Contino et al v. Frontier Adjusters, Inc. et al

Filing 41

CONSENT JUDGMENT. Signed by Chief Judge Frank D. Whitney on 3/5/2015. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00550-FDW-DSC
JAYSON CONTINO, ET AL.,
Plaintiffs,
vs.
FRONTIER ADJUSTERS, INC., ET AL.,
Defendants.

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CONSENT JUDGMENT

THIS MATTER is before the Court on the parties’ Joint Motion to Lift Stay and For
Entry of Final Consent Judgment. (Doc. No. 40). The parties hereto have settled all claims and
issues in this matter and have requested the Court to lift the stay of these proceedings and to
enter the Consent Judgment Entry attached to their Motion (Exhibit A, Doc. No. 40).
Accordingly, the parties’ Motion is GRANTED.
By agreement and consent of the parties, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED as follows:
1.

The stay of this action pending arbitration entered on November 7, 2014

is hereby lifted.
2.

Plaintiffs Jayson and Mamye Contino (“Plaintiffs”), their officers, agents,

servants, employees, and attorneys, and all other persons who are in active concert or
participation with them including, in particular, non-parties Southern Claims Adjusting, Inc. and
Noya Corporation, are hereby enjoined and restrained from and ordered to:
A.

Cease any use of Frontier Adjusters, Inc., intellectual property,
including, but not limited to, the style, service marks and trade
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names FRONTIER® and FRONTIER ADJUSTERS (with logo)®
(the “Marks”);
B.

Deliver to Frontier Adjusters, Inc. or its designee all books,
records, client lists, operating manuals, materials containing the
Marks, and files pertaining to pending and completed assignments
for customers of Frontier Adjusters, Inc.;

C.

Cooperate with Frontier Adjusters, Inc. with respect to transferring
control over the telephone and telecopier numbers utilized by
Plaintiffs for the purpose of advertising their franchised locations;

D.

Refrain, for a period of two (2) years from the date hereof, from
directly, or indirectly, for themselves, or through, on behalf of or in
connection with any other person, partnership, corporation, limited
liability company or entity, including, but not limited to Southern
Claims Adjusting, Inc. and Noya Corporation, from competing
with Frontier Adjusters, Inc. or any of its franchisees within and
for a distance of 100 miles outside of i) Raleigh/Durham, North
Carolina; (ii) Greensboro/Burlington, North Carolina; (iii) Chapel
Hill, North Carolina; (vi) Hickory/Statesville, North Carolina; (v)
Asheville/Henderson, North Carolina; and (vi) Scranton/WilkesBarre, Pennsylvania (the “Advertised Locations”);

E.

Refrain, for a period of two (2) years from the date hereof, from
directly, or indirectly, for themselves, or through, on behalf of or in
connection with any other person, partnership, corporation, limited
liability company or entity, including, but not limited to Southern
Claims Adjusting, Inc. and Noya Corporation, soliciting or
attempting to solicit or causing to be solicited, for purposes of
competing with Frontier Adjusters, Inc. or any of its franchisees,
the business or patronage of any person, firm or other entity that is
a customer or client of Frontier Adjusters, Inc. or any of its
franchisees; and

F.

Refrain, for a period of two (2) years from the date of the order,
from directly, or indirectly, for themselves, or through, on behalf
of or in connection with any other person, partnership, corporation,
limited liability company or entity, including, but not limited to
Southern Claims Adjusting, Inc. and Noya Corporation, hiring,
soliciting for employment or causing others to solicit for
employment, any person who is, or on February 16, 2015 was,
employed by Frontier Adjusters, Inc.

3.

Judgment is hereby entered in favor of Frontier Adjusters, Inc. and
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against Plaintiffs, jointly and severally, in the amount of Seventy-Five Thousand Dollars
($75,000.00), together with interest thereon from the date hereof and the costs of this action (the
“Monetary Judgment”).
4.

No execution shall issue on the Monetary Judgment for so long as

Plaintiffs are in full compliance with their obligations under Paragraph 2 hereof. Furthermore,
any monies actually recovered by Frontier Adjusters, Inc. (net of royalties) with respect to
services performed by Plaintiffs (or their agents) for customers of Frontier Adjusters, Inc. prior
to the date hereof and any proceeds actually received by Frontier Adjusters, Inc. (net of out-ofpocket expenses related thereto) with respect to the sale or assignment of the Advertised
Locations (collectively, the “Credits”), shall be applied towards the satisfaction of the Monetary
Judgment.
5.

In the event Plaintiffs fail to fully comply with their obligations under

Paragraph 2 hereof, Frontier Adjusters, Inc. shall file an Affidavit of Default with the Court
(and serve a copy thereof on Plaintiffs at their last known address), which Affidavit shall
generally describe Plaintiffs’ default(s) and provide an accounting of all Credits against the
Monetary Judgment. Upon the filing of such an Affidavit, Frontier Adjusters, Inc. shall be free
to execute on the full amount of the Monetary Judgment, together with interest thereon from the
date hereof and the costs of this action, but less the Credits. If no Affidavit of Default is filed
within two (2) years following the entry hereof, the Monetary Judgment shall be deemed
satisfied.
6.

Except as expressly set forth herein, all claims of all parties that were or

could have been the subject of this action, are hereby dismissed, with prejudice, each party to
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bear his, her or its own costs and attorneys’ fees.
7.

This Court shall retain jurisdiction over this action for enforcement of this

Judgment.
IT IS SO ORDERED.
Signed: March 5, 2015

STIPULATED AND AGREED TO BY:

/s/Derek P. Adler
Derek P. Adler, Esq.
State Bar No. 39488

s/Andrew J. Poltorak
Andrew J. Poltrack, Esq.
State Bar No. 44715

DeVore, Acton & Stafford, P.A
438 Queens Road
Charlotte, North Carolina 28207
Tel: [phone]
Fax: [phone]
Email: [e-mail]

Ulmer & Berne LLP
1662 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
Tel: [phone]
Fax: [phone]
Email: [e-mail]

s/Derek J. Famulari
Derek J. Famulari, Esq.
Marks & Klein, LLP
63 Riverside Avenue
Red Bank, New Jersey 07701
Tel: [phone]
Fax: [phone]
Email: [e-mail]

s/Stephen A. Markus
Stephen A. Markus, Esq.
Ulmer & Berne LL
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
Tel: [phone]
Fax: [phone]
Email: [e-mail]
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Attorneys for Plaintiffs

Attorneys for Defendants

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