PH(X) Glass, LLC et al v. Clarke et al

Filing 114

ORDER by Judge Hamilton finding as moot 96 Motion Requesting Advice; finding as moot 98 Request for Appointment of Counsel; finding as moot 101 Motion to Continue; denying 103 Motion to Set Aside (pjhlc1, COURT STAFF) (Filed on 8/29/2011) (Additional attachment(s) added on 8/29/2011: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PH(X) GLASS, LLC, et al.,

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v.

No. C 08-2533 PJH
ORDER

ROLAND CLARKE, et al.,
Defendants.
_______________________________/

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For the Northern District of California

United States District Court

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Plaintiffs,

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This patent and trademark infringement case was filed on May 19, 2008, and was

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concluded with entry of an injunction and a judgment of default on February 25, 2009,

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against defendants Roland Clarke (“Clarke”), PIC Glassware, Inc., and Jamn Extract, Inc.

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On April 21, 2011, plaintiffs filed a request for an order to show cause re contempt against

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defendant Clarke, asserting that he had violated the terms of the injunction. Now before

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the court are certain motions filed in this action by defendant Clarke.

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The hearing on the OSC re contempt was originally set for May 25, 2011, but was

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continued until June 8, 2011 at Clarke’s request. On May 16, 2011, Clarke filed a motion

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requesting advice from the court as to how he should proceed (Doc. 96). On May 20,

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2011, Clarke filed a request for appointment of counsel (Doc. 98). In an order filed on May

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24, 2011, the court deferred ruling on those two motions pending further discussion at the

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June 8, 2011 hearing.

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At that hearing (which Clarke did not attend) the court directed plaintiff’s counsel to

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submit a proposed order for issuance of a subpoena regarding information from Twitter,

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and further directed that once information had been received, counsel should submit a

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supplemental request for a finding of contempt, along with additional evidence and a

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proposed order.

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The proposed order compelling Twitter to produce documents was submitted to the

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court, and the order was issued on July 6, 2011. To date, plaintiffs have not submitted the

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supplemental request for a finding of contempt. However, given that Clarke’s pending

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motions were directed at the original motion for contempt, the court finds that the motions

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must be DENIED as moot, without prejudice to refiling if necessary.

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On May 31, 2011, Clark filed a motion to delay the contempt hearing of June 8, 2011
(Doc. 101). That motion is DENIED as moot.
On June 2, 2011, Clarke filed a motion to set aside the judgment pursuant to
Federal Rule of Civil Procedure 60(b)(3) (relief from judgment because of fraud) and/or
60(d)(3) (set aside judgment because of fraud on the court). The “fraud” that Clarke

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For the Northern District of California

United States District Court

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alleges is the fact that the patented and trademarked product at issue is a glass “bong,”

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which he claims is illegal drug paraphernalia.

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The motion is DENIED. Clarke was served with the summons and complaint, and

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with plaintiff’s application for a temporary restraining order and order to show cause re

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preliminary injunction. The court eventually granted the preliminary injunction. Plaintiffs

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requested entry of default, which was granted on September 10, 2008. Plaintiffs moved for

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default judgment, and the motion was set for hearing on January 21, 2009. The court

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granted the motion on February 25, 2009.

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Throughout this time, Clarke was served with all notices and motions filed, but made

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no appearance whatsoever. The judgment was issued in this case pursuant to Federal

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Rule of Civil Procedure 55, following entry of default by the court. Clarke has presented no

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meritorious argument addressing why the default judgment should be set aside in this case.

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IT IS SO ORDERED.

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Dated: August 29, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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