NEDSCHROEF DETROIT CORPORATION et al v. BEMAS ENTERPRISES LLC et al

Filing 119

OPINION and ORDER (1) Granting Plaintiffs' 51 Motion for Contempt and (2) Denying as Moot Plaintiffs' 55 Motion for Order to Show Cause Why Non-Party Trillium Enterprises LLC Should Not Be Held in Contempt for Failure to Comply with Subpoena. Signed by District Judge Linda V. Parker. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NEDSCHROEF DETROIT CORPORATION,
NEDSCHROEF HERENTALS N.V., and
KONINKLIJKE NEDSCHROEF
HOLDINGS B.V.,
Plaintiffs,

Civil Case No. 14-10095
Honorable Linda V. Parker

v.
BEMAS ENTERPRISES LLC, MARC
A. RIGOLE, and BERNARD E. LEPAGE,
Defendants.
_____________________________________/
OPINION AND ORDER (1) GRANTING PLAINTIFFS’ MOTION FOR
CONTEMPT [ECF NO. 51] AND (2) DENYING AS MOOT PLAINTIFFS’
MOTION FOR ORDER TO SHOW CAUSE WHY NON-PARTY TRILLIUM
ENTERPRISES LLC SHOULD NOT BE HELD IN CONTEMPT FOR
FAILURE TO COMPLY WITH SUBPOENA [ECF NO. 55]
Plaintiffs initiated this lawsuit after discovering that Defendants Marc A.
Rigole (“Rigole”) and Bernard E. LePage (“LePage”), former employees of
Plaintiff Nedschroef Detroit Corporation (“Nedschroef Detroit”), had formed a
competing business, Bemas Enterprises LLC (“Bemas”), while still working for
Nedschroef Detroit. Rigole and LePage formed Bemas under their wives’ names,
respectively Christiane VanLooveren (“VanLooveren”) and Cynthia Lupu LePage
(“Lupu”). Plaintiffs filed a motion for summary judgment, which this Court

granted in an Opinion and Order entered May 22, 2015. (ECF No. 43.) The Court
entered a Judgment on October 7, 2015, although an Amended Judgment also was
entered December 1, 2015. 1 (ECF Nos. 48, 89.) Both judgments provide as
follows:
A. Defendants, their agents, servants, employees, employers,
attorneys, and all persons in active concert or participation with any of
them, are enjoined and restrained from providing replacement parts or
services for Nedschroef machines in North America;
B. Defendants shall destroy all designs, drawings, customer lists and
other property in their possession that belong[] to Plaintiffs; and
C. Defendants shall pay, jointly and severally, the total sum of
$3,680,344.18 to Plaintiffs.
(ECF Nos. 48, 89.) The Sixth Circuit Court of Appeals affirmed the Court’s
decision on April 22, 2016.
In the meantime, on October 28, 2015, Plaintiffs filed a Motion for Order to
Show Cause Why Defendants and their Spouses Should not be Held in Contempt
for Violating [the] Permanent Injunction. (ECF No. 51.) Soon thereafter,

