e-Image Data Corporation v. Beaton et al
Filing
65
ORDER for Final Judgment, signed by Chief Judge Charles N Clevert, Jr on 11/15/2011. (cc: all counsel)(nts)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
e-IMAGE DATA CORPORATION,
Plaintiff,
v.
Case No. 10-C-0764
EVIS R. BEATON,
DOCUMENT IMAGING SUPPLY CO.,
MICROFILMSHOP.COM, INC.,
Defendants.
ORDER FOR FINAL JUDGMENT
Upon consideration of plaintiff’s Motion for Sanctions, plaintiff’s memorandum in
support of its motion, declarations and attachments thereto, and oral arguments
presented at today’s hearing, the court finds as follows:
1.
On February 10, 2011, plaintiff served Microfilmshop.com, Inc., with
discovery requests.
2.
Microfilmshop.com, Inc., failed to timely respond to the discovery requests
and plaintiff filed a motion to compel production.
3.
On May 31, 2011, this court ordered Microfilmshop.com, Inc., to “respond
fully to all plaintiff’s discovery requests to date by producing documents
and information within the care, custody or control of it’s employee’s,
officers or agents, including Evis R. Beaton (Beaton), within five calendar
days.” (Doc. No. 50.)
4.
Microfilmshop.com, Inc., has failed to comply with the court’s order.
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5.
On Tuesday, October 18, 2011, this court sent notice of the hearing on
plaintiff’s Motion for Sanctions.
6.
On Thursday, November 10, 2011, this court’s staff spoke with Beaton
and communicated the request that he participate in the motion hearing
telephonically.
7.
Beaton refused to participate in the November 15, 2011, hearing before
the court. For these reasons,
IT IS ORDERED, ADJUDGED AND DECREED:
1.
Pursuant to Rule 37(b)(2)(I), Fed. R. Civ. P., that the following facts are
taken as established for purposes of this action:
(a)
The average number of plaintiff’s ScanPro (all models) units sold by
Defendants while operating as a reseller of Plaintiff’s products in calendar years 20032007 was 48 units.
(b)
That plaintiff’s net profit on 48 ScanPro 2000 in 2010 units through
a reseller is $172,719.12.
(c)
The plaintiff’s lost profits as a result of Microfilmshop.com’s
misconduct from January 2010 until February 2011 is $187,112.38.
IT IS FURTHER ORDERED,
2.
Pursuant to Rule 37(b)(2)(vii), Fed. R. Civ. P., that Microfilmshop.com and
its president, Beaton are in civil contempt.
IT IS FURTHER ORDERED,
3.
As a result of Beaton’s willful failure to comply with the court’s orders and
willful obstruction of justice, including but not limited to failure to defend this action by
participating in the hearing in this matter on November 15, 2011, and pursuant to Rule
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37(b)(2)(iii) and 37(b)(2)(vi), Fed. R. Civ. P., that the Answer of Beaton in this matter is
stricken and that default judgment is granted to plaintiff, e-ImageData Corp., as against
Beaton.
IT IS FURTHER ORDERED,
4.
Defendants Microfilmshop.com, Inc., and Beaton are jointly and severally
liable to the plaintiff e-ImageData Corp. in the amount of $187,112.38 in damages,
$87,886.00 in attorneys’ fees and $3,459.04 in costs for a total judgment in the amount
of $278,457.42.
IT IS FURTHER ORDERED,
5.
The Clerk of Court shall enter final judgment in favor of plaintiff e-
ImageData Corp. as against Beaton and Microfilmshop.com, Inc., jointly and severally,
in the total amount of $278,457.42.
IT IS FURTHER ORDERED,
6.
(a)
Microfilmshop.com, Inc., or any entity associated with or on behalf
of Microfilmshop.com, Inc., is permanently enjoined and restrained, directly or indirectly,
and whether alone or in concert with others, from using the SCANPRO trademark, eImageData’s trade name or any mark that is confusingly similar to either the SCANPRO
mark or the e-ImageData trade name, including, but not limited to, reference to the
SCANPRO trademark on Microfilmshop.com, Inc.’s website www.microfilmshop.com or
any additional website created by Microfilmshop.com, Inc., in the future, and all
keywords purchased by Microfilmshop.com, Inc., relating to the SCANPRO mark or eImageData.
(b)
Evis R. Beaton, or any entity associated with or on behalf of
Beaton, is permanently enjoined and restrained, directly or indirectly, and whether alone
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or in concert with others, from using the SCANPRO trademark, e-ImageData’s trade
name or any mark that is confusingly similar to either the SCANPRO mark or the eImageData trade name, including, but not limited to, reference to the SCANPRO
trademark on website www.microfilmshop.com or any website created by Evis R.
Beaton, or any entity associated with him, in the future, and all keywords purchased by
Evis R. Beaton relating to the SCANPRO mark or e-ImageData.
Dated at Milwaukee, Wisconsin, this 15th day of November, 2011.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
CHIEF U. S. DISTRICT JUDGE
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