HAROLD MURPHY, District Judge
This diversity jurisdiction class action is before the Court on the Motion of Liaison and Lead Defense Counsel for the Funeral Home Defendants for Contempt and to Redistribute Fees and Expenses Among the Funeral Home Defendants [402].
On August 16, 2002, the Court ordered that "[e]ach Funeral Home shall pay a pro rata share of expenses incurred and fees earned by Liaison and Lead Counsel acting in such capacities." (Order of Aug. 16, 2002.) Funeral Home Defendants have informed the Court that three groups of Funeral Home Defendants, Patton's Funeral Home, Inc., Family Mortuary, Inc. and House of Overstreet, Inc., and Covenant Funeral Services, have failed to comply with the Court's August 16, 2002, Order.
On February 11, 2003, the Court held a hearing at which those three groups were given an opportunity to explain their financial situations to the Court. The three groups claimed then, and continue to claim, that they have neither cash flow, assets, nor liability insurance sufficient to pay their share of Lead and Liaison Counsel's fees and expenses incurred to date.
On June 4, 2003, Lead and Liaison Counsel for the Funeral Home Defendants filed a Motion for Contempt and to Redistribute Fees and Expenses Among the Funeral Home Defendants. Defendant Family Mortuary, Inc. and House of Overstreet, Inc. responded to the Motion. In its Response, Defendant Family Mortuary, Inc. and House of Overstreet, Inc. asserts that it lacks the ability to pay the fees and expenses and that such inability was not a willful refusal to abide by an Order of this Court. Defendant Patton's Funeral Home, Inc. and Defendant Covenant Funeral Services did not respond to the Motion.
Funeral Home Defendant Franklin Strickland Funeral Home, Inc. also filed a Response to Funeral Home Defendants' Motion for Contempt and Redistribution of Fees and Expenses. In its Response, Defendant Franklin Strickland Funeral Home, Inc. expressed its concern that the three groups listed supra were not paying their share of the fees and expenses, and requested that the Court sanction those three groups.
The Court has considered the briefs, responses and arguments submitted by the various Funeral Home Defendants. Based on the record before the Court, through representations made at the February 11, 2003, hearing, and the parties' briefs, the Court finds that Defendants Patten's Funeral Home, Inc., Family Mortuary, Inc. and House of Overstreet, Inc., and Covenant Funeral Services do not have assets sufficient to pay the fees and expenses of Liaison and Lead Counsel for the Funeral Home Defendants. The Court further finds that those three groups have made a sufficient showing that they are unable to pay the subject fees and expenses.
The Court therefore grants the portion of the instant Motion of Liaison and Lead Defense Counsel that pertains to the redistribution of fees and expenses. The redistribution of the fees and expenses of the three groups listed supra to the remaining thirty-two funeral home groups does not relieve any Funeral Home Defendant from its obligations under any previous Orders of this Court. The Court denies without prejudice the portion of the Motion that pertains to the request that the Court find certain parties in contempt.
ACCORDINGLY, the Court GRANTS IN PART and DENIES IN PART WITHOUT PREJUDICE the Motion of Liaison and Lead Defense Counsel for the Funeral Home Defendants for Contempt and to Redistribute Fees and Expenses Among the Funeral Home Defendants [402]. The Court grants the portion of the Motion that relates to the redistribution of fees and expenses among the Funeral Home Defendants. The Court denies without prejudice the portion of the Motion that pertains to holding parties in contempt.
IT IS SO ORDERED.