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George G. Harris T/A Wildlife Collection v. Pat Wrob

February 29, 2012

GEORGE G. HARRIS T/A WILDLIFE COLLECTION PLAINTIFF,
v.
PAT WROB, INDIVIDUALLY AND JOINTLY, T/A RIVERS EDGE PRODUCTS ET AL., DEFENDANTS.



The opinion of the court was delivered by: E. Richard Webber Senior United States District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on Plaintiff George G. Harris's, trading as Wildlife Collection, Motion for Contempt [ECF No. 32]. The Court heard oral arguments on the Motion on October 18, 2011.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff George G. Harris, trading as Wildlife Collection, designs and sculpts wildlifethemed pewter pins. He owns over 550 copyrighted designs and sells the pins made from his designs to stores and organizations worldwide.

On August 1, 1997, Plaintiff filed a copyright infringement suit against Defendants Pat Wrob, individually and jointly, doing business as Rivers Edge Products; RiversEdge Products, Inc.; Rocking P, Inc.; and Sportsman's Supply, Inc. In 1998, the parties executed a confidential Settlement Agreement and stipulated to entry of a Consent Judgment. On May 21, 1998, the Court signed the Consent Judgment, which permanently enjoins Defendants from:

(a) selling, offering for sale, advertising, trading, bartering, disposing, taking orders, placing orders, facilitating the placement or delivery of orders, and, or receiving monetary gain for the sale or transfer of any of the pins shown in Exhibit A, attached hereto, excluding items nos. 121, 122, 317, 318, 520, 521, and 522 on page 1 and including items Q and R on page 2 of Exhibit A. (b) distributing promotional material which displays the above listed items.

Pl.'s Exh. A, at 1-2, ECF No. 33-2. "Exhibit A" is a copy of Defendants' catalog that contains images of the enjoined pin designs. Id. at 4-9. The images of the pins are clearly marked with item numbers. Id. Pursuant to a settlement agreement, Defendants' remaining inventory of the enjoined pins were "either destroyed or returned to Mr. Harris." Wrob Decl. ¶ 15, ECF No. 47-1.

In April 2011, Plaintiff learned from Todd Murphy, an acquaintance and customer, that pewter wildlife pins resembling his designs were being offered for sale at the lodge of Bennett Spring State Park in Lebanon, Missouri. Murphy Decl. ¶ 3-4. The pins were attached to a RiversEdge product card. Id. at ¶ 4. Murphy purchased three pins from the store. Id. at ¶ 5. Murphy then contacted RiversEdge directly to purchase more pins. Id. at ¶ 6. A RiversEdge worker emailed Murphy a website link advertising numerous pins of the enjoined designs. Id. After speaking with Plaintiff, Murphy purchased over $150 worth of pins from Defendants' website. Id. at ¶ 6-7. Plaintiff received the purchased pins from Murphy and noted that they were "mirror image" copies of his designs that Defendants had been enjoined from advertising or selling. Hr'g Tr. 17; ECF No. 55. Plaintiff then independently conducted an internet search for other enjoined designs being sold by Defendants. Id. at 18. Plaintiff found the enjoined designs on PrintFish1.com's website and purchased some pins from that website.*fn1 Id. at 18-19.

After this investigation, Plaintiff sent a demand letter to Defendants with a copy of this pending Motion offering to settle for a one-time payment of $115,000. Id. at 63-64. Defendants did not respond to the demand letter. Plaintiff then moved the Court to hold Defendants in contempt for violating the terms of the Consent Judgment. Defendants did not file a response to the motion, and on September 15, 2011, the Court ordered Defendants to show cause why the motion should not be granted. [ECF No. 40]. Defendants eventually responded. [ECF No. 47]. A hearing was held on October 18, 2011. Both parties filed post-hearing briefs in support of their positions. [ECF Nos. 63, 66].

II. LEGAL STANDARD

Title 18 U.S.C. § 401(3) gives a federal court the power to punish "by fine or imprisonment, at its discretion . . . [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command." The party seeking a civil contempt order must show by clear and convincing evidence that the alleged contemnor violated a court order. Chicago Truck Drivers, Helpers, & Warehouse Workers Union Pension Fund v. Bhd. Labor Leasing, 207 F.3d 500, 505 (8th Cir. 2000). "A contempt order must be based on a party's failure to comply with a 'clear and specific' underlying order." Chaganti & Associates, P.C. v. Nowotny, 470 F.3d 1215, 1223 (8th Cir. 2006) (quoting Int'l Bhd. of Elec. Workers, Local Union No. 545 v. Hope Elec. Corp., 293 F.3d 409, 418 (8th Cir. 2002)).

Once the movant meets his or her burden, the burden of proof shifts to the alleged contemnor to prove a defense. Chicago Truck, 207 F.3d at 506. One such defense is an inability to comply with the underlying order. Id. "[A]lleged contemnors defending on the ground of inability must establish: (1) that they were unable to comply, explaining why 'categorically and in detail,' (2) that their inability to comply was not 'self-induced,' and (3) that they made 'in good faith all reasonable efforts to comply[.]'" Id. (internal citations omitted).

III. DISCUSSION

Plaintiff asserts that his moving papers and the hearing transcript [ECF No. 55] set forth incontrovertible evidence that Defendants willfully violated the clear and specific Consent Judgment and, therefore, the Court should hold Defendants in contempt. Plaintiff seeks compensatory damages, including enhanced willful statutory damages, costs, and attorney's fees, and any other relief the Court deems proper.

Defendants respond that the Court never enjoined specific wildlife designs, but rather, the Court enjoined activity involving specific wildlife pins. According to Defendants, the Consent Judgment narrowly restricts their behavior. Defendants state that this Motion asserts a new copyright infringement claim. Defendants concede that some of the images of the enjoined designs appeared on their website by mistake. Defendants state that after they signed the Consent Judgment, they hired an artist to design new artwork from which the pins now are made. Defendants assert that sales of the fish pins over the past two years have totaled less than $2000. Therefore, they contend that any violation of the Consent Judgment was unintentional and any harm caused by such conduct was minimal.

A. The Consent Judgment is Clear and Specific

In this case, the underlying order is the Consent Judgment signed by the Court, Plaintiff, and Defendants on May 21, 1998. The language of the Consent Judgment clearly and unambiguously prohibits Defendants from "selling, offering for sale, [or] advertising . . ." the enjoined designs. It also describes with specificity the enjoined designs by providing a ...


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