TDC International Corporation v. Burnham

Filing 40

ORDER HOLDING Defendant in Contempt, Directing Defendant to Pay Penalty and Fees, and Setting Additional Show Cause Hearing for April 6, 2010 at 11:00 a.m. Signed by District Judge Robert H Cleland. (Goltz, D)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TDC INTERNATIONAL CORP., Plaintiff, v. JAE L. BURNHAM, Defendant. / ORDER HOLDING DEFENDANT IN CONTEMPT, DIRECTING DEFENDANT TO PAY PENALTY AND FEES, AND SETTING ADDITIONAL SHOW CAUSE HEARING FOR APRIL 6, 2010 AT 11:00 A.M. On June 22, 2009, the court issued a Consent Judgment and Permanent Injunction. The Judgment enjoined Defendant Jae L. Burnham from, among other things, "using any mark that includes the terms and/or words `Easy Moving' or `EZ Moving' or any colorable imitation thereof in connection with offering, sales or advertising of moving services." (6/22/09 Judgment ¶ 6(a).) On November 18, 2009, Plaintiff TDC International Corporation filed a "Motion to Enforce the Judgment and for Order to Show Cause." After determining that Plaintiff TDC International Corporation had demonstrated that Defendant has not complied with the court's Judgment, the court granted Plaintiff's motion to enforce the judgment and ordered Defendant to show cause, in person at a hearing scheduled for February 24, 2010, why he should not be held in contempt for failure to abide by a lawful judgment of this court. (1/21/10 Order.) A hearing on this matter was held on February 24, 2010; however, Defendant failed to appear. Based on Plaintiff's uncontested showing of Defendant's Case No. 08-CV-14792

noncompliance with the Settlement Agreement and Consent Judgment, the court finds Defendant in contempt. The court orders Defendant to pay to Plaintiff a civil penalty of $100.00 per day beginning on the date of the issuance of this order and continuing until Defendant fully complies with the Settlement Agreement and Consent Judgment. In addition, the court orders Defendant to pay Plaintiff's reasonable attorney's fees that it has incurred seeking to enforce the Settlement Agreement and Consent Judgment. These fees were expended in order to enforce what Defendant agreed to in the first instance. At the contempt hearing, the court directed Plaintiff's counsel to submit an accounting of these fees. Plaintiff's counsel provided the court with an accounting on February 25, 2009, indicating a total of $3078.00 in fees incurred from June 24, 2009 to present. In order to assess Defendant's compliance and evaluate the need for further penalties, including additional fines or imprisonment, the court has set a hearing for April 6, 2010 at 11:00 a.m. Like the previous hearing, Defendant is required to personally attend. If Defendant has complied with the Settlement Agreement, Consent Judgment, and this order before the hearing, Plaintiff's counsel is directed to notify the court. Accordingly, IT IS ORDERED that Defendant Jae L. Burnham is in CONTEMPT. As a result, Defendant is DIRECTED to pay to Plaintiff TDC International Corporation a civil penalty of $100.00 per day beginning today and continuing until Defendant fully complies with the Settlement Agreement, Consent Judgment, and this Order. Defendant is FURTHER DIRECTED to pay to Plaintiff the amount of $3078.00, representing the reasonable attorney's fees that Plaintiff has incurred as a result of Defendant's noncompliance.

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Defendant Jae L. Burnham is FURTHER ORDERED TO SHOW CAUSE, in person at the hearing scheduled for April 6, 2010 at 11:00 a.m., why he should not be further sanctioned for failing to abide by the Settlement Agreement and Consent Judgment. Defendant Jae L. Burnham is required to personally appear for this hearing. Plaintiff's Counsel, Arnold S. Weintraub, is DIRECTED to supplement the court's own notice by sending a copy of this order to all of Defendant's known mailing addresses and electronic mail addresses, and to contact the court's case manager at [phone], to provide her with Defendant's most recent addresses. S/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: March 3, 2010 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, March 3, 2010, by electronic and/or ordinary mail. S/Deborah J. Goltz Case Manager

S:\Cleland\JUDGE'S DESK\C1 ORDERS\08-14792.TDC_INTL.Contempt.npk.wpd

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