AMERICAN PETROLEUM INSTITUTE v. BULLSEYE AUTOMOTIVE PRODUCTS INC. et al

Filing 172

REPORT AND RECOMMENDATIONS re 120 MOTION for Reconsideration re 116 be granted, and that the Bullseye Automotive Products Inc and Bullseye Lubricants Inc be found in civil contempt for failing to comply with the Injunction (see Order). Signed by Magistrate Judge Denise K. LaRue on 12/5/2016 (dist made)(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AMERICAN PETROLEUM INSTITUTE,
Plaintiffs,
vs.
BULLSEYE AUTOMOTIVE PRODUCT
INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 1:13-cv-1112-TWP-DKL

Report and Recommendation
Regarding Motion to Reconsider Denial of Plaintiff’s Motion to Hold Defendants in Contempt
[doc. 120]
Plaintiff’s Motion to Reconsider Order Denying Plaintiff’s Motion to Hold Defendants
in Contempt is before the Court, having been referred by the Honorable Tanya Walton
Pratt, District Judge. The Magistrate Judge’s contempt authority is set forth in 28 U.S.C.
§ 636(e). Since the parties have not consented to the Magistrate Judge’s jurisdiction, the
undersigned makes a report and recommendation certifying the following facts to the
District Judge who has the authority to punish contempt. See id. § 636(e)(6)(B)(iii).
Findings of Fact
1. On October 31, 2014, this Court entered its Default Judgment for Permanent
Injunction Against Bullseye Automotive Products Inc. and Bullseye Lubricants Inc. [doc. 99] (the
“Injunction”).
2. Pursuant to the Injunction, Defendants (“Bullseye”) were permanently enjoined
from using in any form or manner the APO Starburst, the name and mark American

Petroleum Institute, the name and mark API, and any confusingly similar marks or
names, including the Counterfeit Starburst and the Second Counterfeit Starburst depicted
in the Injunction, and also were ordered, inter alia, to:
(a) Issue, by no later than November 3, 2014, corrective advertising and publish
in one major newspaper of general circulation in Chicago, Illinois, in one major
newspaper of general circulation in Detroit, Michigan, and in one major
newspaper of general circulation in Indianapolis, Indiana, as well as in the trade
publications titled Lubes and Greases Magazine, NACS Magazine, and ILMA
Compounding Magazine, the Notice set forth in the Injunction;
(b) Send the Notice directly to all distributors who have purchased Bullseye
products bearing the complained-of labels and refund the distributors the full
purchase price for all products bearing the complained-of labels that the distributors
return to Bullseye; and
(c) File with the Court, no later than November 10, 2014, a verified certification
of compliance with the Injunction.
[Default J. for Permanent Inj., doc. 99 at 2-4.]
3. Also on October 31, 2014, the Court entered a Judgment for Damages Against
Bullseye Automotive Products Inc. and Bullseye Lubricants Inc. [doc. 100], ordering Bullseye
to pay damages to American Petroleum Institute (“API”) in the amount of $1,827,674 with
post-judgment interest to accrue at the highest rate permitted by law until paid in full.
4. On November 3, 2014, API’s counsel sent a letter by FedEx to Bullseye’s
President, Carlos Silva, summarizing and enclosing a copy of the Injunction, which
2

