Choice Hotels International, Inc. v. Patel

Filing 22

CONTEMPT AND SEIZURE ORDER, GRANTING Choice Hotel's 21 motion to hold Defendant in civil contempt; finding Defendant IN CIVIL CONTEMPT, and ORDERING the United States Marshal or his deputy, accompanied by Choice Hotels' counsel and/or p erson(s) acting under its supervision, shall SEIZE and IMPOUND all items located at 611 South Boulevard, Brewton, AL 36426 bearing any of the marks in the QUALITY family of marks as set out in Order. Signed by Senior Judge Callie V. S. Granade on 5/3/2017. (certified copy to USM) (mab) (Additional attachment(s) added on 5/4/2017: # 1 USM Receipt) (mab).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHOICE HOTELS
INTERNATIONAL, INC.,
Plaintiff,
vs.
RAMAN H. PATEL,
Defendant.

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CIVIL ACTION NO. 16-451-CG-B

CONTEMPT AND SEIZURE ORDER
This matter is before the Court based on Defendant Raman H. Patel’s failure
to respond to the Show Cause Order issued March 28, 2017 (Doc. 19), which was
issued as a result of a notice of Defendant’s non-compliance with this Court’s
November 3, 2016 Order and Default Judgment filed by Plaintiff Choice Hotels
International, Inc. (“Choice Hotels”) (Doc. 18). Choice Hotels filed a second notice of
non-compliance upon Defendant’s failure to respond to the Show Cause Order and
now asks the Court find Defendant in civil contempt. (Doc. 21). Upon consideration
of the following, the Court finds Defendant IN CIVIL CONTEMPT and ORDERS
as fully set forth below.
1. LEGAL STANDARD
This Court is empowered by 18 U.S.C. § 401 to punish parties who violate its
orders, injunctions, and judgments. “A party seeking civil contempt bears the
initial burden of proving by clear and convincing evidence that the alleged
contemnor has violated an outstanding court order.” CFTC v. Wellington Precious

Metals, Inc., 950 F.2d 1525, 1529 (11th Cir. 1992). Upon a prima facie showing of a
violation, the burden shifts to the alleged contemnor to defend his or her failure to
comply by showing that, although he or she may have taken all reasonable steps to
comply, he or she was unable to comply. United States v. Rylander, 460 U.S. 752,
757 (1983). If the alleged contemnor makes a sufficient showing, the burden shifts
back to the party seeking contempt who bears the ultimate burden of ability to
comply. Combs v. Ryan’s Coal Co., 785 F.2d 970, 984 (11th Cir.), cert. denied, 479
U.S. 853 (1986). Under normal circumstances a hearing is necessary before an
alleged contemnor may be found in contempt; however, “when there are no disputed
factual matters that require an evidentiary hearing, the court might properly
dispense with the hearing prior to finding the defendant in contempt and
sanctioning him.” Mercer v. Mitchell, 908 F.2d 763, 769 n.11 (11th Cir. 1990).
2. ANALYSIS
The Order and Default Judgment included (1) a permanent injunction with
both a removal and compliance requirement; (2) a surrender order; and (3) an
accounting requirement. Specifically, the Court ordered the following:
b. Defendant, his officers, agents, employees, representatives,
subsidiaries, successors, assigns, and any persons or entities in active
concert or participation with Defendant, shall be and hereby are
PERMANENTLY ENJOINED and restrained from operating or doing
business under any name or mark that is likely to give the impression
that the Motel is licensed by Plaintiff.
c. Defendant is required to IMMEDIATELY remove any and all
QUALITY® branded signs, placards, and source indicators from the
Motel located at 611 South Boulevard, Brewton, Alabama 36426.
d. Within thirty (30) days of this Order, Defendant shall file with the

