Opinion
97 Civ. 7102 (LAK)
July 12, 2000
ORDER
Plaintiff moves for an order enforcing the judgment and holding defendants Thomas and Myriam Tashey and Gem Quality Institute, Inc. (collectively, the "Tasheys") in contempt of the permanent injunction issued after trial.
As plaintiff acknowledges, a civil contempt adjudication is appropriate where there is a clear an unambiguous order, clear and convincing proof of noncompliance and a failure to seek to comply in a reasonably diligent manner. Plaintiff has failed to establish these elements.
Plaintiff first complains that two open letters the Tasheys posted on an electronic bulletin board called Polygon constituted promotional material barred by the judgment absent plaintiff's consent, which was not obtained. The Court agrees that those letters constituted promotional material within the intendment of the judgment. That characterization, however, perhaps was debatable. The Tasheys posted the letters only after receiving advice of counsel. While counsel's judgment proved incorrect, the Tasheys cannot be held in contempt for their past conduct in this regard. Comparable future behavior, however, would be another matter.
Plaintiff next complains, upon information and belief, that the Tasheys must have provided information to the trade press in violation of the judgment that resulted in articles that plaintiff evidently finds distasteful. Thomas Tashey admits that he responded to press inquiries. (Tashey Decl. ¶ 3) The judgment did not unambiguously preclude his doing so.
Third, plaintiff argues that the Tasheys have violated the judgment by continuing to use forms bearing the EGL Marks without EGL's prior approval. There is no convincing proof that they did not diligently seek to comply with this aspect of the judgment, which plaintiff acknowledges would require some transition period.
Fourth, plaintiff contends that the Tasheys continued to display prohibited material on their web site. The evidence establishes, however, that this was inadvertent and stopped when it came to their attention.
Finally, plaintiff seeks a contempt citation based upon the Tashey's failure to pay the money portion of the judgment. A civil judgment awarding a sum of money, however, is not enforceable in the present circumstances of this case by contempt.
Accordingly, plaintiff's motion is denied in all respects. The Tasheys, however, are cautioned that the Court will not tolerate future failures to comply strictly with the injunction in the judgment in this case.
SO ORDERED.