In its summary judgment decision, the Court awarded Plaintiffs $3,680,344.18,
which included the amount Plaintiffs requested for an award of costs, but not the
amount they requested for attorneys’ fees. While the Court granted Plaintiffs’
request for attorneys’ fees, it found insufficient information to determine whether
the fees sought were reasonable. (ECF No. 47 at Pg ID 942.) The Court therefore
provided Plaintiffs an opportunity to submit additional materials to support their
request (id), which Plaintiffs submitted on October 19, 2015. (ECF No. 50.) The
Court therefore entered an Amended Judgment, including the $171,287.50
attorneys’ fees award Plaintiffs sought. (ECF No. 89.) This increased the total
judgment awarded to Plaintiffs to $3,853.247.18. (Id.)
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Plaintiffs filed a motion asking the Court to hold in contempt Trillium Enterprises,
LLC (“Trillium”)-- a new company Plaintiffs formed through their wives to carry
on their business in lieu of Bemas-- based on Trillium’s failure to comply with a
subpoena.2 (ECF No. 55.) Plaintiffs’ motions have been fully briefed. The Court
held an evidentiary hearing with respect to Plaintiffs’ motions on March 16, 2016.
Finding that Bemas, Rigole, LePage, VanLooveren, and Lupo, individually
and through Bemas and Trillium, are in violation of the Court’s permanent
injunction, the Court grants Plaintiffs’ motion for contempt. Because Plaintiffs
informed the Court that Trillium has agreed to allow its corporate representative to
be deposed and that Plaintiffs no longer are pursuing the electronically stored
information from Trillium sought in their subpoena, the Court finds moot
Plaintiffs’ motion to hold Trillium in contempt.
Applicable Standards
A decision on a motion for contempt lies within the sound discretion of the
court. See Elec. Workers Pension Trust Fund of Local Union # 58 v. Gary’s Elec.
Serv. Co., 340 F.3d 373, 378 (6th Cir. 2003). While the Supreme Court has
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Plaintiffs also filed a motion seeking a court order to forcibly enter
Defendants’ homes to seize nonexempt personal property to satisfy the Judgment,
to prevent Defendants and their wives from concealing, transferring, or disposing
of any assets, including joint assets, and to sanction Defendants for destroying a
computer server that was subject to Plaintiffs’ discovery requests and which
Plaintiffs believe contained proof of Defendants’ contempt conduct. (ECF No.
100.) The Court will address that motion in a separate decision.
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advised courts to use their contempt power “sparingly,” it also has stated that “the
power to punish for contempt is a necessary and integral part of the independence
of the judiciary, and is absolutely essential to the performance of the duties
imposed on them by law.” Gompers v. Buck’s Stove & Range Co., 221 U.S. 418,
450 (1911); see also Gary’s Elec. Serv., 340 F.3d at 378. Contempt proceedings
are used to “enforce the message that court orders and judgments are to be
complied with in a prompt manner.” Gary’s Elec. Serv., 340 F.3d at 378. In civil
contempt proceedings, judicial sanctions may be imposed for either or both of two
purposes: to coerce the defendant into compliance with the Court’s order and to
compensate the movant for the losses sustained. Id. at 379 (citing United States v.
United Mine Workers of Am., 330 U.S. 258, 303-04 (1947)).
To hold a litigant in contempt, the movant must produce clear and
convincing evidence to show a violation of a definite and specific order of the
court requiring the litigant to perform or refrain from performing a particular act or
acts with knowledge of the court’s order. Id. (citing NLRB v. Cincinnati Bronze,
Inc., 829 F.2d 585, 588 (6th Cir. 1987)). “Once the movant establishes his prima
facie case, the burden shifts to the contemnor who may defend by coming forward
with evidence showing that he is presently unable to comply with the court’s
order.” Id. (emphasis in original). To meet the burden of production in the Sixth
Circuit, contemnors must show “ ‘categorically and in detail” ’ why they are
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unable to comply with the Court’s order. Id. (quoting Rolex Watch U.S.A., Inc. v.
Crowley, 74 F.3d 716 720 (6th Cir. 1996)). The court must consider whether the
contemnor took all reasonable steps within his power to comply with the court's
Order. Id. Where the contempt arises from the individuals failure to pay a
judgment award, the contemnor must show that he is not responsible for his
present inability to pay. Id. at 383.
Findings
As this Court found in its decision granting Plaintiffs’ motion for summary
judgment, Rigole, LePage, VanLooveren, and Lupo, formed Bemas under
VanLooveren’s and Lupo’s names in about June 2011. (ECF No. 43 at Pg ID
874.) VanLooveren and Lupo, however, never participated in the daily operations
of Bemas and knew little about Bemas’ business. (Id.) Rigole and LePage in fact
ran the business, selling goods and performing services on Bemas’ behalf
beginning in mid-June 2011, while still employed by Nedschroef. (Id. at Pg ID
874-75.) The goods sold were replacement parts for Nedschroef machines and the
services performed were on Nedschroef machines. (Id.) As stated earlier, the
Court’s permanent injunction enjoined Defendants and “their agents . . . and all
persons in active concert or participation with any of them . . . from providing
replacement parts or services for Nedschroef machines in North America.” (ECF

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No. 89 at Pg ID 1323, emphasis added.) The Court also awarded Plaintiffs a
judgment against Defendants in the amount of $3,853.247.18. (Id. at Pg ID 1324.)
At the evidentiary hearing and in the exhibits attached to their contempt
motions, Plaintiffs established by a preponderance of the evidence the following
additional facts:
1.

