United States District Court, S.D. Alabama, Southern Division
CONTEMPT AND SEIZURE ORDER
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court based on the failure of Defendant
Key Hotels of Atmore II, LLC; Defendant Anand Patel;
Defendant Dipan Patel; and Defendant Sarju Patel
(collectively, “Defendants”) to respond to the
March 28, 2017 Show Cause Order (Doc. 25), which the
undersigned issued as a result of a notice of Defendants'
non-compliance with this Court's November 9, 2016 Order
and Default Judgment filed by Plaintiff Choice Hotels
International, Inc. (“Choice Hotels”) (Doc. 24).
Choice Hotels filed a second notice of non-compliance upon
Defendants' failure to timely respond to the Show Cause
Order and now asks the Court find Defendants in civil
contempt. (Doc. 29). Upon consideration of the following, the
Court finds Defendants IN CIVIL CONTEMPT and ORDERS as fully
set forth below.
Court is empowered by 18 U.S.C. § 401 to punish parties
who violate its orders, injunctions, and judgments. “A
party seeking civil contempt bears the initial burden of
proving by clear and convincing evidence that the alleged
contemnor has violated an outstanding court order.”
CFTC v. Wellington Precious Metals, Inc., 950 F.2d
1525, 1529 (11th Cir. 1992). Upon a prima facie showing of a
violation, the burden shifts to the alleged contemnor to
defend his or her failure to comply by showing that, although
he or she may have taken all reasonable steps to comply, he
or she was unable to comply. United States v.
Rylander, 460 U.S. 752, 757 (1983). If the alleged
contemnor makes a sufficient showing, the burden shifts back
to the party seeking contempt who bears the ultimate burden
of ability to comply. Combs v. Ryan's Coal Co.,
785 F.2d 970, 984 (11th Cir.), cert. denied, 479
U.S. 853 (1986). Under normal circumstances a hearing is
necessary before an alleged contemnor may be found in
contempt; however, “when there are no disputed factual
matters that require an evidentiary hearing, the court might
properly dispense with the hearing prior to finding the
defendant in contempt and sanctioning him.” Mercer
v. Mitchell, 908 F.2d 763, 769 n.11 (11th Cir. 1990).
Order and Default Judgment included (1) a permanent
injunction with both a removal and compliance requirement;
(2) a surrender order; and (3) an accounting requirement.
Specifically, the Court ordered the following:
b. Defendants, their officers, agents, employees,
representatives, subsidiaries, successors, assigns, and any
persons or entities in active concert or participation with
Defendants, shall be and hereby are PERMANENTLY ENJOINED and
restrained from operating or doing business under any name or
mark that is likely to give the impression that the Motel is
licensed by Plaintiff.
c. Defendants are required to IMMEDIATELY remove any and all
QUALITY® branded signs, placards, and source indicators
from the Motel located at 1610 South Main Street, Atmore,
d. Within thirty (30) days of this Order, Defendants shall
file with the Court and serve on counsel for Plaintiff a
written statement made under oath setting forth all of the
steps taken to comply with this Order.
4. Defendants are ORDERED to deliver up to Plaintiff for
destruction all items, products, labels, signs, prints,
packages, wrappers, receptacles, and/or advertisements in
their possession or control bearing any of the QUALITY®
family of marks as described in footnote 1 or any mark
confusingly similar thereto within thirty (30) days of
receiving service of notice from Plaintiff as to where such
items are to be delivered.
5. Defendants are ORDERED to submit within thirty (30) days
of this Order a report in writing and under oath setting
forth the following: (1) the date upon which Defendants
ceased use of the QUALITY® family of marks at the Motel
and (2) an accounting of all gross profits received at the
Motel from August 29, 2013 through the date Defendants ceased
use of the QUALITY® family of marks.
(Doc. 20, pp. 16-18).
December 23, 2016, Choice Hotels filed its initial Notice of
Non-Compliance with the Court. (Doc. 24). Therein, Choice
Hotels supplied affidavit and photographic evidence that
Defendants failed to remove any and all QUALITY® branded
material. Id. Given Defendants' non-compliance,
the Court ordered Defendants show cause, no later than April
10, 2017 why they should not be held in contempt. (Doc. 25,
p. 2). Three of the four Defendants were properly noticed of
the Court's order by way of certified mail, return
receipt requested. (Doc. 26; Doc. 27; Doc. 28). April 10,
2017 came and went with no appearance or response by
Defendants. And Choice Hotels has, yet again, supplied
affidavit and photographic evidence showing Defendants still
make use of the QUALITY® family of marks in violation of
the Order and Default Judgment, at least as recently as April
11, 2017. (Doc. 29). Nevertheless, on April 17, 2017,
Defendant Sarju Patel, Defendant Anand Patel, and Defendant
Dipan Patel made some attempt at an appearance and filed with
the Court a handwritten “response” to the Show
Cause Order. (Doc. 30). Even so, the Court finds this
“response” insufficient to show Defendants should
not be held in civil contempt for two reasons. First,
Defendants' filing is untimely. Second, the
“response” is vague, contains inconsistencies,
and does not satisfy the Court that Defendants have taken all
reasonable steps to comply with the Court's Order or
intend to do so within a reasonable time.
Choice Hotels has carried its burden and established by clear
and convincing evidence that Defendants' continued use of
the QUALITY® family of marks constitutes both a direct
violation of the Court's Order and an on-going
infringement of Choice Hotels' trademark rights. Further,
Defendants' own “response” shows they do not
dispute their lack of compliance with the Court's Order.
Given this, a ...