Opinion
Case No. 1:13-cv-00114-RJS-DBP
10-16-2015
CRAZY ATV, Inc. Plaintiff, v. KEVIN MATTHEW PROBST, VINYL ACCESS, LLC, Defendants.
REPORT AND RECOMMENDATION District Judge Robert J. Shelby Magistrate Judge Dustin B. Pead
I. INTRODUCTION
This copyright infringement matter was referred to the court under 28 U.S.C. § 636(b)(1)(B). (Dkt. 18.) Plaintiff is Crazy ATV, Inc. Defendants are Kevin Matthew Probst and Vinyl Access, LLC. On July 3, 2014, the district court issued a permanent injunction against Probst and Vinyl Access. (Dkt. 24.) This permanent injunction remains in effect. (See, e.g., Dkt. 64.) The injunction prohibits Defendants and their "respective agents, employees, officers, successors, licensees, and assigns, and all persons acting in concert or participation with" them from "making any further complaints" to any resellers of Crazy ATV's ("Plaintiff" or "CATV") products, or contacting resellers in an effort to interfere with CATV's economic relations. (Dkt. 24.) The injunction also required Probst and Vinyl Access to "[f]ormally withdraw, in writing, all complaints filed against CATV with Amazon.com, Etsy.com, eBay.com, and any other reseller of Plaintiff's products to which a complaint has been submitted regarding CATV's account and/or products." (Id.) This court previously recommended the district court compel Probst to comply with the injunction, and provide certification that he had done so. (Dkt. 57.) The district court adopted that recommendation and ordered Probst to certify that he had withdrawn all complaints filed against Plaintiff with Amazon.com, Etsy.com, eBay.com, and any other reseller of Plaintiff's products. (See Dkt. 61.) The court now considers Plaintiff's renewed motion to compel compliance with the permanent injunction and for contempt sanctions. (Dkt. 69.). Probst submitted several items apparently intended as an opposition to Plaintiff's motion. These items have been docketed. (Dkt. 71.) Probst subsequently sent another set of documents via mail to the court. The district court has already admonished Probst that he may not mail documents to chambers to effect filing. (See Dkt. 68 at 1 n.1.) Accordingly, this court declines to docket Probst's mailing. These materials are duplicative of Probst's other filings. The materials are appended to this report and recommendation to complete the record, but otherwise will be returned to Probst without consideration.
Defendant Probst filed an appeal of this injunction with the Tenth Circuit, but that appeal was dismissed for lack of prosecution. (Dkt. 47-49, 62.)
II. PLAINTIFF'S RENEWED MOTION TO COMPEL COMPLIANCE WITH PERMANENT INJUNCTION AND FOR CONTEMPT ORDER
a. Request for contempt sanctions
The court begins with a discussion of its somewhat circumscribed powers over civil contempt proceedings. In a matter referred to a magistrate judge under 28 U.S.C. 636(b) in which the magistrate judge believes an act of civil contempt has been committed:
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge.28 U.S.C.A. § 636(e). In certifying the facts under Section 636(e), the magistrate judge's role is "to determine whether the moving party can adduce sufficient evidence to establish a prima facie case of contempt." Bowens v. Atl. Maint. Corp., 546 F. Supp. 2d 55, 71 (E.D.N.Y. 2008). Before a district court may impose contempt sanctions, it must first hold an evidentiary hearing to make de novo factual determinations, including relevant credibility determinations. Id. (citing Taberer v. Armstrong World Indus., Inc., 954 F.2d 888 (3d Cir. 1992). With this court's role thus defined, it turns now to the standard for civil contempt proceedings.
Plaintiff also suggests Probst has committed criminal contempt. The court does not find that a criminal referral for contempt is warranted on the facts presented, though such referral may later become appropriate if Probst's contumacious behavior continues or worsens.
"In a civil contempt proceeding, the complainant 'has the burden of proving, by clear and convincing evidence, that a valid court order existed, that the defendant had knowledge of the order, and that the defendant disobeyed the order.'" Bad Ass Coffee Co. of Hawaii v. Bad Ass Coffee Ltd. P'ship, 95 F. Supp. 2d 1252, 1256 (D. Utah 2000). The first and second requirements do not appear disputed. Probst became aware of the district court's permanent injunction shortly after it was entered. The issue here is whether Probst has complied with that order.