Rigole, LePage, VanLooveren, and Lupo were aware of the injunction
and understood that it applied to each of them. (3/16/16 Hr’g Tr. at
35-36, 45, 77-78, 102-05, ECF No. 114.)

2.

Other than a small amount garnished from a bank account, Defendants
have not made any payments toward the Judgment awarded to
Plaintiffs. (Id. at 118-19.) Defendants still owe Plaintiffs over $3.8
million. (Id.)

3.

Rigole and LePage were employees of Bemas through at least
December 31, 2015. (Id. at 80, 117.) They each received $5,000 per
month from Bemas through that date. (Id. at 80, 117-118.)

4.

Rigole, LePage, VanLooveren, and Lupo continued to operate under
the name Bemas through December 31, 2015, providing replacement
parts for Nedschroef machines. (Id. at 28-29, 46, 50, 52-54, 57, 62,
80, 85-86, 117, 119-22.)

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5.

Shortly after the Court’s May 22, 2015 decision and entry of
Judgment, Bemas issued a check in the amount of $15,000 to
VanLooveren and another check for $10,000 to VanLooveren and
Rigole. (Id. at 74, 75, Hr’g Exs. 41, 42.) These payments were not
made in the regular course of Bemas’ business. (3/16/16 Hr’g Tr. at
75.)

6.

Shortly after the Court’s May 22, 2015 decision and entry of
Judgment, Rigole, LePage, VanLooveren, and Lupo decided to form a
new company, Trillium, through which they agreed to supply
replacement parts for Nedschroef machines. (Id. at 43, 59-60-82-83,
89, 136-37.) Their decision was in direct response to the Court’s
injunction against Bemas, and Trillium’s business was a continuation
of the same business Bemas conducted. (Id. at 43, 57, 59, 89, 92,
130-36 170; Hr’g Exs. 2, 3, 12-15, 51, 87.)

7.

VanLooveren and Lupo are listed as the owners and operators of
Trillium, and as its employees. (3/16/16 Tr. at 36, 57, 138; Hr’g Ex.
1.) They also are identified as its officers and agents. (Id.)

8.

While VanLooveren and Lupo claim to run the day-to-day operations
of Trillium (see 3/16/16 Tr. at 37, 58, 71-72, 90, 138), the evidence
introduced reflects that they know little about the goods and services
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provided by Trillium and that Rigole and LePage are really the
individuals running the operation. (See Hr’g Exs. 13-18, 20-24, 72,
80; 3/16/16 Tr. at 22-23, 41, 61-62, 73-74, 88-89, 94-95, 139-40
9.

After Trillium’s formation, it filled multiple purchase orders issued to
Bemas for delivery in North America. (Hr’g Exs. 5-7, 9-11.)

10.

Sometime in 2015, Bemas transferred its inventory and approximately
$81,000 to either Trillium or VanLooveren and Lupo. (Id. Ex. 48;
3/16/16 Hr’g Tr. at 124-29.)

11.

Through at least March 2016, Trillium provided replacement parts for
Nedschroef machines in North America. (Hr’g Exs. 55-61, 63-64, 82,
93; 3/16/16 Tr. at 129, 146-50.)

12.

Rigole, LePage, and their wives maintain that Trillium is providing
“tooling” for Nedschroef machines, which they attempt to distinguish
from the “replacement parts” covered by the Court’s injunction. The
Court, however, finds that “tools,” “tooling,” and “replacement parts”
are terms used to describe many of the exact same goods and that
these goods are designed for Nedschroef machines. (3/16/16 Hr’g Tr.
at 11-14, 33, 39, 107, 109-13,, 120, 153-55; Hr’g Exs. 66-68.)

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13.

After May 22, 2015, Trillium provided services for Nedschroef
machines in North America. (Hr’g Exs. 7, 30, 53, 72; 3/16/16 Hr’g
Tr. at 22-23, 41, 94-95.)

14.

Nedschroef’s drawings are confidential and proprietary, containing
warnings against reproduction, and are password protected. (3/16/16
Hr’g Tr. at 14-15.) It is Nedschroef’s policy not to give its
confidential and proprietary drawings to customers, and Nedschroef
derives economic value from keeping them out of the public domain.
(Id. at 14-15, 33.)

