Greenway Nutrients, Inc. v. Blackburn et al

Filing 125

ORDER denying 115 Motion for Sanctions and Indirect Criminal Contempt and 120 Motion to Hold Gus Escamilla and Marc Kent in Contempt of Court by Magistrate Judge Kathleen M. Tafoya on 2/26/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13BcvB01088BMSK BKMT

GREENWAY NUTRIENTS, INC.,
Plaintiff,
v.
STEVE BLACKBURN,
DAVID SELAKOVIC,
FULFILLMENT SOLUTIONS SERVICES, LLC,
SUPREME GROWERS, LLC,
Defendants.

ORDER

This matter is before the court on Defendants’ “Motion for Sanctions and Indirect Criminal
Contempt” (“Mot.”) [Doc. No. 115] filed July 23, 2014. Plaintiff filed its “Opposition to Motion
for Sanctions and Indirect Criminal Contempt” (“Resp.”) [Doc. No. 117] on August 6, 2014 and
Defendants filed their Reply [Doc. No. 118] on August 18, 2014. Several months later, non-party
Thomas Ryan filed a “Motion to Hold Gus Escamilla and Marc Kent in Contempt of Court” [Doc.
No. 120, filed October 6, 2014] together with a 4-page Affidavit of Thomas F. Ryan [Doc. Nos.
119 and 120-1] and numerous exhibits. 1 Plaintiff filed a “Renewed Opposition to Motion for

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This motion could be stricken outright as improperly filed by a non-party. Given its relation to

Sanctions and Indirect Criminal Contempt” after concluding that Thomas F. Ryan had “joined”
Defendants’ original motion. [Doc. No. 123.]
Defendants and Thomas Ryan contend that Gus Escamilla, owner of Plaintiff Greenway
Nutrients, has violated this Court’s July 12, 2013 Order prohibiting him from having any direct or
indirect communications with any of the defendants’ disclosed witnesses, which include Thomas
Ryan, his ex-wife Wendy Ryan and their daughter Jessica Campbell. (Minutes [Doc. No. 66].)
At the time the Order was entered, the court had required the personal appearance at a motions
hearing by Mr. and Mrs. Ryan, Steve Blackburn and Gus Escamilla, together with their attorneys,
to discuss threatening and harassing emails Mr. Escamilla admittedly was sending to defendants
and witnesses, including members of the Ryan family. An example of one of the representative
emails which prompted the actions of this court at the beginning of the case was sent by Mr.
Escamilla to [e-mail] on June 11, 2013 at 10:22 am, read
DO YOU “SEE” THESE FUCKEN IDIOTS??? YOUR ASSES ARE NEXT!!'
ONLY THIS IS NOT A CIVIL MATTER ANY LONGER!!!! IT'S CRIMINAL!!!!
BTW YOUR STUPID ASSES SHOULD READ THE THEFT OF TRADE
SECRETS ACT OF 2012, THE ECONOMIC ESPIONAGE ACT OF 1996, WIRE
FRAUD, MAIL FRAUD AND ON AND ON!!! JESSIE CAMPBELL AKA
JESSIE RYAN SHOULD GET TO KNOW THESE LAWS EXCEPTIONALLY
WELL!! !! I WONDER HOW LONG OR HOW MUCH PRESSURE SHE CAN
TAKE!!!! IM ABOUT TO FIND OUT!!!! SHE TOM AND ALL YOU MOTHER
FUCKEN IDIOTS ARE GUILTY AS FUCK!!!!! YOU STUPID STUPID
FOOLS!!!! IM GOING TO NAIL YOUR STUPID INGRATE ASSES !!!! YOUR
ALL FUCKED!!!! TOM YOUR A FOOL A STUPID STUPID PATHETIC
FOOL!!! !!
(“Motion for Sanctions and Protective Order” [Doc. No. 45] at 4.) The Ryans appeared as

the Defendants’ properly filed motion, however, and the history of this case and the proceedings
held in July 2013, the court will instead deal with the subject matter of the motion on its merits.
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ordered, telling this court they were afraid of Mr. Escamilla and felt that he might harm them.
Jessica Ryan, mentioned in the email noted by the court, appears to have no connection whatsoever
to the allegations of this case other than being the daughter of Thomas Ryan who once represented
Mr. Escamilla as an attorney.
Mr. Escamilla also personally appeared and admitted sending the emails which were
presented to the court. Mr. Escamilla explained his personal frustration experienced as a result of
his dealings with the persons involved in this litigation. Ultimately Mr. Escamilla apologized to
the court and stated that he would discontinue any further communications with the Ryans or any
other witness or defendant. The court vehemently reprimanded Mr. Escamilla and issued the
order that he cease and desist all contact, direct or indirect, with witnesses in the case.
This court heard nothing further about Mr. Escamilla’s alleged behavior until the instant
motion was filed a year later. Defendants and Mr. Ryan now complain that Mr. Escamilla is using
the internet to attack them, alleging that he has posted perverted and insulting items on internet
blog sites about Defendants David Selakovic and Steve Blackburn and attorney Charles Wender. 2