was delivered to Silva’s residence on November 5, 2014; a copy of the letter and its
attachments were emailed to Silva on November 11, 2014. [See B. Brett Heavner
Declaration, doc. 104-1, ¶ 2.] The physical address and email address API’s counsel used
were the same addresses that Silva provided during his deposition on January 10, 2014.
[Id., doc. 104-1, ¶ 4 & Ex. C.]
5. Bullseye failed to comply with the Injunction by:
(a) Failing to publish the Notice in one major newspaper of general circulation in
Chicago, Illinois, in one major newspaper of general circulation in Detroit, Michigan,
and in one major newspaper of general circulation in Indianapolis, Indiana, as well as
in the trade publications titled Lubes and Greases Magazine, NACS Magazine and ILMA
Compounding Magazine [see Decl. of Emily Florio, doc. 104-2, ¶¶ 3-11]; and
(b) Failing to file with this Court a verified certification of their compliance with
the Injunction, which was due by November 10, 2014.
6. Bullseye also failed to comply with other provisions of the Injunction, as shown
by the following:
(a) On November 17, 2014, a week after Bullseye was required to file the verified
certification, Bullseye engine oil bearing a label with the complained-of infringing
imitation of the API Starburst mark was being offered for sale on the Wholesale Motor
Oil website, www.vkwholesale.com/motor-oil-12-pk.htm [Heavner Decl., doc. 104-1,
¶ 6 & Exs. D-E.]
(b) The image of the infringing Bullseye label remained on the website as of
December 26, 2014. [Id.]
3

(c) And on January 28, 2015, an internet search located at least one distributor of
automotive

products,

Premier

International,

Inc.

of

Eastlake,

Ohio

(www.dollarstoredist.com), whose website displayed a photograph of Bullseye’s
motor

oil

bearing

the

infringed

trademark

at

the

following

URL:

http://dollarstoredist.com/popup_image.php?pID=18319. [Id., ¶ 7 & Ex. F.]
7. On April 21, 2015, API filed a Verified Motion for Proceedings Supplemental [doc.
103] and Plaintiff’s Motion to Hold Defendants in Contempt [doc. 104], requesting that the
Court hold Bullseye in civil contempt for violating the Injunction, and enter coercive
sanctions to induce Bullseye’s compliance with the Injunction in the future and remedial
sanctions to compensate API for Bullseye’s non-compliance, including an award to API of
its reasonable attorney fees and costs.
8. On May 26, 2015, the undersigned held an evidentiary hearing on both motions
at which Silva presented sworn testimony that:
(a) Bullseye was officially dissolved in August 2014, before the Injunction was
entered;
(b) Bullseye paid him less than $28,000 in 2014;
(c) After its dissolution, Bullseye had no assets, inventory, or funds left to pay for
publishing corrective advertising, sending notices to its distributors, making refunds
for returned products, or otherwise doing the things that Bullseye was ordered to do
pursuant to the Injunction; and
(d) Silva did receive a copy of the Injunction, but when he received it, Bullseye had
no funds left to do the things the Injunction ordered Bullseye to do.
4

9. In support of the testimony that Bullseye had no funds to pay for
publishing corrective advertising, etc., defense counsel Peter Limperis gave API’s
counsel prior to the hearing copies of Bullseye’s 2013 and 2014 corporate tax
returns; counsel also argued that because Bullseye had been dissolved before the
Injunction was entered and because Bullseye had no funds to pay for corrective
advertising, etc., it should not be held in contempt of court for not complying with
the Injunction.
10. “In light of the testimony given,” the Court denied the contempt motion.
[Entry from Proceedings Supplemental Hrg., doc. 116 at 1.]
11.

API subsequently filed a Renewed Verified Motion for Proceedings

Supplemental [doc. 118] and Motion to Reconsider Order Denying Plaintiff’s Motion to
Hold Defendants in Contempt [doc. 120].
12.

After several continuances, on February 22, 2016, the Court held a

combined hearing on the motions. [See doc. 148.] Plaintiff advised the Court that
it would not pursue proceedings supplemental at that time and presented
testimony in support of its Motion to Reconsider. Silva presented sworn testimony.
13. The Illinois Secretary of State’s website shows that Bullseye was not
dissolved until April 10, 2015. [See 2/22/16 Mot. Hrg., Ex. 1, Carlos Silva Dep. 1/18/16,
Ex. 1; see also doc. 120-1.]
14. Furthermore, API has presented evidence that Silva’s testimony that
Bullseye had no funds to pay for publishing corrective advertising, etc. was false.
(a) A copy of Bullseye’s 2013 tax return, attached to the Motion to Reconsider as
5

