Dillon Real Estate Co., Inc. et al v. American National Insurance Co. et al

Filing 266

ORDER granting plaintiff's 254 Motion to Enforce Permanent Injunction. Signed by Judge Frederick J Martone on 11/23/10. (ESL)

Dillon Real Estate Co., Inc. et al v. American National Insurance Co. et al

Doc. 266

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) ) Plaintiffs, ) ) vs. ) ) American National Insurance Company,) ) Dollar Tree Stores Inc., ) ) Defendants. ) ) Dillon Real Estate Company Inc.; Smith's Food & Drug Centers Inc.,

No. CV 08-1508-PHX-FJM ORDER

The court has before it "Plaintiff's Motion to Enforce Permanent Injunction" (doc. 254), ANICO's Response, Dollar Tree's Response, plaintiff's Reply, and ANICO's Supplement to its Response. We held a hearing on the motion on November 23, 2010. These are the court's findings of fact and conclusions of law. Our Order of April 26, 2010 at 4 (doc. 210), enjoined ANICO from allowing Dollar Tree to sell groceries in the Heatherwood Plaza shopping center. The parties concede that Dollar Tree is still selling goods that constitute groceries. ANICO has written Dollar Tree and asked it to stop, but Dollar Tree has failed to stop and failed to respond. ANICO stated that it had no right to self help. However, it had no satisfactory explanation for failing to bring and vigorously prosecute an action against Dollar Tree. It has delayed doing so in the hope that the parties could sit down and settle the dispute before a magistrate judge appointed by the court.

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

We have since granted the parties' request for the appointment of a magistrate judge to hold a settlement conference. But delay in mediation is no justification for failing to vigorously comply with this court's order. We find by clear and convincing evidence that ANICO has failed to take reasonable steps to prohibit the sale of groceries by Dollar Tree. We thus find ANICO in contempt of this court's order of April 26, 2010. As a remedy, we impose a conditional fine of $500.00 per day for each day ANICO fails to vigorously take steps to prevent Dollar Tree from selling groceries at the Heatherwood Plaza shopping center, beginning on November 29, 2010. ANICO shall file a Compliance Report weekly, beginning on December 6, 2010, detailing the specific measures it has taken to prohibit the sale of groceries in the Dollar Tree store. If the court finds the measures taken satisfactory, the contempt shall be purged in whole or in part for that week. Otherwise, the fine shall be assessed and be reduced to a judgment payable to the Clerk of Court. This process shall go on each week until Dollar Tree stops selling groceries at the Heatherwood Plaza shopping center. If by January 18, 2011 these measures do not produce the desired result, the cessation of the sale of groceries by Dollar Tree at the Heatherwood Plaza shopping center, the court will, in addition, enter an order requiring the personal appearance of the CEO of ANICO to show cause why he or she should not be incarcerated for failing to effectively stop Dollar Tree from selling groceries at the Heatherwood Plaza shopping center, not to be released until effective measures are taken. Accordingly, pursuant to the above terms, it is ORDERED GRANTING plaintiff's Motion to Enforce Permanent Injunction (doc. 254). DATED this 23rd day of November, 2010.

-2-