GET IN SHAPE FRANCHISE, INC. v. TFL FISHERS, LLC et al
ORDER adopting Magistrate Judge's 70 Report and Recommendation. GISF's Verified Petition to Show Cause Why Defendant Rosalyn R. Harris Should Not Be Held in Contempt and For Sanctions (Filing No. 65) is GRANTED. The court hereby find s Harris in CONTEMPT and, pursuant to that finding, ORDERS her to remit $1,000.00 in attorney's fees to GISF within thirty days of the date of this Order. The duration of the preliminary injunction in this matter is extended to January 1, 2018. Order also DENIES Harris' 72 Motion to Vacate Preliminary Injunction (copy mailed). Signed by Judge Richard L. Young on 4/5/2017. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
GET IN SHAPE FRANCHISE, INC.,
TFL FISHERS, LLC, ROSALYN R. HARRIS, )
THINNER FOR LIFE, INC., and FIT
ROSALYN R. HARRIS and TFL FISHERS,
BRIAN COOK and GET IN SHAPE
ORDER ON THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION and HARRIS’
MOTION TO VACATE PRELIMINARY INJUNCTION
Get in Shape Franchise, Inc. (“GISF”) filed this action against its former
franchisee, Rosalyn R. Harris, to remedy a breach of contract. Harris owned and
operated a GISF studio in Fishers, Indiana for approximately two years before ultimately
terminating the franchise agreement in June 2015. GISF alleges that after Harris
terminated the agreement, she began operating a competing business–Fit Chicks–in the
same space using GISF’s trademarks, logos, and confidential information. On March 9,
2016, Chief Judge Patti B. Saris of the U.S. District Court for the District of
Massachusetts granted GISF’s motion for preliminary injunction as to Harris, specifically
ordering that Harris was “enjoined from volunteering for, consulting for, working at, or
otherwise assisting Fit Chicks in any way until July 1, 2017.” Chief Judge Saris
subsequently transferred the case to this court.
On September 15, 2016, GISF filed its Verified Petition to Show Cause Why
Defendant Rosalyn R. Harris Should Not Be Held in Contempt and For Sanctions. It
claims that Harris continues to operate Fit Chicks in direct violation of the preliminary
injunction. In support, GISF offers the affidavit of a “secret shopper” who was assisted
by Harris on three different occasions in the Fit Chicks facility in August 2016. GISF
seeks a contempt finding, sanctions, attorney’s fees, and an extension of the duration of
the preliminary injunction.
The court referred the matter to the Magistrate Judge, who issued her Report and
Recommendation after first holding a hearing. The Magistrate Judge recommends that
this court grant GISF’s motion, find Harris in civil contempt, extend the duration of the
injunction by six months, and award GISF $1,000.00 in attorney’s fees. No party
But before deciding whether to adopt or reject the Report and Recommendation,
the court must first address a subsequent motion filed by Harris. After the deadline to
object passed, Harris filed a motion to vacate the preliminary injunction in toto. She
advances three arguments: (1) GISF no longer has a protectable interest in Indiana
because it has no franchisees in the state, (2) GISF has negative goodwill, and (3) GISF
does not have confidential or proprietary information that it needs to protect. The court
summarily rejects all three arguments.
Harris is essentially attempting to re-litigate GISF’s motion for preliminary
injunction, but she already had an opportunity to be heard on the merits of that motion. If
she was dissatisfied with Chief Judge Saris’ ruling, she could have filed an appeal as of
right. For whatever reason, she elected not to do that. This court would only be inclined
to vacate the injunction order if Harris could show that (a) the order is clearly erroneous,
or (b) there are new, material facts that bear on the motion. She fails to satisfy either
standard here. Accordingly, her motion must be denied.
With Harris’ motion resolved, the court now turns to the Report and
Recommendation. Whereas no party lodged an objection, the court reviews it for clear
error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). After considering
the record and the relevant case law, this court is satisfied that the Magistrate Judge did
not commit clear error.
Therefore, the court ADOPTS the Magistrate Judge’s Report and
Recommendation (Filing No. 70). GISF’s Verified Petition to Show Cause Why
Defendant Rosalyn R. Harris Should Not Be Held in Contempt and For Sanctions (Filing
No. 65) is GRANTED. The court hereby finds Harris in CONTEMPT and, pursuant to
that finding, ORDERS her to remit $1,000.00 in attorney’s fees to GISF within thirty
days of the date of this Order. The duration of the preliminary injunction in this matter is
extended to January 1, 2018. Harris’ Motion to Vacate Preliminary Injunction (Filing
No. 72) is DENIED.
SO ORDERED this 5th day of April 2017.
Distributed Electronically to Registered Counsel of Record.
Distributed via U.S. Mail:
Rosalyn R. Harris
9726 Ambleside Drive, Apt. 302
Fishers, IN 46038
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