Equine Colic Relief Company, Inc., et al v. Martinez, et al

Filing 101

ORDER TO SHOW CAUSE as to Tara Flynn. Show Cause Hearing set for 4/29/2015 10:00 AM before Judge David A. Ezra,. Signed by Judge David A. Ezra. (rf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
TARA FLYNN and MATTHEW
FLYNN,

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Plaintiffs,
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vs.
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REBA MARTINEZ, LARRY
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MARTINEZ, LARISSA MARTINEZ, §
PAM SCHROEDER, EQUINE COLIC §
RELIEF AMERICA, and PURE
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EARTH PRODUCTS, LLC,
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Defendants.
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Cv. No. 5:13-CV-321-DAE

ORDER TO SHOW CAUSE WHY PLAINTIFF TARA FLYNN SHOULD NOT
BE HELD IN CONTEMPT
On February 18, 2015, Defendant Reba Martinez (“Defendant”) filed
a Motion for Order to Show Cause requiring Plaintiff Tara Flynn (“Plaintiff”) to
appear and show cause why she should not be held in contempt for violating the
Agreed Permanent Injunction entered in this case on July 7, 2014. (Dkt. # 99.)
Defendant asks, in the alternative, that the Court reopen discovery in order to
gather evidence of Plaintiff’s violations of the Agreed Permanent Injunction. For
the reasons that follow, Plaintiff is ORDERED TO SHOW CAUSE why she
should not be held in civil contempt and is ORDERED TO APPEAR before this
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Court on April 29, 2015 at 10:00 AM in Courtroom 5, on the Third Floor of the
John H. Wood, Jr. United States Courthouse, 655 East Cesar E. Chavez Boulevard,
San Antonio, Texas.
BACKGROUND
The parties currently before the Court are manufacturers of competing
treatments for horse colic. Plaintiff sells a horse colic treatment called Equine
Colic Relief. (Dkt. # 99 at 1.) Defendant, through her company, Stops Colic,
LLC, sells a horse colic treatment called SayWhoa! (Id.) Plaintiff originally filed
suit in the Judicial District Court of Guadalupe County, Texas on April 5, 2013
(Dkt. # 1, Ex. 4), and the case was removed to this Court based on its federal
question jurisdiction on April 18, 2013 (Dkt. # 1). Plaintiff’s Amended Complaint
alleged causes of action for trademark infringement, misappropriation of trade
secrets, tortious interference with prospective business relations, and civil
conspiracy against Defendant and several other parties involved in the manufacture
of equine colic products. (Dkt. # 61.)
On June 18, 2014, all parties reached a settlement agreement that was
approved by the Court on June 19, 2014. (Dkt. # 95.) As part of the settlement
agreement, the Court entered an Agreed Permanent Injunction (“Injunction”) and
retained jurisdiction to enforce its terms. (Dkt. # 98.) Under the Injunction, each
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of the parties is prohibited from “disparaging, demeaning, or denigrating any other
Party and its Related Entities or any other Party’s and its Related Entities’ products
in any manner.” (Id. ¶ 6.) The Injunction further provides that a party that prevails
on a motion for contempt or enforcement of the Injunction is entitled to its
reasonable and necessary attorney’s fees and costs for bringing the motion. (Id.
¶ 8.)
On August 15, 2014, Wynona Shannon (“Shannon”), a distributor for
Equine Colic Relief, entered Goliad Feed Company in Goliad, Texas and allegedly
told a store employee that Defendant’s product SayWhoa! had caused the death of
a horse and that Defendant was taking Plaintiff’s product, putting it into different
bottles, and reselling it as SayWhoa!. (Dkt. # 99-3 at 8, 11.) Shannon advised the
employee to take Defendant’s product off the shelves, and put the employee on the
phone with Plaintiff, who allegedly made the same allegations and likewise
advised her to stop selling Defendant’s product. (Id. at 15–17.) Plaintiff followed
up by faxing Goliad Feed Company part of the Injunction. (Id. at 17.) The store
subsequently stopped selling SayWhoa! for approximately a week. (Id. at 21, 28.)
Also in August 2014, Danny Bostick (“Bostick”), the owner of B & S
Farm and Ranch, a store selling feed and horse products, called Plaintiff after
receiving a letter from Equine Colic Relief. (Dkt. # 99-6 ¶¶ 5–8.) During their