Exhibit B, reflects that in 2013 Bullseye had gross receipts or sales of $370,882 and a
taxable income of -$777. [See doc. 120-2 at 2.]
(b) The Affidavit of W. Todd Schoettelkotte, API’s damages expert, reflects
that Bullseye’s sales of the accused engine oil products for January through September
2013 was actually $615,921. [Schoettelkotte Aff., doc. 93-1 at 2, ¶ 4 & 5, ¶ 8.]
(c) Thus, it appears that Bullseye failed to report more than $245,000 in sales
on its 2013 federal tax return.
(d) The affidavit also reflects that Bullseye’s gross profits on the accused sales
through September 2013 were $106,554 and that Bullseye’s total gross profits on
accused sales from 2010 through September 2013 were $466,226. [Id. at 8, ¶ 14.]
(e) Thus, it seems that Bullseye would have had funds available to pay for
publishing corrective advertising, etc., as required by the Injunction.
15. The bank statements for Bullseye’s bank accounts at JPMorgan Chase Bank
(“Chase”) that API put into evidence a s E x h i b i t 1 at the F e b r u a r y 2 2 , 2 0 1 6
hearing show that the tax returns provided to API’s counsel before the May 26, 2015
hearing substantially understated Bullseye’s actual revenues.
(a) I n 2013, the deposits into Bullseye’s bank account made by customers
who paid by wire transfer (many customers paid by check) totaled $827,000—more
than twice the $370,882 in gross sales shown on the 2013 tax return. [Silva Dep. at 62.]
(b) At his deposition, Silva was shown the pages of the bank statements
reflecting deposits made into Bullseye’s Chase account during 2014 and was asked
to highlight any deposits that d i d n o t r e p r e s e n t sales proceeds. [Silva Dep. at
6

65-67.] The deposits that Silva did not highlight—meaning they represented sales
proceeds—totaled over $327,000 [id. at 67-68 & Ex. 7], which was substantially
greater than the gross sales reflected on Bullseye’s 2014 tax return.
16. According to B u l ls e y e ’ s bank statements, the cash that Silva took out of
the company in 2014 in transfers to his personal bank account, cash withdrawals, and
ATM withdrawals exceeded $51,000. [Silva Dep., Exs. 28, 29, 30, & 31.]
17. Furthermore, the bank statements and cancelled checks establish that from
2011 through September 2014, Silva paid himself hundreds of thousands of dollars
out of Bullsey e by taking cash withdrawals from, and paying his personal expenses
out of, Bullseye’s bank account. The cash that he took out of Bullseye at that time
totaled over $207,000. [Silva Dep., Exs. 28, 29, 30, & 31.]
18. The Chase bank statements and cancelled checks also re fle ct that Silva
used Bullseye’s bank accounts to pay thousands of dollars of his own personal
expenses, including, but not limited to:
•
•
•
•
•
•
•
•

Car loans;
Purchases of luxury cars, including a late model Mercedes Benz R320
and a late model Mercedes Benz SL550;
A condominium association fee;
Medical and dental bills;
Travel expenses for Silva, his wife, and daughter;
Day care bills;
Bills to repair and store a speedboat allegedly owned by a friend of
Silva’s and not owned by Bullseye;
The tabs at fancy bars, restaurants, nightclubs, and a gentlemen’s club;

[Silva Dep., Exs. 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, & 32.]
19. Silva claimed that he used the Bullseye checking account as his personal
7