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The motion lists the following examples of internet postings, and provides photographic
evidence to support each one: (1) “Photograph of Selakovic imposed over texts stating that he is a
thief, homesexual [sic], con man, ‘Butt Pirate’”; (2) “Photograph of Blackburn with text ‘I Blow
David Selakovic! Hi, I’m Steve Blackburn and I’m an Inbred Pig-Nosed Face Pole Smoker’”; (3)
“Graphics with pictures of Selakovic as a ‘con-artist’”; (4) “Repeated photographs of Defendants’
counsel stating ‘Charles Wender- Ambulance Chaser’”; (4) “Photographs of Selakovic with his
wife”; (5) “Photographs of two naked men spanking one another, with Selakovic’s picture
superimposed and text ‘David, the Rear Admiral’ and ‘Selakovic Gets Spanked’” ; (6) “Repeated
accusations of Defendants being con men, thieves, reports to the FBI and the Palm Beach County
Sheriff’s Office”;(7) “Photographs of two naked men riding a bicycle with Selakovic and
Blackburn’s faces superimposed”; (8) “Photographs of Blackburn and his wife, with caption
‘Steve and Stacy Blackburn - West Palm Beach Counterfeit Scam Artists’”; (9) “Photograph of
Tom Ryan ‘spanking’ Attorney Charles Wender’ s naked buttocks”; (10) “Repeated accusations of
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Further, the defendants claim that Gus Escamilla has illegally usurped David Selakovic’s identity,
portraying himself as David Selakovic and sending false emails to Selakovic’s business associates
in order to harass and intimidate Mr. Selakovic. Defendants also allege that Mr. Escamilla has
filed baseless complaints with the Florida Bar attempting to jeopardize the law licenses of Mr.
Wender and Mr. Ryan.
Plaintiff, while not specifically denying involvement by Mr. Escamilla in the objectionable
behavior, states, “there has been no showing of proof or other evidence to connect Mr. Escamilla to
the challenged statements, posts, or emails.” (Resp. at 2.) In fact, Plaintiff alleges that one of the
posts containing the superimposed images of certain defendants in this case actually predated the
dispute between the parties which is at issue. Counsel for Plaintiff infers from this that someone
other than Mr. Escamilla may have had a dispute with the defendants and has posted the offending
internet blogs. (Id.)
LEGAL STANDARD
“There are two types of contempt: civil and criminal contempt.” Ernest v. Lockheed
Martin Corp., Civil Action No. 07–cv–02038–WYD–KLM, 2009 WL 1698505 at *3 (D. Colo.
June 16, 2009). “Federal Rule of Criminal Procedure 42 applies to criminal contempt. There is
no similar procedural rule for civil contempt.” Home Design Servs., Inc. v. B & B Custom Homes,
LLC, Civil Action No. 06–cv–00249–WYD–GJR, 2008 WL 927683 at *4 (D. Colo. Apr. 3, 2008).
Contempt power is found in 18 U.S.C. § 401, which states,
A court of the United States shall have power to punish by fine or imprisonment, at
Defendant Selakovic being the ‘Counterfeit Queen,’ ‘Con-Artist,’ ‘Kingpin,’ ‘Mastermind of
counterfeiting ring’”; and, (11) “Copy of Selakovic’s expired passport.” (Mot. at 3.)
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its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to
obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree,
or command.
18 U.S.C. § 401.
Courts have inherent power to enforce compliance with their lawful orders through civil
contempt. Shillitani v. United States, 384 U.S. 364, 370 (1966). Civil contempt “is a sanction to
enforce compliance with an order of the court or to compensate for losses or damages sustained by
reason of noncompliance.” Law v. National Collegiate Athletic Assoc., 134 F.3d 1438, 1442
(10th Cir.1998) (quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949)). The
remedial aspects of civil contempt outweigh the punitive considerations. Ager v. Jane C.
Stormont Hospital, 622 F.2d 496 (10th Cir. 1980). An order of civil contempt must be supported
by clear and convincing evidence establishing (1) the existence of a valid court order, (2) that the
contemnor had actual knowledge of the order, and (3) that the contemnor disobeyed the order.
F.T.C. v. Kuykendall, 371 F.3d 745, 756-57 (10th Cir. 2004); see Reliance Ins. Co. v. Mast Constr.
Co., 159 F.3d 1311, 1315 (10th Cir. 1998).
“Direct criminal contempt consists of contumacious conduct committed in the presence of
the court. An indirect criminal contempt consists of contumacious conduct directed to the court
but not committed in its presence.” Parkhurst v. United States Dep’t of Educ., 9 Fed. Appx. 900,
904 (10th Cir. May 25, 2001) (unpublished)(internal citations omitted). Indirect criminal
contempt is “intentional obstructions of court proceedings that literally disrupted the progress of
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the trial and hence the orderly administration of justice.” United States v. Wilson, 421 U.S. 309,
315-16 (1975)).
The contempt power which allows a court to punish as criminal contempt misbehavior of
any person in its presence or so near thereto as to obstruct the administration of justice, cannot be
used, however, to punish a person for committing illegal acts without the additional showing that
the illegality is part of some greater design to interfere with judicial proceedings. See United
States v. Dunnigan, 507 U.S. 87, 93 (1993); In re Michael, 326 U.S. 224, 228 (1945).
In addition to contempt authority, the Court can “enjoin litigants who abuse the court
system by harassing their opponents pursuant to 28 U.S.C. § 1651(a).” Stine v. Lappin, Civil
Action No. 07–cv–01839–WYD–KLM, 2009 WL 9070970 at *15 (D. Colo. June 25, 2009)
(quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). Indeed, “[t]here is a strong
precedent establishing the inherent power of federal courts to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under the appropriate circumstances.” Cotner
v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986). To this end, “‘even onerous conditions’ may be
imposed upon a litigant as long as they are designed to assist the district court in curbing the
particular abusive behavior involved.” Id. (quoting Carter v. United States, 733 F.2d 735, 737
(10th Cir.1984)).
ANALYSIS
Gus Escamilla, one of the owners of Plaintiff Greenway Nutrients, is not an individual
party to this action, which primarily involves claims by Greenway Nutrients for trademark
infringement and extra-contractual damages in connection with a business deal gone bad.
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Missing from the assertions in the pending motions and in all the Affidavits is any allegation that
non-party Escamilla is misusing the court process to carry out a vendetta against Mr. Selakovic
and/or Mr. Ryan, the non-party former lawyer of Mr. Escamilla. The allegations are that Mr.
Escamilla is libeling Mr. Selakovic and others by posting lewd pictures and obscene comments in
blogs on the internet and that Mr. Escamilla has stolen Mr. Selakovic’s electronic identity in order
to harm Mr. Selakovic’s reputation with his business associates. Further, it is alleged that Mr.
Escamilla has filed false and frivolous complaints with the Florida state bar against Mr. Wender,
the attorney for defendants in this action and Mr. Ryan. 3