Probst attempted to set that order aside on July 16, 2014. (See Dkt. 26.) Accordingly, he had notice of the order at least by that time.
1. Complaints made by Probst personally
"[A] district court is justified in adjudging a person to be in civil contempt for failure to be reasonably diligent and energetic in attempting to accomplish what was ordered." Id. (citing Goluba v. School District of Ripon, 45 F.3d 1035 (7th Cir. 1995). Probst has not been reasonably diligent or energetic in complying with the portion of the district court's July 3 Order requiring him to "[f]ormally withdraw, in writing, all complaints filed against CATV with Amazon.com, Etsy.com, eBay.com, and any other reseller of Plaintiff's products to which a complaint has been submitted regarding CATV's account and/or products." (Dkt. 24.) Nor has Prost adequately complied with the district court's subsequent order compelling Probst to certify that the formal withdrawal had been accomplished. (See Dkt. 61.).
First, Probst submitted nothing that might indicate he attempted to withdraw the complaints until he was compelled to do so. The district court entered its order, including the injunction, on July 3, 2014. This injunction required Probst to withdraw all complaints with the entities identified above. (See Dkt. 24.) Yet, Probst apparently made no effort to withdraw the complaints as ordered. On July 21, 2014, Plaintiff filed a motion to compel compliance with the injunction. (Dkt. 27.) On March 4, 2015, this court recommended that the district court grant Plaintiff's motion to compel compliance with the injunction. (Dkt. 57.) The district court adopted that report and recommendation on March 23, 2015. (Dkt. 61.) There is no evidence that Probst attempted to withdraw his complaints before he was compelled to do so. Further, after the district court compelled compliance, Probst made only a single anemic effort via email to withdraw his complaints. Probst sent an email dated March 29, 2015, to each entity mentioned in the district court's order: Amazon.com, eBay.com, and Etsy.com. (Dkt. 66 at 7.) The email states:
I Kevin Probst, withdraw all complaints that I, Kevin Probst, have filed against Crazy ATV on the following Platforms: Amazon.com, eBay.com, Etsy.com. Any complaints filed by Kevin Probst are withdrawn. Please note, for your records, the email addresses that this email was sent to.(Id. (capitalization normalized)) While this might appear to be a step towards compliance, Probst obfuscated when he responded to inquiries made regarding this email. See infra, Part II.b.2.A. Additionally, Probst's mandate was to formally withdraw the complaints in writing, not send a cursory email. To the extent this email evidences any attempt to comply with the district court's orders, it is inadequate. Probst has not offered evidence of any further attempt to withdraw his complaints.
Next, it is difficult to decipher from Probst's various filings whether he has attempted to certify to the court that he has formally withdrawn these complaints. Probst submitted a copy of his emails and a document asserting he should not be held in contempt. (Dkt. 66.) Probst also argues that he complied with the court's order. (See Dkt. 71 at 2.) These statements are not an explicit certification to the court that Probst has complied with the injunction in the July 3 Order as he was subsequently compelled to do. (See Dkt. 61.) Given that Probst is representing himself, it is not clear if his statements represent argument or certification. Standing in isolation, an ambiguous attempt at certification alone might not bear on contempt, but in context, Probst's email and statement in his filings evidence a failure to adequately comply with the district court's command. Moreover, any claim of compliance is belied by the evidence that Probst made complaints using pseudonyms, which he has not attempted to withdraw. See infra Part II.a.2.
Additionally, Probst has also acted antagonistically with Plaintiff's counsel via email. According to counsel's affidavit, Probst wrote an email stating: "This is a very simple concept [counsel], and I know that you must have some degree of intellect to have passed the bar. So I encourage you to use that intellect." (Dkt. 69, Ex. A.) Probst continues, "I'll ask you not to waste any[ ]more of my time with this nonsense based on your ludicrous assumptions and absolutely no facts." (Id.) This is a continuation of the conduct that Probst engaged in previously, as discussed in this court's March 4, 2015 Report and Recommendation. (Dkt. 57 (stating the court did not condone of language such as: "I swear you will not recover from that. You will regret it forever. This is the end of our communication and your business.")) Unfortunately, the court's disapproval of Probst's conduct appears to have been insufficient motivation for Probst to end it. This conduct further underscores Probst's lack of diligence, if not disinterest, in complying with the permanent injunction and order to compel.