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Court and serve on counsel for Plaintiff a written statement made
under oath setting forth all of the steps taken to comply with this
Order.
…
5. Defendant is ORDERED to deliver up to Plaintiff for destruction all
items, products, labels, signs, prints, packages, wrappers, receptacles,
and/or advertisements in their possession or control bearing any of the
QUALITY® family of marks as described in footnote 1 or any mark
confusingly similar thereto within thirty (30) days of receiving service
of notice from Plaintiff as to where such items are to be delivered.
6. Defendant is ORDERED to submit within thirty (30) days of this
Order a report in writing and under oath setting forth the following:
(1) the date upon which Defendant ceased use of the QUALITY®
family of marks at the Motel and (2) an accounting of all gross profits
received at the Motel from August 29, 2013 through the date
Defendant ceased use of the QUALITY® family of marks. The parties
shall notify the Court when said accounting is concluded. Upon
conclusion of the accounting, the Court will order additional relief as
the Court considers appropriate, at which time a final judgment will
issue. Should the Court find a hearing necessary to determine the
nature and amount of any damages or profits, the parties will be
notified.
(Doc. 17, pp. 17–18).
On December 23, 2016, Choice Hotels filed its initial Notice of NonCompliance with the Court. (Doc. 18). Therein, Choice Hotels supplied affidavit
and photographic evidence that Defendant failed to remove any and all QUALITY®
branded material. Id. Given Defendant’s non-compliance, the Court ordered
Defendant show cause, no later than April 10, 2017 why he should not be held in
contempt. (Doc. 19, p. 2). Defendant was properly noticed of the Court’s order by
way of certified mail, return receipt requested. (Doc. 20). April 10, 2017 came and
went with no appearance or response by Defendant. And Choice Hotels has, yet
again, supplied affidavit and photographic evidence showing Defendant still makes

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use of the QUALITY® family of marks in violation of the Order and Default
Judgment, at least as recently as April 11, 2017. (Doc. 21). Therefore, Choice
Hotels has carried its burden and established by clear and convincing evidence that
Defendant’s continued use of the QUALITY® family of marks constitutes both a
direct violation of the Court’s Order and an on-going infringement of Choice Hotels’
trademark rights. Defendant’s failure to appear shows he does not dispute his lack
of compliance with the Court’s Order, so a hearing is unnecessary. Thus, the Court
GRANTS Choice Hotel’s motion to hold Defendant in civil contempt (Doc. 21).
3. CONCLUSION
Based on the forgoing, Defendant is herby found to be IN CIVIL
CONTEMPT of the Order and Default Judgment issued by the Court on November
3, 2016. (Doc. 17). The Court hereby
a. ORDERS that within thirty (30) days of the date of this Order, or as soon
thereafter as is reasonably practical, the United States Marshal or his deputy,
accompanied by Choice Hotels’ counsel and/or person(s) acting under its
supervision, shall SEIZE and IMPOUND all the items at the Subject Property,
specifically, the motel and grounds located at 611 South Boulevard, Brewton,
Alabama, 36426, bearing any of the marks in the QUALTIY® family of marks,
including but not limited to, the marks appearing in trademark registration
numbers 886,881; 1,050,372; 1,183,294; 1,534,820; 1,769,488; 2,729,999; 2,732,875;
2,946,054; 3,053,888; 3,448,436; 3,448,437; 3,435,885; 3,569,789; 3,837,912, and that
any such items be turned over to Choice Hotels for destruction or such other

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disposition as Choice Hotels shall in its sole discretion deem appropriate, including
the following items: Property Signage, Entrance Signage, Building Signage, Lobby
Displays/Backdrops, Owner’s Plaques, Rate/Hotel Law Cards, Stationery/Guest and
Office, Shower Curtains, Fire Evacuation Cards, Soap/Amenity Packages, In-Room
Organizers, Cups/Glasses, Van Signs, Folios, Name Tags, Ice Buckets, Guest
Service Directories, Sani-Bags, Travel Directories, Ashtrays, Phone Plates, Info
Caddies, Matches, Brochures, Rack Cards, Flyers, Guest Room Door Signage, Do
Not Disturb Cards, Wastebaskets, Sanitary Toilet Strips, Pads/Pencils/Pens, Guest
Comment Cards;
b. ORDERS that pursuant to 28 U.S.C. § 1921 and 28 C.F.R. § 0.114, Choice
Hotels shall be responsible for any costs associated with the service and execution of
this Order;
c. ORDERS that Choice Hotels shall be responsible for notifying and
coordinating the service and execution of this Order with the designated
representative for the United States Marshal Administrative Officer, Angela Garriz;
d. ORDERS that Choice Hotels shall within thirty (30) days of any seizure
authorized by this Order, file a notice of compliance identifying the date of seizure,
the items seized, and the costs incurred;
e. ORDERS that once the seizure has taken place, the Subject Property has
been de-flagged, and the term of the infringement known, Choice Hotels shall
submit a Memorandum of Points and Authorities setting forth (1) the measure of
infringement damages/profits, costs, and attorneys’ fees to which it claims an

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entitlement in connection with this action and (2) a statement of attorneys’ fees and
costs incurred in connection with this Contempt and Seizure Order.
The Clerk is directed to provide a copy of this order to the United States
Marshal.
DONE and ORDERED this 3rd day of May, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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