being clear and convincing if it
“produces in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established . . . .” See Test Masters, 799
F.3d at 456 (quoting Oaks of Mid City Resident Council v. Sebelius, 723 F.3d
581, 585 (5th Cir. 2013)).
Certainly, “[i]f the district court’s factual findings are insufficient to
allow this [c]ourt to review the judgment below, then we must vacate the
judgment and remand for more detailed findings.” Colonial Penn Ins. v. Mkt.
Planners Ins. Agency, 157 F.3d 1032, 1037 (5th Cir. 1998). And it is “an abuse
of discretion” for a district court to “refus[e] to identify the basis for its
contempt finding.” In re U.S. Bureau of Prisons, Dep’t of Justice, 918 F.3d 431,
440 (5th Cir. 2019). But this is not the case here. At the contempt hearing,
the district court plainly found that Dmytruk “raised the prospect of
employment with Vinmar,” and the court stated that “that’s all it takes.”
Although the court did not specifically recite that Dmytruk “took the initial
step,” it did find that Dmytruk, not Lacayo, “raised the prospect” of
employment. This amounts to the same thing. The district court’s language
provides “a clear understanding of the analytical process by which [the]
ultimate findings were reached,” ENI US Operating Co. v. Transocean
Case: 19-20800 Document: 00515599444 Page: 15 Date Filed: 10/13/2020

No. 19-20800
16
Offshore Deepwater Drilling, Inc., 919 F.3d 931, 935 (5th Cir. 2019), and thus
we need not remand the case for additional factfinding.
As to the evidence itself, Dmytruk argues that the district court erred
by disregarding unrebutted testimony from Vinmar employee Raul Diaz,
alleging that Diaz discussed Vinmar employment with Lacayo before the
conversation between Lacayo and Dmytruk took place. Ravago responds that
the district court could have disbelieved Diaz even if his testimony was
unrebutted and further argues that because there is no evidence that
Dmytruk knew about Diaz’s conversation with Lacayo, Dmytruk remained
bound by the injunction.
Lacayo testified to having received a phone call from Dmytruk and
also that Dmytruk enticed him to consider the prospect of working for
Vinmar. Diaz testified to an interaction with Lacayo earlier in the day. Diaz’s
testimony, however, was not so clear and unimpeachable that the district
court was required to find that Diaz had in fact solicited Lacayo. Lacayo’s
account of the events contradicted Diaz’s. Even if Lacayo did not directly
rebut some of Diaz’s points, a court need not accept as true all testimony that
is not directly rebutted. Diaz stated he was employed by Vinmar, Dmytruk’s
employer and codefendant, after all. See, e.g., Brown v. Ford Motor Co., 479
F.2d 521, 523 (1973) (“When the interest of the testifying witness in a
particular outcome of the pending litigation is substantial, his possible bias
may be sufficient in itself to create a jury question as to credibility.”).
4

4
Further, the record is clear that the district court did not simply ignore this
testimony. Rather the court concluded that the interaction did not amount to “seeking out
anybody or looking for a job,” because “[t]hat’s what you do at trade shows is wander
around and talk to other people.” Even if the district court found there was contact between
Diaz and Lacayo before the exchange between Dmytruk and Lacayo at the restaurant, this
does not necessarily preclude a finding that Dmytruk was the first to take the initial step to
solicit Lacayo.
Case: 19-20800 Document: 00515599444 Page: 16 Date Filed: 10/13/2020

No. 19-20800
17
In the end, Diaz’s direct testimony was simply that, after he met
Lacayo and gave him his business card, Lacayo said, “Vinmar is a good
company.” Diaz responded: “If in the future you are interested or so, you
can contact me as a courtesy.” That was the extent of their interaction. It
would not have been clearly erroneous for the district court to conclude that
this did not constitute Diaz taking the initial step to solicit Lacayo—either
because Diaz’s vague statement did not constitute solicitation or because
Lacayo himself took the initial step in that exchange by praising Vinmar.
In reaching its determination that Dmytruk violated the injunction,
the district court considered conflicting testimony, but it also considered
evidence corroborating the witnesses’ accounts. Different witnesses
provided different explanations for phone records and missing text messages.
Evidence of the location at which the solicitation allegedly took place, the
acoustics, and ambiance also informed the district court’s decisions as to
which account of the facts it found most credible. The district court could
have found, by clear and convincing evidence, that Dmytruk violated the
injunction’s unambiguous prohibition. We therefore affirm the district
court’s findings and its award of attorneys’ fees—which everyone agrees is a
compensatory, civil sanction.
D. Recordkeeping Requirement & Three-Month Extension
At this appeal’s inception the parties disputed whether the district
court’s imposition of an additional recordkeeping requirement and a three-
month extension of the underlying injunction could survive review.
Subsequently, Dmytruk filed a Rule 28(j) notice with this court, informing us
that because these expired, the issues are moot and need not be addressed.
Dmytruk then filed a second letter asserting that his “challenge to the

Case: 19-20800 Document: 00515599444 Page: 17 Date Filed: 10/13/2020

No. 19-20800
18
recordkeeping requirement remains a live controversy because the order that
he turn over those records to Ravago derives from the unlawful
recordkeeping mandate.” Dmytruk conceded during oral argument that the
recordkeeping requirement expired. By separate order, the di strict court
directed the records be turned over to the court. These were due on July 16,
2020, and there is no indication that Dmytruk failed to comply with the
court’s directive. Now that the district court is presumably in possession of
Dmytruk’s log, it is unclear what relief vacating the recordkeeping
requirement might provide. Accordingly, Dmytruk’s arguments on appeal as
to these sanctions are dismissed as moot.
CONCLUSION
For the reasons detailed above, part of this appeal (concerning the
recordkeeping requirement and the extension of the injunction) is
DISMISSED as moot. The $50,000 sanction is VACATED. The balance
of the district court’s order is AFFIRMED. Each party shall bear its own
costs.
Case: 19-20800 Document: 00515599444 Page: 18 Date Filed: 10/13/2020