American Registry of Radiologic Technologists v. Moultry

Filing 41

ORDER: (1) Granting 40 Plaintiff's Motion for Order to Show Cause; (2) Setting Order to Show Cause hearing date and briefing schedule. Signed by Judge John A. Houston on 3/17/2022. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE AMERICAN REGISTRY OF
RADIOLOGIC TECHNOLOGISTS,

Case No.: 3:16-CV-1322-JAH-KSC
ORDER:

Plaintiff,
v.

1. GRANTING PLAINTIFF’S
MOTION FOR ORDER TO SHOW
CAUSE (ECF No. 40)

KEITH MOULTRY,
Defendant.

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2. SETTING ORDER TO SHOW
CAUSE HEARING DATE AND
BRIEFING SCHEDULE

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I.

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INTRODUCTION

This matter comes before the Court on Plaintiff’s Motion for Order to Show Cause
(“OSC”). Pursuant to its Motion, the American Registry of Radiologic Technologists
(“ARRT” or “Plaintiff”) seeks an Order directing Defendant Keith Moultry (“Moultry” or
“Defendant”) to appear and show cause why he should not be held in civil and criminal
contempt of court for refusing to comply with the Court’s August 14, 2017 and March 17,
2021 orders, and for such other relief as this Court deems just and proper. (Ex. 1; ECF No.
40).1

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Taking into account the Defendant’s pro se status, the Court attaches as exhibits any prior docket
entries referenced herein.
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3:16-CV-1322-JAH-KSC

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II.

BACKGROUND

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On August 14, 2017, the Court ordered that (1) final judgment is entered in favor of

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Plaintiff and against Defendant; (2) Plaintiff shall recover certain costs and attorneys’ fees;

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(3) Defendant is permanently enjoined from directly or indirectly using, reproducing,

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copying, or imitating the ARRT® trademarks, service marks, certification marks, or any

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other mark, word, or name similar to the ARRT® trademark; (4) Defendant will deliver

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materials in his possession, custody, or control bearing, containing, or using the ARRT®

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trademark, service marks, or certification marks; (5) Defendant will file a written report

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made under oath detailing his compliance with the order within thirty days of service of

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the August 14, 2017 Order; and (6) if Defendant violates the August 14, 2017 Order,

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Defendant will be liable for all attorneys’ fees reasonably incurred in any action to enforce

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this order or to otherwise remedy such violations. (Ex. 2; ECF 19 at 2-3).

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On March 17, 2021, the Court reaffirmed its August 14, 2017 final judgment in favor

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of the Plaintiff, and held that the August 14, 2017 Order’s six requirements remain in place.

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(Ex. 3; ECF No. 39 at 2).

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III.

DISCUSSION

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Plaintiff seeks an Order directing Defendant to show cause why he should not be

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held in civil and criminal contempt of Court for refusing to comply with the Court’s prior

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Orders. “District courts have the power to punish disobedience to court orders by civil

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contempt . . . and criminal contempt.” United States v. Rose, 806 F.2d 931, 933 (9th Cir.

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1986) (citations omitted). Civil contempt “is designed to induce compliance with a court

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order”, while criminal contempt “serves to vindicate the authority of the court[.]” Id.

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(citing United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980)). Civil contempt is

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warranted where the opposing party shows “by clear and convincing evidence that the

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contemnors violated a specific and definite order of the court.” Knupfer v. Lindblae (In re

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Dryer), 322 F.3d 1178, 1191 (9th Cir. 2003).

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disobedience of a clear and definite court order.” Rose, 806 F.2d at 933 (citing Powers,

Criminal contempt “requires willful

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3:16-CV-1322-JAH-KSC

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629 F.2d at 627). “The same conduct may result in both civil and criminal contempt

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charges.” Id. (citing Powers, 629 F.2d at 627).

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Plaintiff alleges that Defendant has failed to comply with any of the requirements

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set forth in the Court’s August 14, 2017 and March 17, 2021 Orders. (Ex. 1; ECF No. 40-

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1 at 1). According to Plaintiff, “Defendant has not contacted counsel for ARRT, delivered

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ARRT trademarked materials, arranged to pay attorneys’ fees, or otherwise taken any

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reasonable steps to comply with the Court’s August 14, 2017 and March 17, 2021 Orders.”