checking account because he considered Bullseye’s payment of his personal expenses
to be part of his compensation. [Silva Dep. at 90.]
20. He also claimed that some of the personal expenses he paid out of
Bullseye’s bank account were actually business expenses, or personal expenses for
which he received Form 1099s and reported as income on his personal tax returns. [Id.
at 86-87.]
21. However, Silva’s 2013 and 2014 personal tax returns reflect that the amount
on his 1099 forms and reported on his tax returns was $28,330 for 2013 and $21,750 for
2014. [2/22/2016 Hrg., Pl.’s Exs. 3, 4, 5, & 6.]
22. Moreover, Bullseye’s tax returns discredit Silva’s claim that the expenses
he paid at bars, restaurants, nightclubs, and a gentlemen’s club using Bullseye’s debit
card were business expenses.
( a ) In July 2013, for example, Silva spent more than $2,000 using Bullseye’s
debit card at a gentlemen’s club. [Silva Dep., Ex. 32.]
(b) In August 2013, h e spent more than $6,700 using Bullseye’s debit card
at bars, restaurants, and nightclubs. [Id.]
(c) Bullseye’s 2013 tax return reflects a business deduction for “Meals and
Entertainment (50%)” for the entire year of 2013 of only $1,129. [Id., Ex. 2.]
23. The bank statements from Chase included the monthly bank statement for
a second bank account that Silva opened f o r B u l l s e y e on September 3, 2014 [Silva
Dep. 190 & Ex. 33]—five days after API filed Plaintiff’s Verified Motion for Entry of

8

Default Against Bullseye—with over $22,000 in funds he transferred from Bullseye’s
other bank account. [Id. at 190-91.]
24. And during that month, an additional $27,000+ were deposited into this
second account, bringing the total deposited t o o v e r $50,000. [Id., Ex. 33.]
25. Although Silva used approximately $28,000 from this second account to pay
Bullseye’s creditors, he also withdrew more than $21,000 in cash—including a final
withdrawal on September 25, 2014—bringing the ending account balance to $0. [Id.]
26. If Silva had not taken cash out of Bullseye’s account and had not used
Bullseye’s funds to pay his personal expenses, Bullseye would have had funds to pay
for publishing the corrective advertising, etc. required by the Injunction.
27. The Illinois Secretary of State records show that Orion Lubricants, Inc., d/b/a

as Titan Lubricants, was incorporated in March 2014 by agent Peter Limperis of
Burbank, Illinois [see Mot. for Extension of Time, Ex. A, doc. 164-1; see also Pl.’s Submission
of Additional Suppl. Evid., Ex. A, doc. 168-1]—counsel for Defendants.
28. At that time, Plaintiff’s Motion for Preliminary Injunction [doc. 20] was pending
against Bullseye and Silva (then a named Defendant) and set for a hearing. The motion
asked the Court to, inter alia, order Bullseye and Silva to cease manufacturing, bottling,
selling, or otherwise distributing engine oils with labeling that is infringing, false and
misleading, or otherwise dangerous to consumers, and to cease producing, at least
temporarily, any engine oils until it has b e e n shown that the engine oils can be
accurately labeled as safe for use in automobiles that are currently on the nation’s roads.
[Id. at 1.]
9

29. On April 10, 2014, the Court entered a Preliminary Injunction Order enjoining
Bullseye and anyone acting on its behalf, including its officers, agents, etc. as requested
in the Motion for Preliminary Injunction. [See doc. 72.]
30. The bank statements for the two bank accounts that Orion Lubricants had
at Chase (the “Orion Bank Accounts”) show that:
(a) The Orion Bank Accounts were opened in October 2014. [Pl.’s Submission
Add’tl Suppl. Evid., Exs. C, C-2, and D, docs. 168-3 thru -5.]
(b) Silva’s name does not appear on the Orion Bank Accounts bank statements,
but the signatures on the checks drawn on the account appear to match the
signatures on checks drawn on Silva’s bank a ccount. [Compare, e.g., ORION00077,
doc. 168-3 at 77 with Pl.’s Submission Add’tl Suppl. Evid., Ex. F, doc. 168-7.]
(c) Checks were written on the Orion Bank Accounts to many of the same
companies that had formerly received checks drawn on the Bullseye Bank Accounts,
including Labels Unlimited, Champion Packaging, and Midwest Express.

[Pl.’s

Submission Add’tl Suppl. Evid., Exs. C, C-2, and D, docs. 168-3 thru -5.]
(d) Several of the cash deposits to the Orion Bank Accounts were made at the
same address—9540 S. Roberts Rd., Hickory Hills, Illinois—as the ATM from which
Silva made several cash withdrawals from the Bullseye Bank Accounts. [Id.]
(e) From October 2014 through July 2016 (the date of the last bank statements
produced), at least $800,000 were deposited into the Orion Bank Accounts. [Id.]

