Craters & Freighters v. Daisychain Enterprises et al

Filing 176

ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 174 MOTION FOR SANCTIONS. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 8/7/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 09-04531 CW
CRATERS & FREIGHTERS,
Plaintiff,

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v.
DAISYCHAIN ENTERPRISES, dba
FREIGHT & CRATE; CATHY BENZ; and
FRED BENZ.
Defendants.

United States District Court
For the Northern District of California

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ORDER GRANTING
PLAINTIFF’S MOTION FOR
SANCTIONS

________________________________/

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Plaintiff Craters & Freighters has filed a motion for

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additional contempt sanctions for violation of the Court’s June

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30, 2014, July 9, 2014 and July 15, 2014 orders.

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considered Plaintiff’s papers, the Court grants the motion and

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awards additional contempt sanctions.

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imposes the further contempt sanctions it discussed in its July 15

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order.

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Having

In addition, the Court

BACKGROUND

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In an order dated May 22, 2014, the Court granted Plaintiff’s

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motion for contempt sanctions and advised Defendants that it would

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impose sanctions of $1,000 per day that any infringing internet

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advertisements are found.

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Court entered an order awarding Plaintiff $15,622.15 in attorneys’

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fees and costs (Docket No. 165) and an order granting Plaintiff

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$1,000 in contempt sanctions (Docket No. 166).

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directed Defendants to pay Plaintiff within seven days of the date

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of the order.

Docket No. 159.

On June 30, 2014, the

Both orders

The order awarding attorneys’ fees and costs

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advised Defendants that if they were unable to pay the full

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$15,622.15 within seven days of the date of the order, they must

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pay “what they can” and “file a financial affidavit and a proposed

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payment plan within seven days of the date of [the June 30]

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order.”

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Docket No. 165.

On July 7, 2014, the day that payment of both amounts or

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partial payment and a financial affidavit and proposed payment

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plan were due, Defendants filed a “Motion for 30 Day Extension of

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Court’s Orders of June 30, 2014.”

In that motion, Defendants

United States District Court
For the Northern District of California

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stated that they were “in the process of collecting funds as

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ordered by the Court but will need 30 days to attain said funds.”

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Docket No. 168.

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affidavits to support a finding that they are unable to pay any

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portion of the $16,622.15 due or that they required thirty days to

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pay the amount in full.

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Defendants any extension on payment of $1,000 in contempt

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sanctions.

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However, Defendants did not submit any financial

Moreover, the Court did not offer

On July 8, 2014, the Court denied Defendants’ motion for

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extension of time and ordered Defendants to pay Plaintiff

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$16,622.15 within three days of the date of that order.

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again advised that, if Defendants were not able to pay the full

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amount within three days, they must pay at least the $1,000 in

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contempt sanctions and any portion of the attorneys’ fees and

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costs that they were then able to pay.

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that, if Defendants made a partial payment, they must also file a

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financial affidavit disclosing all assets and liabilities, signed

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under penalty of perjury, and a proposed payment plan, within

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three days of the date of the order.
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The Court

The Court further ordered

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On July 15, 2014, two days after the deadline set out in the

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Court’s July 8 order, the Court received various documents from

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Defendants.

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in the amount of $16,622.15 and a declaration from Defendant Fred

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Benz that stated that “all monies provided for in the matter on

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file herein have been deposited with the Clerk of the District

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Court and credited and posted in the above captioned action.”

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Docket No. 171.

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for whose benefit this order is being presented is entitled to

These documents included a purported promissory note

The declaration further indicated that “the party

United States District Court
For the Northern District of California

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withdraw the sum of $16,622.15.”

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submit any payment to the Court, only the purported promissory

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note.

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Id.

However, Defendants did not

On July 15, 2014, the Court entered an order noting that

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Defendants had made no effort to comply with the Court’s prior

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orders and directing them to make full payment or to make partial

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payment, along with a financial affidavit and a proposed payment

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plan.

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$16,622.15 within three days of the date of that order.

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again advised that, if Defendants were not able to pay the full

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amount within three days, they must pay at least the $1,000 in

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contempt sanctions and any portion of the attorneys’ fees and

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costs that they were then able to pay.

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that, if Defendants made a partial payment, they must also file a

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financial affidavit disclosing all assets and liabilities, signed

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under penalty of perjury, and a proposed payment plan, within

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three days of the date of the order.

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that, if Defendants did not comply with the Court’s order within

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three days of the date of the order, they were ordered to show

The Court again ordered Defendants to pay Plaintiff

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The Court

The Court further ordered

Finally, the Court ordered

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cause why they should not be assessed $100 in contempt sanctions

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for every day, beginning July 21, 2014, that they do not comply

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with the Court’s order to pay contempt sanctions and fees.