15.

After May 22, 2015, Trillium converted Nedschroef’s proprietary
property for Trillium’s use by reproducing and forwarding
Nedschroef’s confidential drawings, including those previously
marked: “This drawing is property of Nedschroef. No reproduction
without written permission.” (Id. at 18-21, 96-97, 141-144, 163-64;
Hr’g Exs. 20-24, 56, 74-76.)

In short, the evidence presented at the hearing reflects that Rigole, LePage,
VanLooveren, and Lupo-- through Bemas and then Trillium-- knowingly and
willfully violated the Court’s permanent injunction and have taken steps to avoid
paying the Judgment against them and to conceal their assets and earnings.
Defendants, VanLooveren, and Lupo have come forward with no credible evidence
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to rebut the showing of contempt or to explain why they are unable to comply with
the Court’s injunction or Judgment. The evidence instead reflects only their
unwillingness to do so.
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion for Order to Show Cause Why
Defendants and Their Spouses Should not be Held in Contempt for Violating
Permanent Injunction (ECF No. 51) is GRANTED;
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Order to Show
Cause Why Non-Party Trillium Enterprises, LLC Should not be Held in Contempt
for Failure to Comply with Subpoena (ECF No. 55) is DENIED AS MOOT;
IT IS FURTHER ORDERED that Defendants Bemas Enterprises LLC,
Marc Rigole, and Bernard LePage, as well as Christiane VanLooveren, Cynthia
LePage Lupo, and Trillium Enterprises, LLC, are IN CONTEMPT of this Court’s
previous orders enjoining Defendants “and all persons in active concert or
participation with them” from providing replacement parts or services for
Nedschroef machines in North America;
IT IS FURTHER ORDERED that the permanent injunction is specifically
extended to Christiane VanLooveren, Cynthia Lupu LePage, Trillium Enterprises,
LLC, and any other entity with which Defendants, Christiane VanLooveren, and/or

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Cynthia Lupu LePage now have or may in the future have an employment,
ownership, or other relationship;
IT IS FURTHER ORDERED that as sanctions for their contempt, the
judgment against Defendants in the amount of $3,853,247.18 is applied, jointly and
severally, against Christiane VanLooveren and Cynthia Lupu LePage, in their
individual and corporate capacities, and against Trillium;
IT IS FURTHER ORDERED that Bemas Enterprises, LLC and Trillium
Enterprises, LLC are ordered to disgorge to Plaintiffs all profits made since the
Court issued its May 22, 2015 permanent injunction, and Plaintiffs are awarded
treble the amount of such profits;
IT IS FURTHER ORDERED that Marc Rigole, Bernard LePage,
Christiane VanLooveren, and Cynthia Lupu LePage are ordered to disgorge all
compensation and other payments Bemas or Trillium paid to them since May 22,
2015;
IT IS FURTHER ORDERED that Marc Rigole, Bernard LePage,
Christiane VanLooveren, Cynthia Lupu LePage, and Trillium Enterprises, LLC are
ordered to pay, jointly and severally, the costs and attorneys’ fees incurred by
Plaintiffs since the Court issued the May 22, 2015 permanent injunction;
IT IS FURTHER ORDERED that Marc Rigole, Bernard LePage,
Christiane VanLooveren, Cynthia Lupu LePage, Bemas Enterprises, LLC, and
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Trillium Enterprises, LLC are ordered to turn over to Plaintiffs all designs,
drawings, customer lists, and other property in their possession that belong to
Plaintiffs.
The Court retains jurisdiction to enforce the permanent injunction and this
Order, and permits Plaintiffs to engage in post-judgment discovery in accordance
with the Federal Rules of Civil Procedure to ensure compliance with the permanent
injunction and this Order. The parties may submit supplemental briefing on the
amount of profits made by Bemas Enterprises, LLC and Trillium Enterprises LLC
in violation of the injunction; compensation paid by Bemas and Trillium to Marc
Rigole, Bernard LePage, Christiane VanLooveren, or Cynthia Lupu LePage since
May 22, 2015; and costs and attorneys’ fees incurred by Plaintiffs since the Court
issued the May 22, 2015 permanent injunction.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 13, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 13, 2016, by electronic and/or U.S.
First Class mail.
s/ Kelly Winslow for Richard Loury
Case Manager

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