Based on Probst's lack of sincere effort and antagonistic attitude, Plaintiff has made a prima facie showing that Probst is in contempt of the permanent injunction and subsequent order to compel requiring him to withdraw complaints he submitted personally. Unfortunately, his purported contumacious behavior does not end there.
2. Complaints made by Probst using pseudonyms
Plaintiff has provided sufficient evidence to persuade this court that Probst made several complaints using pseudonyms. First, Plaintiff received a copyright complaint made against its vendor account on Etsy.com on September 22, 2013, from a user called "onegour." On September 26, 2013, onegour again contacted Plaintiff and provided a list of Plaintiff's products that onegour claimed violated onegour's copyrights. (Dkt. 22, Ex. B at 6.) Etsy.com provided a subpoena response indicating that user onegour (name provided as Randy Geister) logged in to Etsy.com from IP address 75.76.33.105 on September 26, 2013, at 11:28 p.m. Eastern Daylight Time ("EDT"); and from IP address 24.214.141.46 on September 22, 2013, at 3:04 p.m. EDT. (Dkt. 22, Ex. B at 4-5.) Probst's Internet service provider, Knology, Inc., provided a subpoena response indicating that Probst was assigned the IP address 75.76.33.105 from 10:46 p.m. EDT on September 26, 2013, until 11:16 p.m. EDT the following day. (Dkt. 22, Ex. C at 7.) The same subpoena response indicates that Probst was assigned the IP address 24.214.141.46 from 2:11 p.m. EDT on September 22, 2013, until the afternoon of the following day. (Id.)
Additionally, Etsy identified user onegour's email address as "onegour@gmail.com." (Dkt. 22, Ex. 1 at 4.) In response to Plaintiff's subpoena, Google.com provided login information related to the email address onegour@gmail.com. (See id. at 8-9, 12.) Google.com indicated that the onegour@gmail.com email account was accessed by the same IP addresses mentioned above at the times Probst had been assigned those IP addresses. Google indicated that IP address 24.214.141.46 accessed the onegour@gmail.com email account at 2:23 p.m. EDT on September 22, 2013, and that IP address 75.76.33.105 accessed the email account at 10:59 p.m. EDT on September 26, 2013. As discussed above, Probst's Internet service provider confirmed that Probst had been assigned these IP addresses during the given times. (See Dkt. 22, Ex. 2 at 5, 7.)
Google.com provided timestamps in "UTC" format. UTC stands for Coordinated Universal Time. See Taylor v. United States, 139 F. Supp. 2d 1201, 1202 (D. Utah 2001). The court notes that UTC times can be converted to EDT by subtracting four hours. See Zinn v. United States, 835 F. Supp. 2d 1280, 1287 (S.D. Fla. 2011). --------
Plaintiff also submitted documents provided by Amazon.com in response to Plaintiff's subpoena. These documents appear to contain a complaint made by Randy Geister using the email address onegour@gmail.com. (Dkt. 22, Ex. 1 at 16, 18-19.) Plaintiff submitted documents from eBay.com, but the court is unable to identify a particular complaint that can be attributed to Probst. (Dkt. 22 at 20-28.) Based on the foregoing, the court is persuaded that Probst has not complied with the district court's commands. (See Dkt. 24; Dkt. 61.)
Probst claims that he is not responsible for submitting these complaints and thus he cannot withdraw them. (Dkt 71 at 2-3.) A party resisting a motion for contempt sanctions who claims inability to comply with a court's mandate has the burden to produce specific evidence of his inability to comply. See Heinold Hog Mkt., Inc. v. McCoy, 700 F.2d 611, 615 (10th Cir. 1983) (finding that a movant "need prove only that the defendant has failed to comply with a valid court order. It need not prove that the [nonmoving party] is able to comply."). Probst provides no such evidence. Instead, Probst speculates that another competitor of Plaintiff's may have found Probst's address and hacked his personal network to make the postings appear to have been made by Probst. (Dkt. 71 at 2.) Any credibility determination will ultimately be made by the district court, but Probst's speculation is insufficient to refute Plaintiff's prima facie evidence of contempt. Further, Probst's statements and conduct tend to suggest he is disinterested in complying with the district court's command.