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(Id. at 2). Most importantly, ARRT alleges that Defendant “continues to represent to

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Southern California employers” that “he is an . . . ARRT . . . registered and certified

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radiologic technologist, which he is not.” (Ex. 1; ECF No. 40-1 at 1). On September 7,

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2021, ARRT was notified by Quality Temp Staffing that Defendant, using the aliases

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“Keith Miller” and “Kevin Miller”, applied for employment and stated that he is “ARRT

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certified” on his resume. (Id. at 3; Kummer Decl. ¶¶ 7-11). ARRT has attached a

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purportedly true and correct copy of the resume submitted by Defendant to Quality Temp

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Staffing as Exhibit A to the Declaration of Barbara Kummer.

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Based upon a review of the motion, record, and proceedings herein, the Court

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GRANTS Plaintiff’s Motion for an Order to Show Cause; orders Defendant Keith Moultry

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to respond to Plaintiff’s motion and show cause why he should not be held in civil and

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criminal contempt of court; and sets a briefing schedule as detailed below.

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3:16-CV-1322-JAH-KSC

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IT IS HEREBY ORDERED:

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1. Plaintiff ARRT’s Motion for an OSC against Defendant Moultry is GRANTED.

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2. Plaintiff ARRT shall (1) serve a copy of this Order and exhibits, along with

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Plaintiff’s motion and supporting exhibits, upon Defendant Moultry, and (2) file a

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certificate of service upon doing so.

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3. Defendant Moultry shall file a response and show cause why he should not be held
in contempt of court within 15 business days from the date of service.
4. Defendant Moultry shall also file a notice containing his current address and phone
number within 7 business days form the date of service.
5. Plaintiff may file a reply, if any, to Defendant’s response within 8 business days
from the date Defendant Moultry files his response.

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6. The Court will set a hearing date upon the filing of Defendant’s response. In the

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event Defendant fails to respond to this Order as required, the Court will issue

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additional Orders as provided by law and/or sanctions as the Court deems

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appropriate to address Defendant Moultry’s failure to respond.

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DATED:

March 17, 2022

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_________________________________
HON. JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE

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3:16-CV-1322-JAH-KSC

Ex. 1

Case 3:16-cv-01322-JAH-KSC Document 40 Filed 10/25/21 PageID.273 Page 1 of 3

Case 3:16-cv-01322-JAH-KSC Document 40 Filed 10/25/21 PageID.274 Page 2 of 3

Case 3:16-cv-01322-JAH-KSC Document 40 Filed 10/25/21 PageID.275 Page 3 of 3

Case 3:16-cv-01322-JAH-KSC Document 40-1 Filed 10/25/21 PageID.276 Page 1 of 7

Case 3:16-cv-01322-JAH-KSC Document 40-1 Filed 10/25/21 PageID.277 Page 2 of 7

Case 3:16-cv-01322-JAH-KSC Document 40-1 Filed 10/25/21 PageID.278 Page 3 of 7

Case 3:16-cv-01322-JAH-KSC Document 40-1 Filed 10/25/21 PageID.279 Page 4 of 7

Case 3:16-cv-01322-JAH-KSC Document 40-1 Filed 10/25/21 PageID.280 Page 5 of 7

Case 3:16-cv-01322-JAH-KSC Document 40-1 Filed 10/25/21 PageID.281 Page 6 of 7

Case 3:16-cv-01322-JAH-KSC Document 40-1 Filed 10/25/21 PageID.282 Page 7 of 7

Case 3:16-cv-01322-JAH-KSC Document 40-2 Filed 10/25/21 PageID.283 Page 1 of 9

Case 3:16-cv-01322-JAH-KSC Document 40-2 Filed 10/25/21 PageID.284 Page 2 of 9

Case 3:16-cv-01322-JAH-KSC Document 40-2 Filed 10/25/21 PageID.285 Page 3 of 9

Case 3:16-cv-01322-JAH-KSC Document 40-2 Filed 10/25/21 PageID.286 Page 4 of 9

Case 3:16-cv-01322-JAH-KSC Document 40-2 Filed 10/25/21 PageID.288 Page 6 of 9

Case 3:16-cv-01322-JAH-KSC Document 40-2 Filed 10/25/21 PageID.290 Page 8 of 9

Case 3:16-cv-01322-JAH-KSC Document 40-2 Filed 10/25/21 PageID.291 Page 9 of 9

Ex. 2

Case 3:16-cv-01322-JAH-KSC Document 19 Filed 08/14/17 PageID.260 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE AMERICAN REGISTRY OF
RADIOLOGIC TECHNOLOGISTS,

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ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR
ENTRY OF DEFAULT JUDGMENT
[DOC. NO. 7]

Plaintiff,

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Case No.: 16cv1322-JAH (KSC)

v.
KEITH MOULTRY
Defendant.

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This mater comes before the Court on Plaintiff American Registry of Radiologic

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Technologists’ (“Plaintiff” or “ARRT”) unopposed motion for entry of default judgment

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against Defendant Keith Moultry. See Doc. No. 7. After careful consideration of the entire

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record, including Plaintiff’s motion, declarations in support, and supplemental briefing, the

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Court finds that Plaintiff’s trademark dilution claims weigh in favor of entering default

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judgement.1 Accordingly, it is HEREBY ORDERED that (1) Plaintiff’s request for

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The Court finds persuasive the Second Circuit decision in ISC, Inc. v. Security
University, LLC, 823 F.3d 153, 163 (2nd Cir. 2016) (holding, inter alia, that “[t]wo of the
most well-established examples of infringement of a certification mark are: the use of the
mark in a resume of a professional who is in fact not certified by the organization that is
the owner of the mark[.]” (internal quotations omitted)).
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16cv1322-JAH (KSC)

Case 3:16-cv-01322-JAH-KSC Document 19 Filed 08/14/17 PageID.261 Page 2 of 3

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judicial notice is GRANTED;2 and (2) Plaintiff’s motion for default judgment against

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Keith Moultry is GRANTED.

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Accordingly, it s HEREBY ORDERED AND ADJUDGED that:

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1.

Final judgment is entered in favor of Plaintiff and against Defendant;

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2.

Plaintiff shall recover from Defendant costs in the amount of $4,500.03 and

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attorneys’ fees in the amount of $20,721.00 pursuant to 15 U.S.C. § 1117(a);
3.

Defendant is permanently enjoined, pursuant to 15 U.S.C. § 1116, from

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directly or indirectly using, reproducing, copying, or imitating the ARRT® trademarks,

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service marks, certification marks, or any other mark, word, or name similar to the ARRT®

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trademark, which is likely to cause confusion, mistake or to deceive;
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Defendant is ordered, pursuant to 15 U.S.C. § 1118 to deliver to ARRT all

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materials in his possession, custody, or control bearing, containing or using the ARRT®

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trademark, service marks, or certification marks;

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5.

Defendant is ordered to file with the Court and serve on ARRT within thirty

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(30) days after the service on Defendant of this Order, a written report, made under oath,

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setting forth in detail the manner and form in which Defendant has complied with this

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Order;

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Plaintiff asks the Court to take judicial notice of two exhibits filed in support of its
supplemental briefing. See Doc. No. 17. Exhibit A is a copy of the opinion issued in The
American Registry of Radiologic Technologists v. Sisk, Case No. 2:14-6403 (WJM)
(D.N.J., filed March 3, 2015), and Exhibit B is a copy of this Court’s January, 2013 Order
granting ARRT’s motion for default judgment in The American Registry of Radiologic
Technologists v. McAdams, 12-CV-01761-JAH (WMC). Id. Because Exhibits A-B are
publicly recorded and accessible whose accuracy cannot be reasonably questioned, this
Court deems it appropriate to take judicial notice of Exhibits A and B. See Fed. R. Evid.
201(b); Anderson v. Holder, 673 F.3d 1089, 1094, n.1 (9th Cir. 2012); Caldwell v.
Caldwell, 2006 WL 618511, *4 (N.D. Cal., 2006).
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16cv1322-JAH (KSC)

Case 3:16-cv-01322-JAH-KSC Document 19 Filed 08/14/17 PageID.262 Page 3 of 3

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6.