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Defendants’ deadline to respond to the order to show cause was

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July 21, 2014, unless they complied with the order.

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Defendants have not responded to the order to show cause.

To date,

Plaintiff presents evidence that, on July 21, 2014,

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Defendants mailed to Plaintiff a letter stating, “Please find

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enclosed payment per orders issued by Judge Claudia Wilken, US

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United States District Court
For the Northern District of California

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District Court Judge, on June 30, 2014 in the above referenced

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case.

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Enclosed with the letter was a check for $16,622.15, with the

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words “PROMISSORY NOTE” printed across the face of the check.

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Plaintiff also presents evidence that it discovered

This constitutes payment in full.”

Docket No. 174, Ex. A.

Id.

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infringing internet search results on June 1, 2 and 3.

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174, Ex. B.

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no infringing results, internet searches on July 24 and 25, 2014

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again produced infringing results.

Although an internet search on June 4, 2014 produced

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Docket No.

Docket No. 174, Exs. C and D.

DISCUSSION
I.

Failure to Pay Previously Ordered Sanctions, Fees and Costs
The Court has three times ordered Defendants to pay the full

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$1,000 of contempt sanctions and either to pay $15,522.15 in

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attorneys’ fees and costs or to make a partial payment, propose a

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payment plan and provide a financial declaration.

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responded to the three orders with a total disregard for the

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Court’s instructions.

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Defendants have

In its July 15, 2014 order, the Court advised Defendants
that, if they failed to comply with the Court’s order, they must
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show cause why they should not be assessed $100 in contempt

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sanctions for every day, beginning July 21, 2014, that they do not

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comply with the Court’s order to pay contempt sanctions and fees.

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Defendants have failed to comply with the Court’s order or to

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respond to the order to show cause.

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again order Defendants to pay Plaintiff $16,522.15 in contempt

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sanctions and attorneys’ fees and costs.

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are ordered to pay an additional $100 per day in sanctions,

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beginning on the date of this order, through the date they pay

United States District Court
For the Northern District of California

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II.

In addition, Defendants

Plaintiff in full.

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Accordingly, the Court will

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Continued Failure to Comply with the Permanent Injunction
Plaintiff has produced evidence that internet searches on

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June 1, 2 and 3 and July 24 and 25 produced infringing results.

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In an order dated May 22, 2014, the Court granted Plaintiff’s

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motion for contempt sanctions and advised Defendants that it would

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impose sanctions of $1,000 per day that any infringing internet

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advertisements are found.

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awards Plaintiff an additional $5,000 in contempt sanctions.

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addition the Court orders Defendants to pay Plaintiff’s reasonable

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attorneys’ fees and costs expended in pursuing the July 25, 2014

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motion.

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directed to submit its attorneys’ billing records and hourly

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rates.

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response of no more than five pages, addressing any dispute with

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the amount of Plaintiff’s request for fees.

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Defendants’ response, Plaintiff may file a reply of no more than

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three pages.

Docket No. 159.

Accordingly, the Court
In

Within ten days of the date of this order, Plaintiff is

Within five days thereafter, Defendants may submit a

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Within five days of

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CONCLUSION

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For the reasons set forth above, Defendants are ordered to

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pay Plaintiff $21,522.15 in contempt sanctions and attorney’s

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fees.

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additional sanctions for failure timely to pay the previously

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ordered sanctions.

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until Defendants pay in full the $16,522.15 previously ordered to

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be paid.

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Plaintiff’s reasonable attorneys’ fees and costs expended in

Defendants are further ordered to pay $100 per day in

Defendants shall pay $100 per day in sanctions

In addition Defendants will be ordered to pay

United States District Court
For the Northern District of California

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pursuing its July 25 motion.

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judgment in favor of Plaintiff and against Defendants in the

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amount of $22,722.15.

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The Clerk of the Court shall enter a

Plaintiff may attempt to execute this judgment in accordance

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with state and federal law.

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an order directing www.yellowpages.com and www.freightnet.com to

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stop selling infringing advertisements to Defendants.

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Plaintiff is unable to locate any bank accounts or real or

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personal property upon which to execute the judgment, it may seek

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criminal contempt.

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in compliance with the requirements of due process and Federal

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Rule of Criminal Procedure 42.

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In addition, Plaintiff may move for

If

Any motion for criminal contempt must be made

IT IS SO ORDERED.

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Dated: 8/7/2014

CLAUDIA WILKEN
United States District Judge

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