Next, Probst cites to an article discussing a copyright case for the proposition that an Internet protocol address ("IP address") cannot be used to identify a person. (Dkt. 71.) The article appears to refer to an unpublished decision in a case dismissed by the Southern District of Florida. See Malibu Media, LLC, v. John Doe, No. 14-cv-20213 (D. Fl. Mar. 19, 2014). As the title of that case suggests, the identity of the defendant was unknown. On the facts of that case, the court found that IP address information combined with geolocation software failed to establish evidence of the unidentified defendant's conduct in the forum. Id. There was no per se rule adopted that an IP address is inadmissible for any purpose. Here, Probst's identity is known to Plaintiff, and Probst's Internet provider has identified Probst as the person assigned the IP addresses at the time the complaints were made. As discussed above, Probst must refute this evidence, or come forward with evidence of his own to establish that he cannot withdraw the complaints identified.
A. Probst's email response to Etsy.com.
Plaintiff's evidence discussed above makes Probst's email response to Etsy.com particularly troubling. After Probst sent his email purporting to withdraw his complaints, Etsy.com responded requesting additional information because it could find no complaints from kmprobst@yahoo.com and no Etsy user called Crazy ATV. (See Dkt. 66 at 5.) Probst responded:
You are correct. I have never filed a complaint with you before. But there is an individual in the state of Utah, who possesses all of the signs and symptoms of a paranoid schizophrenic, who seems to think that I have. So I had to send this email[.] I'm sorry for wasting your time[;] have a blessed day.(Id.) As discussed above, Plaintiff has submitted evidence that convinces this court that Probst, or a person working in concert with him, is responsible for the onegour Etsy complaint. Probst has not refuted this evidence. Accordingly, Probst appears at this point to be deliberately defying the district court's order to withdraw his complaints.
Based on the foregoing, the court RECOMMENDS the district court order Probst to show cause why he should not be found to be in contempt, including a de novo review of the parties' evidence regarding Probst's alleged contempt. Given the standard of review at the hearing, each party should be prepared to provide evidentiary support for any argument they intend to make.
b. Motion to compel
Probst has once again failed to comply with the district court's orders. Plaintiff requests that the court impose additional specific requirements on Probst to compel compliance with the court's permanent injunction order. To the extent Plaintiff seeks an order compelling compliance with the permanent injunction, the motion appears moot. Probst has been compelled to comply with the order, though he has failed to do so. Accordingly, the court FINDS MOOT the portion of the motion seeking to compel Probst to comply with the permanent injunction. Probst remains bound, as he has since July 3, 2014, to comply with the injunction. To the extent Plaintiff seeks modification of the injunction; such relief is best addressed by the district court after its review of its review of the evidence.
III. CERTIFIED FACTS
Consistent with the procedures set forth in the 28 U.S.C. § 636(e), the court certifies the following facts to the district court:
1. On July 3, 2014, the district court issued an order that included a permanent injunction imposing certain restrictions and requirements on Probst and Vinyl Access ("July 3 Order"). (Dkt. 24.)
2. The injunction required Probst, and his "respective agents, employees, officers, successors, licensees, and assigns, and all persons acting in concert or participation with" Probst to:
(Dkt. 24.)a. Cease from making any further complaints, including complaints containing allegations of copyright or other intellectual property infringement, to Amazon.com, Etsy.com, eBay.com, or any other reseller of CATV's products;
b. Cease from making any further contact with Amazon.com, Etsy.com, eBay.com, or any other reseller of CATV's products in an effort to interfere with CATV's economic relations; and
c. Formally withdraw, in writing, all complaints filed against CATV with Amazon.com, Etsy.com, eBay.com, and any other reseller of Plaintiff's products to which a complaint has been submitted regarding CATV's account and/or products.
3. On July 16, 2015, Defendant Probst attempted to set aside the July 3 Order. (See Dkt. 26, 47-49, 62.)
4. On July 21, 2014, Plaintiff filed a motion to compel compliance with the injunction in the July 3 Order. (Dkt. 27.)
5. Upon this court's recommendation, the district court granted Plaintiff's motion to enforce compliance with the injunction in the July 3 Order on March 23, 2015, reminded Probst he was bound to comply with the July 3 Order, and instructed Probst to certify to the court within fourteen days that he has formally "withdrawn all complaints filed against CATV with Amazon.com, Etsy.com, eBay.com, and any other reseller of Plaintiff's products." (Dkt. 61.)