10

31. Thus, it appears that Silva may have had Orion Lubricants formed in order to
continue selling motor oil and to continue making profits from such sales, and he
deposited sales proceeds into the Orion Bank Account.
32. The Petroleum Quality Institute of America apparently issued a consumer alert
for motor oil distributed by Orion Lubricants Inc. which oil was purchased in February
2016. [See Pl.’s Submission of Additional Supplemental Evidence, Ex. A, doc. 168-1.]
33. Pursuant to Plaintiff’s motion, on April 26, 2016, the Court ordered Silva to
deliver to API’s counsel by May 2, 2016, original signed Requests for Transcripts of Tax
Returns (“Request Forms”), requesting the IRS to send API’s counsel copies of Bullseye’s
and Silva’s tax returns for several years. [See doc. 154.] Silva did not comply with the
order. Thus, on May 25, 2016, the Court ordered Silva to show cause, if any, by June 7,
2016, why he should not be held in contempt of Court for failure to comply with the
Court’s order. Thereafter, API’s counsel received signed originals of the Request Forms.
Nonetheless, to date, Silva has failed to show why he should not be held in contempt.

Conclusions of Law

1. The district court has discretion to enter a finding of civil contempt. Bailey v.
Roob, 567 F.3d 930, 933 (7th Cir. 2009).
2. To prevail on a request for a finding of contempt, a movant must establish “by
clear and convincing evidence that (a) the district court’s order set forth an unambiguous
command; (b) [the alleged contemnor] violated that command; (c) the violation was
significant, meaning that [the alleged contemnor] did not substantially comply with the
11

court order; and (d) [the alleged contemnor] failed to make reasonable and diligent effort
to comply.” Ohr ex rel. NLRB v. Latino Exp., Inc., 776 F.3d 469, 474 (7th Cir. 2015).
3. “The district court does not … ordinarily have to find that the violation was
‘willful.’” FTC v. Trudeau, 579 F.3d 754, 763 (7th Cir. 2009) (quoting Prima Tek II, L.L.C. v.
Klerk’s Plastic Indus., B.V., 525 F.3d 533, 542 (7th Cir. 2008)).
4. Given the above findings of fact, API has established by clear and convincing
evidence that (a) the Injunction set forth unambiguous commands, including that Bullseye
cease using the infringing marks; issue a recall of all Bullseye engine oil products bearing
the complained-of labels; advertise the recall in one major newspaper of general
circulation in Chicago, Detroit, and Indianapolis as well as in three identified trade
publications; and file with the Court by November 10, 2014, a verified certification of
compliance with the Injunction. [Default J. for Permanent Inj. Against Bullseye Auto. Prods.
Inc. and Bullseye Lubricants Inc., doc. 99 at 2-4]; (b) Bullseye violated that command by
offering for sale product bearing the infringing marks, continuing to use the infringing
marks, failing to recall its products, advertise the recall, and file certification of
compliance with the Court; (c) the violation was significant since Bullseye did not
substantially comply with the Injunction; and (d) Bullseye failed to make a reasonable and
diligent effort to comply.
5. Civil contempt includes both coercive and remedial sanctions. Bailey, 567 F.3d
at 933. “Coercive sanctions induce a party’s compliance with a court order in the future,
while remedial sanctions compensate an injured party for an opponent’s past noncompliance.” Id.; see also Connolly v. J.T. Ventures, 851 F.2d 930, 932-33 (7th Cir. 1988)
12

