Opinion
3:16-CV-1322-JAH-KSC
03-17-2022
THE AMERICAN REGISTRY OF RADIOLOGIC TECHNOLOGISTS, Plaintiff v. KEITH MOULTRY, Defendant
LYNNDA A. MCGLINN - SBN 161756 DORSEY & WHITNEY LLP Attorney for Plaintiff The American Registry of Radiologic Technologists
Complaint filed: June 2, 2016
Default entered: Jan. 20, 2017
Default judgment entered: Aug. 14, 2017
LYNNDA A. MCGLINN - SBN 161756 DORSEY & WHITNEY LLP Attorney for Plaintiff The American Registry of Radiologic Technologists
ORDER:
1. GRANTING PLAINTIFF'S MOTION FOR ORDER TO SHOW CAUSE (ECF No. 40)
2. SETTING ORDER TO SHOW CAUSE HEARING DATE AND BRIEFING SCHEDULE
JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter comes before the Court on Plaintiff's Motion for Order to Show Cause (“OSC”). Pursuant to its Motion, the American Registry of Radiologic Technologists (“ARRT” or “Plaintiff”) seeks an Order directing Defendant Keith Moultry (“Moultry” or “Defendant”) to appear and show cause why he should not be held in civil and criminal contempt of court for refusing to comply with the Court's August 14, 2017 and March 17, 2021 orders, and for such other relief as this Court deems just and proper. (Ex. 1; ECF No. 40).
Taking into account the Defendant's pro se status, the Court attaches as exhibits any prior docket entries referenced herein.
II. BACKGROUND
On August 14, 2017, the Court ordered that (1) final judgment is entered in favor of Plaintiff and against Defendant; (2) Plaintiff shall recover certain costs and attorneys' fees; (3) Defendant is permanently enjoined from directly or indirectly using, reproducing, copying, or imitating the ARRT® trademarks, service marks, certification marks, or any other mark, word, or name similar to the ARRT® trademark; (4) Defendant will deliver materials in his possession, custody, or control bearing, containing, or using the ARRT® trademark, service marks, or certification marks; (5) Defendant will file a written report made under oath detailing his compliance with the order within thirty days of service of the August 14, 2017 Order; and (6) if Defendant violates the August 14, 2017 Order, Defendant will be liable for all attorneys' fees reasonably incurred in any action to enforce this order or to otherwise remedy such violations. (Ex. 2; ECF 19 at 2-3).
On March 17, 2021, the Court reaffirmed its August 14, 2017 final judgment in favor of the Plaintiff, and held that the August 14, 2017 Order's six requirements remain in place. (Ex. 3; ECF No. 39 at 2).
III. DISCUSSION
Plaintiff seeks an Order directing Defendant to show cause why he should not be held in civil and criminal contempt of Court for refusing to comply with the Court's prior Orders. “District courts have the power to punish disobedience to court orders by civil contempt . . . and criminal contempt.” United States v. Rose, 806 F.2d 931, 933 (9th Cir. 1986) (citations omitted). Civil contempt “is designed to induce compliance with a court order”, while criminal contempt “serves to vindicate the authority of the court[.]” Id. (citing United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980)). Civil contempt is warranted where the opposing party shows “by clear and convincing evidence that the contemnors violated a specific and definite order of the court.” Knupfer v. Lindblae (In re Dryer), 322 F.3d 1178, 1191 (9th Cir. 2003). Criminal contempt “requires willful disobedience of a clear and definite court order.” Rose, 806 F.2d at 933 (citing Powers, 629 F.2d at 627). “The same conduct may result in both civil and criminal contempt charges.” Id. (citing Powers, 629 F.2d at 627).