6. The first evidence appearing in the docket that demonstrates any attempt by Probst to comply with the July 3 Order is a March 29, 2015, email directed to each entity
mentioned in the district court's order: Amazon.com, eBay.com, and Etsy.com purporting to withdraw Probst's complaints. (Dkt. 66 at 7.) The email states:
(Id (capitalization normalized).)I Kevin Probst, withdraw all complaints that I, Kevin Probst, have filed against Crazy ATV on the following Platforms: Amazon.com, eBay.com, Etsy.com. Any complaints filed by Kevin Probst are withdrawn. Please note, for your records, the email addresses that this email was sent to.
7. Probst has consistently used antagonistic language in his emails with Plaintiff and its counsel regarding compliance with court orders, including but not limited to:
a. "That is a bad decision you made Brett. I swear you will not recover from that. You will regret it forever. This is the end of our communication and your business." (Dkt. 27.)
b. "This is a very simple concept [counsel], and I know that you must have some degree of intellect to have passed the bar. So I encourage you to use that intellect." (Dkt. 69, Ex. A.)
c. "I'll ask you not to waste any[ ]more of my time with this nonsense based on your ludicrous assumptions and absolutely no facts." (Id.)
8. Plaintiff received a copyright complaint made against its vendor account on Etsy.com on September 22, 2013, from a user called "onegour." On September 26, 2013, onegour again contacted Plaintiff and provided a list of Plaintiff's products that onegour claimed violated his copyrights. (Dkt. 22, Ex. B at 6.)
9. Etsy.com provided a subpoena response indicating that user onegour (also known as Randy Geister) logged in from IP address 75.76.33.105 on September 26, 2013, at 11:28 p.m. Eastern Daylight Time ("EDT"); and from IP address 24.214.141.46 on September 22, 2013, at 3:04 p.m. EDT. (Dkt. 22, Ex. B at 4-5.)
10. Probst's Internet service provider, Knology, Inc., provided a subpoena response indicating that Probst was assigned IP address 75.76.33.105 from 10:46 p.m. EDT on September 26, 2013, until 11:16 p.m. EDT the following day. (Dkt. 22, Ex. C at 7.) The same subpoena response indicates that Probst was assigned the IP address 24.214.141.46 from 2:11 p.m. EDT on September 22, 2013, until the afternoon of the following day. (Id.)
11. Etsy identified onegour's email address as "onegour@gmail.com." (Dkt. 22, Ex. 1 at 4.)
12. In response to Plaintiff's subpoena, Google.com indicated that IP address 24.214.141.46 accessed the onegour@gmail.com email account at 2:23 p.m. EDT on September 22, 2013, and that IP address 75.76.33.105 accessed the email account at 10:59 p.m. EDT on September 26, 2013. (Dkt. 22, Ex. 1 at 8-9, 12.)
13. Probst submitted no evidence contrary to the records submitted by Plaintiff, though he does posit that another competitor of Plaintiff's may have found Probst's home address and compromised his personal network to make the postings appear to have been made by Probst. (See Dkt. 71 at 2.)
14. After Probst sent his email purporting to withdraw his complaints, Etsy.com responded to request additional information because it could find no complaints from kmprobst@yahoo.com and no Etsy user called Crazy ATV. (See Dkt. 66 at 5.) Probst responded:
(Id. (errors in original).)You are correct. I have never filed a complaint with you before. But there is an individual in the state of Utah, who possesses all of the signs and symptoms of a paranoid schizophrenic, who seems to think that I have. So I had to send this email I'm sorry for wasting your time have a blessed day.
IV. RECOMMENDATION
For the reasons discussed above, the court RECOMMENDS the district court order Probst to appear before it and show cause why he should not be adjudged in contempt.
Copies of the foregoing Report and Recommendation are being sent to all parties who are hereby notified of their right to object. Within fourteen (14) days of being served with a copy, any party may serve and file written objections. Failure to object may constitute a waiver of objections upon subsequent review.
Dated this 16th day of October, 2015.
By the court:
/s/_________
Dustin B. Pead
United States Magistrate Judge
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