(noting that the court may impose a fine payable to the injured party to compensate for
losses resulting from the contumacy).
6. Remedial sanctions also may include awarding the moving party its reasonable
attorney fees and costs incurred in seeking compliance with the violated order. Tranzact
Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005); Bettie Page LLC v. Design
Tech. Holding LLC, No. 1:14–cv–0394–SEB–TAB, 2015 WL 1526659 at *9 (S.D. Ind. April
3, 2015).
7. “A command to the corporation is in effect a command to those who are
officially responsible for the conduct of its affairs.” Wilson v. United States, 221 U.S.
361, 376 (1911). Therefore, if officers of a corporation are “apprised of the writ directed
to the corporation, [and] prevent compliance or fail to take appropriate action within
their power for the performance of the corporate duty, they, no less than the
corporation itself, are guilty of disobedience, and may be punished for contempt.” Id.; see
also Domanus v. Lewicki, 742 F.3d 290, 296-97 (7th Cir. 2014) (finding that a shareholder’s
“overtly noncompliant behavior in response to the magistrate’s production orders
certainly qualifies” as contempt); Tranzact Techs., 406 F.3d at 856 (“[A]n individual
officially responsible for a corporation’s compliance with a court order . . . may be
punished for contempt if he fails to act appropriately.”); Commodity Futures Trading
Comm’n v. Premex, Inc., 655 F.2d 779, 784-85 (7th Cir. 1981) (concluding that a company
president’s failure to act to “ensure that the prior court mandates were enforced”
violated the decree and amounted to civil contempt).

13

8. Silva was advised of the Injunction, and as president of Bullseye, he was
responsible for Bullseye’s compliance with the Injunction; yet he failed to take appropriate
action to ensure Bullseye’s compliance with the Injunction’s commands.
9. The undersigned finds that Bullseye should be found in contempt for violating
the Injunction.
10. The undersigned further finds that Silva should be sanctioned for Bullseye’s
contempt and ordered to pay API’s reasonable attorney’s fees and costs incurred in
connection with its Motion to Reconsider.
11. API argues that the Court should hold Silva personally liable for the Judgment
for Damages Against Bullseye [doc. 100], which ordered Bullseye to pay $1,827,674 in
damages to API with post-judgment interest. API cites Connolly v. J.T. Ventures, 851 F.2d
930 (7th Cir. 1988), as authority for holding a corporate officer responsible for contempt
personally liable for an underlying judgment against the corporation. But the case does
not bear the weight that API puts on it. In Connolly, the district court found the defendant
corporation and its president in contempt for violating the terms of a settlement
agreement that had been incorporated into the court’s order and entered a judgment
against the corporation and its president. Id. at 931. The court awarded a judgment
encompassing a compensatory award, representing the profits to defendants from the
sale of the infringing product, and an attorney’s fee award. Id. at 931-32. The award was
to compensate the plaintiff for “losses sustained because of the contempt.” Id. at 933. The
court did not hold the president personally liable for damages awarded in the underlying
order. Id. at 931-32.
14

12. Rather, as the Connolly court recognized:
Where the responsible officers of the corporation, after notice of the decree,
merely fail to take action within their power to cause the corporation to
comply with the decree, the officers are in civil contempt, but the
obligations of the corporation under the decree do not thereby become the
personal obligations of the delinquent officers.
Parker v. United States, 126 F.2d 370, 379 (1st Cir. 1942), cited in Connolly, 851 F.2d at 93435; see also Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., Civil No. AW 12954, 2013 WL 6844272, at *5 (D. Md. Dec. 20, 2013) (stating that “the fact that a corporate
officer may be subject to the court’s contempt power for failing to direct his corporations
to comply with [court] orders does not mean that [the officer] can now be held personally
liable for the underlying [orders] themselves”) (internal quotations and citation omitted).
13. The $1,827,674 in the Judgment for Damages Against Bullseye [doc. 100] was not
intended to compensate API for losses resulting from Bullseye’s contempt. Rather, this
amount represented Defendants’ sales of the accused engine oil products between 2010
and 2013 [see Schoettelkotte Aff., doc. 93-1 at 5, ¶ 8; see also Mot. Default J. for Damages, doc. 92,
¶ 27], that is, sales preceding the entry of the Injunction.
14. While it may be appropriate to award API Bullseye’s profits on engine oil
product sales after the entry of the Injunction, API has not made a sufficient showing of
what those profits may have been. Even if an award based on Orion Lubricants’s profits
of oil product sales would be appropriate, and there has been no showing that the Orion
Lubricants sales were of infringing products, API has not made a sufficient showing of
those profits either.

