Mary Kay Inc v. Designs By Deanna, et al
Filing
40
Order Adopting 36 Findings and Recommendations of the Magistrate Judge. Accordingly, plaintiff's 9/20/2013 second amended motion to enforce settlement agreement and for contempt is granted in part and denied in part. (Ordered by Chief Judge Sidney A Fitzwater on 12/3/2013) (skt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARY KAY INC.,
Plaintiff,
VS.
DESIGNS BY DEANNA, INC., et al.,
Defendants.
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§ Civil Action No. 3:00-CV-1058-D
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ORDER
After making an independent review of the pleadings, files, and records in this case, the
October 24, 2013 findings, conclusions, and recommendation of the magistrate judge, defendants’
objections filed on November 6 and 8, 2013, and plaintiff’s response to defendants’ objections filed
on November 20, 2013, the court concludes that the findings and conclusions are correct. It is
therefore ordered that the findings, conclusions, and recommendation of the magistrate judge are
adopted.
Accordingly, plaintiff’s September 20, 2013 second amended motion to enforce settlement
agreement and for contempt is granted in part and denied in part.
It is therefore ordered that defendants David Wilson (“David”) and Deanna Wilson,
individually, and d/b/a Designs by Deanna (“Deanna”) are found in civil contempt of court for
failing to comply with the terms of the agreed permanent injunction (“Permanent Injunction”)
previously entered in this case.
It is further ordered that plaintiff recover from David and Deanna, jointly and severally, a
compensatory fine in the sum of $5,000.*
It is further ordered that plaintiff recover from David and Deanna, jointly and severally, its
reasonable and necessary attorney’s fees in the sum of $48,250, expenses in the sum of $13,314.26,
and interest on these fees and expenses at the rate of 5% per annum from the date of this order until
they are paid to plaintiff.
It is further ordered that Deanna immediately delete all Internet accounts and/or profiles that
violate the terms of the Permanent Injunction. To the extent that such accounts and/or profiles are
under third-party control, Deanna must pursue all reasonable avenues for deleting the accounts
and/or profiles and for permanently removing any images of merchandise bearing the MARY KAY
Marks or Pink Trade Dress, in violation of the Permanent Injunction. Any goods possessed by
Deanna that bear the MARY KAY Marks or Pink Trade Dress, in violation of the Permanent
Injunction, including any goods bearing plaintiff’s ONE WOMAN CAN Marks, shall be returned
to plaintiff in care of Gruber Hurst Johansen Hail Shank LLP, 1445 Ross Ave., Suite 2500, Dallas,
*
In his findings, conclusions, and recommendation, the magistrate judge refers to the court’s
authority to impose a conditional fine. See Oct. 24, 2013 Rec. 6. The fine included in this order,
however, is compensatory and is based on defendants’ sales of products, in violation of the
Permanent Injunction. See id. at 7. A compensatory fine is permitted when holding a party in civil
contempt. See, e.g., F.T.C. v. Garden of Life, Inc., 516 Fed. Appx. 852, 860 (11th Cir. 2013)
(“While the need for coercive sanctions vanishes when the contumacious conduct ceases, a court
retains the power to assess compensatory fines in civil contempt.” (citing Jim Walter Res., Inc. v.
Int’l Union, United Mine Workers of Am., 609 F.2d 165, 170 (5th Cir. 1980))).
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Texas 75202-2711, within 14 days of the date of this order.
SO ORDERED.
December 3, 2013.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
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