Opinion
Case No. 2:03-CV-151 ST
May 5, 2003
CONTEMPT ORDER
On April 14, 2003, the Court heard oral argument on a motion by plaintiffs: Basic Research, L.L.C. ("Basic"), Grace Enterprises, L.L.C. ("Grace"), and Majestic Enterprises, Inc. ("Majestic") (collectively, "Plaintiffs"), against certain defendants: Myria Media, Inc.("Myria"), Betsy-Gartrell-Judd ("Judd"), Nancy Price ("Price") (collectively, the "Myria Defendants"). Plaintiffs were represented by James E. Magleby. The Myria Defendants were represented by Frank Call and Edwin S. Wall. Attorney Steven R. Paul made an appearance on behalf of other defendants, James Cox and Kyle Cox, and was excused from the proceedings on the basis that his clients were not the subject of the contempt motion.
Based upon the argument of counsel, the pleadings and papers filed by the parties, the pleadings and papers on file with the Court, the evidence presented and considered by the Court during the preliminary injunction hearing held on March 14 19, 2003, the Court's Preliminary Injunction Order of March 27, 2003, and for good cause shown, the Court hearby FINDS and ORDERS as follows:
1. To establish civil contempt, the Plaintiffs need show by clear and convincing evidence that (1) a valid court order existed; (2) the defendants had knowledge of the order; and (3) the defendants disobeyed the order. Bad Ass Coffee Co. of Hawaii, Inc. v. Bad Ass Coffee Limited Partnership, 95 F. Supp.2d 1252, 1256 (D.Utah 2000).
2. The Court finds that all three of the elements of civil contempt are met. The Court's March 27, 2002, Preliminary Injunction Order is a valid Order. A bond was posted by Plaintiffs on April 1, 2003. The Myria Defendants each had knowledge of the Order as each were properly served. The Myria Defendants disobeyed the March 27, 2003, Order, including by posting a link on ePregnancy.com directly to their new, competing website pregnancyandbaby.com, and sending e-mail from the ePregnancy.com email list to advertise pregnancyandbaby.com, as well as for others reasons stated by the Court at the hearing and set forth in Plaintiffs' papers.
3. The Myria Defendants therefore are in contempt of the Court's March 27, 2003, Preliminary Injunction Order.
4. The Court orders that the Myria Defendants and any of the Myria Defendants' officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Order by Personal service or otherwise, shall take all necessary steps, and shall cooperate with Plaintiffs as necessary, to immediately transfer and return actual control of the ePregnancy.com Internet site (including without limitation control over the domain name, administrative powers, the message boards, and the email list) to the control of Grace. Transfer of the site shall be completed by no later than 5:00 p.m. on Wednesday, April 16, 2003.
5. The Myria Defendants shall pay all attorneys fees and costs incurred by Plaintiffs in bring the Motion for Contempt. Plaintiffs' counsel shall submit an affidavit of attorney fees and supporting documents to the Court.
6. The Court is not awarding a fine at this time. However, the Court Orders the Myria Defendants and any of the Myria Defendants' officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them who receive actual notice of this Order by Personal service or otherwise, to cooperate in every way in transferring control of the ePregnancy.com internet site and to take all necessary actions to preserve all documents, date, and information that shows, reflects, relates to, or concerns, the source of the origin of internet traffic to the pregnancyandbaby.com site in general, and in particular whether or how much of that traffic originated with ePregnancy.com or from any email sent using the ePregnancy.com mailing list.
SO ORDERED.