15

15. Nonetheless, API should be awarded some damages to compensate it for
Bullseye’s failure to comply with the Injunction for the time period between the time of
the entry of the Injunction (October 31, 2014) and Bullseye’s actual dissolution (April 10,
2015).
16.

The undersigned finds that without sufficient proof of damages to API

sustained as a result of the contempt by Bullseye, an award of $50,000 to API to be paid
by Silva is fair and justified. This amount approximates the amount of cash that Silva
took out of Bullseye in 2014. It also approximates the amount that Silva deposited into
the second Bullseye bank account he opened in September 2014 and then drained at the
month’s end, shortly before the entry of the Injunction. As noted previously, Bullseye
engine oil with an infringing mark was still being offered for sale in mid-November 2014,
late December 2014, and at the end of January 2015. Given Bullseye’s sales for the period
of 2010 to 2013, an award of $50,000 for over a five-month period appears to be
conservative.
17. Furthermore, the undersigned finds that Silva should be found in contempt of
court for failing to comply with the Court’s April 26, 2016 order to deliver to API’s
counsel the Request Forms. Only after the Court ordered Silva to show cause why he
should not be held in contempt for failing to comply with the order, did Silva provide the
forms to counsel. However, he failed to show cause, or even attempt to show cause, why
he should not be held in contempt. Therefore, Silva should be sanctioned $2,500 for this
contempt to be paid to API.

16

Recommendation
For the foregoing reasons, the undersigned recommends that the Motion to
Reconsider Denial of Plaintiff’s Motion to Hold Defendants in Contempt [doc. 120] be granted,
that Plaintiff’s Motion to Hold Defendants in Contempt [doc. 104] be granted, and that
Bullseye Automotive Products Inc. and Bullseye Lubricants Inc. be found in civil
contempt for failing to comply with the Injunction.
The undersigned also recommends that Silva be sanctioned for Bullseye’s
contempt and that Silva be ordered to pay API $50,000 to compensate API for Bullseye’s
noncompliance.
The undersigned further recommends that API be awarded and Silva be ordered
to pay API’s reasonable attorney’s fees and expenses incurred in connection with its
Motion to Reconsider and that API be directed to file an affidavit for attorney’s fees and
expenses within 30 days of the date of the District Judge’s action on this Report and
Recommendation.
Finally, the undersigned recommends that Silva be found in civil contempt for
failing to obey this Court’s April 26, 2016, order and that he be sanctioned and ordered
to pay API $2,500 for his contempt.
SO RECOMMENDED: 12/05/2016

17

Notice Regarding Objections
Within fourteen days of being served with a copy of this recommendation, either
party may serve and file specific written objections thereto. 28 U.S.C. § 636(b); Fed. R. Civ.
P. 72(b)(2). The district judge shall make a de novo determination of those portions of the
recommendation to which objections are made. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(3).
Failure to file an objection may result in forfeiture of the right to de novo determination
by a district judge and to review by the court of appeals of any portion of the
recommendation to which an objection was not filed. Tumminaro v. Astrue, 671 F.3d 629,
633 (7th Cir. 2011); United States v. Pineda-Buenaventura, 622 F.3d 761, 777 (7th Cir. 2010);
Schur v. L. A. Weight Loss Ctrs., Inc., 577 F.3d 752, 761 n. 7 (7th Cir. 2009); Kruger v. Apfel,
214 F.3d 784, 787 (7th Cir. 2000); Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir.
1999).
The parties should not expect extensions of time to file either objections or
responses. No replies will be permitted.

Electronic Distribution to Counsel of
Record
and via Fist Class U.S. Mail to:
Peter G. Limperis
LAW OFFICES OF PETER G. LIMPERIS
5624 W. 79th Street
Burbank, IL 60459

18