United States District Court, M.D. Tennessee, Nashville Division
Holmes, Magistrate Judge
MEMORANDUM AND ORDER FOR CONTEMPT AND SANCTIONS
AGAINST DEFENDANTS 1729172 ONTARIO, INC. AND GAI
H. SHARP, UNITED STATES DISTRICT JUDGE.
filed a Motion for Order to Show Cause Why Defendants Should
Not Be Held in Contempt and for Modification of the Order
Granting Preliminary Injunction. (Docket No. 309). The Court
will rule on Plaintiffs' Motion in a two-step process.
This Memorandum and Order concerns finding 1729172 Ontario,
Inc. and Gai Marcos (collectively, the “TriceraSoft
Defendants”) in civil contempt for having violated the
Preliminary Injunction (“Injunction”). A ruling
on Plaintiffs' request to modify the Injunction is
conducted a show-cause hearing on December 8, 2016, the Court
finds and orders as follows:
October 1, 2014, Plaintiffs filed this action against the
TriceraSoft Defendants alleging copyright infringement and
requesting injunctive relief. (Docket No. 1). Plaintiffs also
filed their Application for Temporary Restraining Order and
Preliminary Injunction. (Docket No. 2). On September 25,
2015, this Court entered an Order Granting Preliminary
Injunction against the TriceraSoft Defendants, enjoining them
from exploiting Plaintiffs' copyrighted compositions and
requiring numerous affirmative acts on the part of the
TriceraSoft Defendants to demonstrate compliance. (Docket No.
254). The Tricerasoft Defendants appealed the
Injunction, and the Injunction was affirmed in its entirety
by the United States Court of Appeals for the Sixth Circuit.
(Docket No. 430).
December 9, 2015, Plaintiffs filed a Motion for Order to Show
Cause Why Defendants Should Not Be Held in Contempt and for
Modification of the Order Granting Preliminary Injunction.
(Docket No. 309). The TriceraSoft Defendants opposed that
motion. The Court conducted a hearing on September 13, 2016,
at which time the Court concluded that sufficient evidence
existed in the record to require the TriceraSoft Defendants
to appear and show cause why they should not be found in
contempt of the Injunction. (Docket No. 506 at 21; Tr.
TriceraSoft Defendants objected to moving forward with the
hearing for a variety of reasons, one of which was their
objection to the Court's proceeding with a show-cause
hearing without first conducting a separate hearing on the
Motion for Order to Show Cause. (Docket No. 544 at 5).
Although the Court believed that it had sufficiently heard
and ruled on the motion to show cause, in order to resolve
that objection, during a phone conference on November 16,
2016 with the Court and all counsel (including the
Tricerasoft Defendants' counsel), the Court scheduled
another hearing on Plaintiffs' Motion for Order to Show
Cause for December 5, 2016. (Docket No. 551). The Court then
conducted the additional hearing as scheduled.
the Court granted Defendant Marcos's request to appear at
the December 5, 2016 hearing by telephone and supplied a
telephone number for him to call, (Docket No. 587), Defendant
Marcos failed to call the number supplied by the Court.
Defendant 1729172 Ontario, Inc., also failed to appear. The
Court waited an additional half hour past the appointed time
in case Defendants were simply running late.
Court found that Plaintiffs had established that the
TriceraSoft Defendants would be in violation of the
Injunction if the credible declarations submitted in support
of Plaintiffs' Motion for Order to Show Cause were
accurate. The Court then ordered the TriceraSoft Defendants
to appear on December 8, 2016 to show cause why they should
not be held in contempt for violating the Injunction. (Docket
Finding Defendants in Contempt and Imposing
orders and judgments of courts must be complied with
promptly[, ]” and failure to do so can result in a
finding of contempt. Maness v. Meyers, 419 U.S. 449,
458 (1975). “[C]ourts have inherent power to enforce
compliance with their lawful orders through civil
contempt.” Shillitani v. United States, 384
U.S. 364, 370 (1966) (citing United States v. United Mine
Workers of Am., 330 U.S. 258, 330-32 (1947)).
“Although civil contempt may serve incidentally to
vindicate the court's authority, its primary purposes are
to compel obedience to a court order and compensate for
injuries caused by noncompliance.” TWM Mfg. Co. v.
Dura Corp., 722 F.2d 1261, 1273 (6th Cir. 1983) (citing
McCrone v. United States, 307 U.S. 61, 64 (1939)).
“The contemnor is not simply being punished for past
behavior, but rather encouraged to shape its behavior to
comply with the order based on the undesirability of
suffering the sanction.” MGE UPS Sys., Inc. v.
Titan Specialized Servs., Inc., No. 3:04-0231, 2006 WL
3524502, at *12 (M.D. Tenn. Dec. 6, 2006) (citation omitted).
the purpose is to make the defendant comply, the court . .
. consider[s] the character and magnitude of the harm
threatened by continued contumacy, and the probable
effectiveness of any suggested sanction in bringing about the
result desired.” United Mine Workers of Am.,
330 U.S. at 304. “[A] court which has returned a
conviction for contempt must, in fixing the amount of a fine
to be imposed . . . as a means of securing future compliance,