Plaintiff alleges that Defendant has failed to comply with any of the requirements set forth in the Court's August 14, 2017 and March 17, 2021 Orders. (Ex. 1; ECF No. 40-1 at 1). According to Plaintiff, “Defendant has not contacted counsel for ARRT, delivered ARRT trademarked materials, arranged to pay attorneys' fees, or otherwise taken any reasonable steps to comply with the Court's August 14, 2017 and March 17, 2021 Orders.” (Id. at 2). Most importantly, ARRT alleges that Defendant “continues to represent to Southern California employers” that “he is an . . . ARRT . . . registered and certified radiologic technologist, which he is not.” (Ex. 1; ECF No. 40-1 at 1). On September 7, 2021, ARRT was notified by Quality Temp Staffing that Defendant, using the aliases “Keith Miller” and “Kevin Miller”, applied for employment and stated that he is “ARRT certified” on his resume. (Id. at 3; Kummer Decl. ¶¶ 7-11). ARRT has attached a purportedly true and correct copy of the resume submitted by Defendant to Quality Temp Staffing as Exhibit A to the Declaration of Barbara Kummer.
Based upon a review of the motion, record, and proceedings herein, the Court GRANTS Plaintiff's Motion for an Order to Show Cause; orders Defendant Keith Moultry to respond to Plaintiff's motion and show cause why he should not be held in civil and criminal contempt of court; and sets a briefing schedule as detailed below.
IT IS HEREBY ORDERED:
1. Plaintiff ARRT's Motion for an OSC against Defendant Moultry is GRANTED.
2. Plaintiff ARRT shall (1) serve a copy of this Order and exhibits, along with Plaintiffs motion and supporting exhibits, upon Defendant Moultry, and (2) file a certificate of service upon doing so.
3. Defendant Moultry shall file a response and show cause why he should not be held in contempt of court within 15 business days from the date of service.
4. Defendant Moultry shall also file a notice containing his current address and phone number within 7 business days form the date of service.
5. Plaintiff may file a reply, if any, to Defendant's response within 8 business days from the date Defendant Moultry files his response.
6. The Court will set a hearing date upon the filing of Defendant's response. In the event Defendant fails to respond to this Order as required, the Court will issue additional Orders as provided by law and/or sanctions as the Court deems appropriate to address Defendant Moultry's failure to respond.
Ex. 1
NOTICE OF MOTION AND MOTION FOR ORDER TO SHOW CAUSE
TO THE CLERK, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE Plaintiff The American Registry of Radiologic Technologists ("ARRT"), by and through its undersigned attorneys, will, and hereby does, move the Court for entry of an Order requiring Defendant Keith Moultry to appear and show cause why he should not be held in contempt of court for refusing to take any steps to comply with the Court's August 14, 2017 and March 17, 2021 orders, and providing such other relief as this Court deems just and proper.
This Motion is based on this Notice of Motion and Motion, the contemporaneously filed Memorandum of Point and Authorities, the Declaration of Barbara Kummer in support of same, and all other pleadings and records on file in this action, and such other argument as the Court may consider at the hearing on this Motion.
Dated: October 25, 2021
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF ARRT'S MOTION FOR ORDER TO SHOW CAUSE REGARDING CIVIL AND CRIMINAL CONTEMPT
To date, Defendant Keith Moultry has not complied with a single one of this Court's numerous Orders issued against him. Instead, in direct violation of this Court's Orders, Mr. Moultry continues to represent to Southern California employers he is an American Registry of Radiologic Technologists ("ARRT") registered and certified radiologic technologist, which he is not. Therefore, Defendant should be ordered to show cause why he should not be held in both civil and criminal contempt of court.
BACKGROUND
In 2016, ARRT sued Defendant for his unauthorized use of the ARRT® trademarks. On August 14, 2017, this Court entered default judgment against Defendant. Dkt. No. 19. In its Order, the Court required Defendant to: (1) cease directly or indirectly using, reproducing, copying, or imitating ARRT trademarks; (2) pay ARRT's costs and fees; (3) deliver all materials in his possession using the ARRT certification marks to ARRT; and (4) file a written report detailing how he had complied with the Court's order. Id. Defendant took none of these actions.