Green v. LifeVest Publishing, Inc. et al

Filing 63

ORDER granting in part and denying in part 56 Joint Status Report and Motion to Enter Final Stipulated Order, Deny Motion to Dismiss, and Administratively Close Case. Denying without prejudice 49 Motion to Dismiss Counterclaim and Brief in Suppo rt Thereof. This case is administratively closed and is subject to reopening for any default, breach, or other non-compliance with respect to the Settlement Agreement. Parties shall file a status report by 9/2/2011, advising the Court whether this case can be dismissed. This Order supersedes the Order Extending Temporary Restraining Order 28 . Defendants shall destroy any copies of Heart of a Warrior, Dispatches from the Front, in any format or medium as set forth in this Order. Defendants shall destroy any copies of Ian Weikel's prayer journals in any format or medium, as set forth in this Order. Defendants and each of their officers, agents, etc. are permanently enjoined and restrained from reproducing, printing, etc. Warrior, the Journals, or Green or Jonathan Weikel's name or likeness as set forth in this Order. Within 10 business days of entry of this Order, the Weikels shall request the U.S. Copyright Office to cancel the copyright registration as set forth in t his Order. The Order dated April 30, 2009 granting Motion to Seal remains in full force and effect. Notwithstanding the administrative closure or dismissal of this case, the Court retains jurisdiction to enforce the terms of this Order or resolve any disputes or controversies in connection with the Settlement Agreement, by Judge Philip A. Brimmer on 9/9/09. (ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action File No. 09-cv-00925-PAB-MEH W ENDY GREEN, individually and as guardian for Jonathan Weikel, Plaintiff, v. LIFEVEST PUBLISHING, INC., BRENDA SIMMONS, DAVID WEIKEL, BETH WEIKEL, and BY HIS DESIGN, LLC, Defendants. _________________________________________ DAVID WEIKEL, BETH WEIKEL, and BY HIS DESIGN, LLC, Counterclaimants, v. W ENDY GREEN, individually, Counterclaim Defendant. _________________________________________ LIFEVEST PUBLISHING, INC., Crossclaimant, v. DAVID WEIKEL, BETH WEIKEL, and BY HIS DESIGN, LLC, Crossclaim Defendants.

______________________________________________________________________ ORDER ______________________________________________________________________ THIS MATTER comes before the Court on the Joint Status Report and Motion by Plaintiff and Defendants to (i) Enter Final Stipulated Order; (ii) Deny Motion to Dismiss; and (iii) Administratively Close Case (the "Motion") [Docket No. 56], dated August 20, 2009, filed by plaintiff Wendy Green, individually and as guardian for Jonathan Weikel (collectively, "Green") against David Weikel, Beth Weikel, and By His Design, LLC (collectively, the "Weikels"); and LifeVest Publishing, Inc. ("LifeVest") and Brenda Simmons. The Weikels, LifeVest, and Ms. Simmons are each defendants and will be collectively referred to herein as "Defendants"; Green and Defendants are collectively referred to herein as the "Parties." The Court, having considered the Motion and the Settlement Agreement, attached hereto as Exhibit 1, and being otherwise fully advised in the premises, ORDERS as follows: 1. 2. The Motion [Docket No. 56] is GRANTED in part and DENIED in part. The Motion by Counterclaim Defendant Wendy Green to Dismiss

Counterclaim and Brief in Support Thereon [Docket No. 49] is denied without prejudice. 3. This case is administratively closed pursuant to D.C.COLO.LCivR 41.2 and

is subject to reopening for any default, breach, or other non-compliance with respect to the Settlement Agreement by and among Green, David Weikel, Beth Weikel, By His Design, LLC, By His Design Trust, Southwest Investment Properties, LLC, LifeVest -2-

Publishing, Inc., and Brenda Simmons (the "Settlement Agreement"), or this Order. The parties shall file a status report on or before September 2, 2011, advising the Court whether this case can be dismissed. 4. This Order supersedes the Order Extending Temporary Restraining Order

[Docket No. 28] dated May 22, 2009. 5. Defendants shall destroy any copies of Heart of a Warrior, Dispatches

from the Front ("Warrior"), in any format or medium, in whole or in part, that are in Defendants' possession or control, whether directly or through third parties, including counsel, that Defendants locate in the future. Defendants shall notify Green through her counsel within three business days of any facts they learn or become aware of concerning the existence and/or location of any outstanding copies of Warrior, including the following contact information concerning the holder of such copies, if available: (i) name; (ii) physical and email addresses; and (iii) telephone and facsimile numbers. 6. Defendants shall destroy any copies of Ian Weikel's prayer journals (the

"Journals") in any format or medium, in whole or in part, that are in Defendants' possession or control, whether directly or through third parties, including counsel, that Defendants locate in the future. Defendants shall notify Green through her counsel within three business days of any facts they learn or become aware of concerning the existence and/or location of any outstanding copies of the Journals, including the following contact information concerning the holder of such copies, if available: (i) name; (ii) physical and email addresses; and (iii) telephone and facsimile numbers. -3-

Notwithstanding anything to the contrary in this paragraph, Green and/or Green's Agents (defined as including principals, officers, servants, employees, attorneys-in-fact, attorneys at law, contractors, consultants, distributors, and any and all persons under the control or in active concert or participation with Green, jointly or severally) may reproduce, print, distribute, or set out in any format or medium, in whole or in part, the Journals, and act in any other manner consistent with her ownership in the Journals. 7. Pursuant to 17 U.S.C. § 502, and in order to protect Green's copyright to

the Journals, Defendants and each of their officers, agents, servants, employees, and attorneys, and any and all persons who are in active concert or participation with Defendants, jointly or severally, are permanently enjoined and restrained from reproducing, printing, distributing, or setting out in any format or medium, in whole or in part, Warrior, the Journals, or Green or Jonathan Weikel's name or likeness, including in pictures and written communications to or from Green or Jonathan Weikel, or any other publication with protectable elements of Warrior, the Journals, or Green or Jonathan Weikel's name or likeness, including making any of the foregoing available on the Internet via an "e-book" file or otherwise. 8. W ithin 10 business days of entry of this Order, pursuant to 37 C.F.R.

§ 201.7(c)(4)(vi), the Weikels shall request the U.S. Copyright Office to cancel the copyright registration TXu001591692 for the work entitled Heart of a Warrior, Dispatches from the Front, because the Weikels, in particular defendant Beth Weikel, the named copyright claimant, are not the rightful owners of the copyright in the -4-

work Warrior. The Weikels shall provide evidence of their efforts to cancel the copyright to Green through her counsel within 15 business days of entry of this Order. 9. On April 30, 2009, the Court entered its Order Granting Motion to Seal

[Docket No. 15], in which it placed under seal Exhibits 3 and 5 to the Complaint for Damages and Injunctive Relief [Docket No. 1]. The Order Granting Motion to Seal shall remain in full force and effect. 10. Notwithstanding the administrative closure or dismissal of this case, the

Court retains jurisdiction to (i) enforce the terms of this Order or (ii) resolve any disputes or controversies in connection with the Settlement Agreement. DATED September 9, 2009. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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