If at any future time Defendant is found to have violated this Order, he shall

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be liable for all attorneys’ fees reasonably incurred in any action to enforce this Order or

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otherwise remedy such violation.

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IT IS SO ORDERED.

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DATED: August 14, 2017
_________________________________
JOHN A. HOUSTON
United States District Judge

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16cv1322-JAH (KSC)

Ex. 3

Case 3:16-cv-01322-JAH-KSC Document 39 Filed 03/17/21 PageID.271 Page 1 of 2

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE AMERICAN REGISTRY OF
RADIOLOGIC TECHNOLOGISTS,

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ORDER REAFFIRMING DEFAULT
JUDGMENT

Plaintiff,
v.
KEITH MOULTRY,
Defendant.

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Case No.: 16cv1322-JAH-KSC

On January 27, 2017, Plaintiff, The American Registry of Radiologic Technologists
(“ARRT”) filed a motion requesting the Court enter a Default Judgment against Defendant
Keith Moultry (“Defendant”) after Defendant failed to appear, answer, or otherwise
respond to Plaintiff’s complaint. See Doc. No. 7. Defendant failed to respond to Plaintiff’s
motion for a Default Judgment and thereafter failed to respond to Plaintiff’s subsequent
motions to hold Defendant in Contempt of Court for failing to appear or respond to
Plaintiff’s filings. This Court entered a Default Judgment against Defendant on August 14,
2017. See Doc. No. 20.
On September 14, 2020, the Defendant appeared telephonically for a status
conference, wherein he claimed he never received any of the Plaintiff’s filings dating back
to the initial Motion for Default Judgment. At the Court’s direction, Plaintiff served the
Defendant copies of the initial Complaint, Motion for Default Judgment, and the Order
Granting Default Judgment, and other key filings on September 22, 2020. See Doc. No. 37.
On October 13, 2020 this Court gave Defendant until November 25, 2020 to (1)
respond to Plaintiff’s Motion for Default Judgment, or (2) file a motion to set aside the
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16cv1322-JAH-KSC

Case 3:16-cv-01322-JAH-KSC Document 39 Filed 03/17/21 PageID.272 Page 2 of 2

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default judgment. See Doc. No. 38. No response having been filed by Defendant, IT IS

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HEREBY ORDERED that the prior final judgment is reaffirmed in favor of Plaintiff and

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against Defendant.

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Accordingly, the requirements of that Judgment remain in place. For convenience,
they are restated as follows:

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1.

Final judgment is entered in favor of Plaintiff and against Defendant;

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2.

Plaintiff shall recover from Defendant costs in the amount of $4,500.03 and

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attorneys’ fees in the amount of $20,721.00 pursuant to 15 U.S.C. § 1117(a);
3.

Defendant is permanently enjoined, pursuant to 15 U.S.C. § 1116, from

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directly or indirectly using, reproducing, copying, or imitating the ARRT® trademarks,

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service marks, certification marks, or any other mark, word, or name similar to the

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ARRT® trademark, which is likely to cause confusion, mistake or to deceive;

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4.

Defendant is ordered, pursuant to 15 U.S.C. § 1118 to deliver to ARRT all

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materials in his possession, custody, or control bearing, containing or using the ARRT®

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trademark, service marks, or certification marks;

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5.

Defendant is ordered to file with the Court and serve on ARRT within thirty

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(30) days after the service on Defendant of this Order, a written report, made under oath,

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setting forth in detail the manner and form in which Defendant has complied with this

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Order;

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6.

If at any future time Defendant is found to have violated this Order, he shall

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be liable for all attorneys’ fees reasonably incurred in any action to enforce this Order

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or otherwise remedy such violation.

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IT IS SO ORDERED.

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DATED: March 17, 2021

_________________________________
JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE

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