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conversation, Plaintiff allegedly stated that Stops Colic was taking her product,
diluting it with water, and relabeling it as SayWhoa! (Id. ¶ 7.) Following the
conversation, Bostick removed SayWhoa! from his shelves and threw away the
display. (Id. ¶ 8.)
Defendant also spoke with the owners of three other retail stores in the
latter half of 2014. Each stated that they had spoken with Plaintiff, who had
allegedly told them Defendant had stolen Plaintiff’s formula and was pouring
Plaintiff’s product into different bottles and selling it as SayWhoa!. (Dkt. # 99-4
¶¶ 20–28.) Circle P Ranch Supply, Inc., one of the three retailers, told Defendant
that it would no longer sell SayWhoa! because of Plaintiff’s comments. (Id. ¶ 25.)
Defendant filed the instant Motion for Order to Show Cause on
February 18, 2015, seeking to hold Plaintiff in contempt for violating the provision
of the Court’s Injunction prohibiting the parties from disparaging another party or
its products in any manner. (Dkt. # 99.) Plaintiff has not responded to the Motion.
DISCUSSION
“[T]he power to punish for contempt is an inherent power of the
federal courts,” and “includes the power to punish violations of their own orders.”
In re Bradley, 588 F.3d 254, 265 (5th Cir. 2009) (quoting United States v.
Fidanian, 465 F.2d 755, 757 (5th Cir. 1972)). “This power has been uniformly
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held to be necessary to the protection of the court from insults and oppression
while in the ordinary exercise of its duty, and to enable it to enforce its judgments
and orders necessary to the due administration of law . . . .” Id. (quoting Gompers
v. Buck’s Stove & Range Co., 221 U.S. 418, 450 (1911)).
“Civil contempt can serve two purposes”: either coercing compliance
with a court order or “compensat[ing] a party who has suffered unnecessary
injuries or costs because of contemptuous conduct.” Travelhost, Inc. v. Blandford,
68 F.3d 958, 961–62 (5th Cir. 1996) (citing Petroleos Mexicanos v. Crawford
Enters., 826 F.2d 392, 400 (5th Cir. 1987)). “A party commits contempt when he
violates a definite and specific order of the court requiring him to perform or
refrain from performing a particular act or acts with knowledge of the court’s
order.” Id. at 961. To hold a party in civil contempt, it must be found by clear and
convincing evidence that “(1) a court order was in effect, (2) the order required
specified conduct by the respondent, and (3) the respondent failed to comply with
the court’s order.” United States v. City of Jackson, 359 F.3d 727, 731 (5th Cir.
2004).
Here, Defendant has submitted evidence indicating that Plaintiff has
repeatedly violated the Injunction entered by the Court. Plaintiff’s alleged
statements to five different retailers contending that Defendant had stolen
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Plaintiff’s formula and was selling Plaintiff’s product as her own qualifies as
“disparaging, demeaning, or denigrating” statements about parties or their products
prohibited by the Injunction. Her alleged statement to an employee of Goliad Feed
Company that Defendant’s product had caused the death of a horse likewise
violates the Injunction’s requirements. In three instances, Plaintiff’s alleged
statements resulted in a retailer ceasing sales of Defendant’s product. Plaintiff has
not rebutted the evidence submitted by Defendant or submitted any argument
defending her alleged statements.
In light of the evidence submitted, the Court ORDERS that Plaintiff
Tara Flynn personally appear at the hearing on April 29, 2015 to show cause why
she should not be held in civil contempt. If Plaintiff fails to appear at the hearing
or otherwise fails to show cause why she should not be held in civil contempt, the
Court will order that Plaintiff be found in civil contempt.
CONCLUSION
For the foregoing reasons, Plaintiff is hereby ORDERED to appear
before this Court on April 29, 2015, to show cause why she should not be found in
civil contempt for violating the Agreed Permanent Injunction entered on July 7,
2014.
Because Plaintiff is currently pro se, IT IS FURTHER ORDERED
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that the Clerk of the Court shall send a copy of this Order to Plaintiff by certified
mail.
IT IS SO ORDERED.
DATED: San Antonio, Texas, April 1, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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