Defamation, including both libel and

slander, can be both a crime and grounds for a civil suit seeking damages. Should any of the
alleged victims wish to address the actions they attribute to Mr. Escamilla, they could file civil
actions against him in the appropriate jurisdiction. That jurisdiction, however, would almost
undoubtedly not be a Colorado federal court since none of the parties reside here and no alleged
actions were undertaken in this state. Further, the alleged victims could file complaints with the
appropriate law enforcement agencies to try to prevent and/or punish the alleged harassment.
Federal charges might even be brought if the allegations were fully investigated and found to be
sustainable against Mr. Escamilla. But this presumes investigation and the gathering of evidence,
not merely accusation and presumption.
Because no one, rich or poor, is entitled to abuse the judicial process, the Court brought
both parties and non-parties together in July, 2013 and reprimanded Mr. Escamilla for sending
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Defendants allege that shortly after Mr. Escamilla filed the attorney grievances, he posted blogs
on the internet asserting that the two attorneys were under investigation by the Florida Bar,
allegedly in an attempt to damage them both professionally and personally.
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abusive emails to persons integral to this litigation and received both his apology and promise to
discontinue his activity. See Tripati, 878 F.2d at 353 (noting that “the right of access to the courts
is neither absolute nor unconditional . . . [and] there is no constitutional right . . . to prosecute an
action that is frivolous or malicious”) (citation omitted)). The court, however, is not in any
position to investigate alleged criminal activity, especially criminal activity which is not being
undertaken as part of the case. Plaintiff Greenway Nutrients is represented by competent
attorneys who are conducting their case in the manner the court expects by filing motions or
responding to the same and otherwise prosecuting the company’s civil claims. And while the
court remembers with distaste the hearing where Mr. Escamilla and Mr. Ryan and his family were
present, this court’s admonition against Mr. Escamilla’s threatening emails - which were signed
and which Mr. Escamilla admitted he had sent - is simply not comparable to the activities
Defendants and Mr. Ryan are now asking the court to punish. There is no clear evidence before
this court that Mr. Escamilla is actually behind the internet postings and, even if there was, the
court finds that the activities, while odious, are not contumacious of the court’s orders or to the
court proceedings. If true, the activities may be in violation of criminal law which should be
addressed, if at all, by a criminal court or which may provide grounds for a civil action in the
appropriate jurisdiction.
Finally, it is well within Mr. Escamilla’s rights to file an attorney grievance with a bar
association against an attorney. The Florida state bar proceedings are the appropriate place to
challenge the allegations against any attorneys licensed in that state -- not here in Colorado in the
context of a federal civil action.
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Therefore, while this court does not approve of or condone the behavior against which the
defendants rail, this court must nevertheless deny the motions to find the Plaintiff, Greenway
Nutrients, in contempt of court.
It is ORDERED
Defendants’ “Motion for Sanctions and Indirect Criminal Contempt” (“Mot.”) [Doc. No.
115] and Thomas Ryan’s “Motion to Hold Gus Escamilla and Marc Kent in Contempt of Court”
[Doc. No. 120] are DENIED.
Dated this 26th day of February, 2015.

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