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Heritage Home for Funerals, Inc. v. Heritage Cremation Provider, LLC

United States District Court, D. South Dakota, Southern Division

May 9, 2019

HERITAGE HOME FOR FUNERALS, INC., Plaintiff,
v.
HERITAGE CREMATION PROVIDER, LLC, Defendant.

          ORDER GRANTING MOTION FOR CONTEMPT AND TO ENFORCE THE DEFAULT JUDGMENT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiff, Heritage Home for Funerals, Inc., moves for an order of contempt and to enforce the default judgment. Docket 20. Defendant, Heritage Cremation Provider, LLC, opposes the motion. Docket 36. For the reasons stated below, the court grants plaintiff's motion and modifies the default judgment.

         BACKGROUND

         Plaintiff, Heritage Home for Funerals, Inc., filed its complaint on June 30, 2017, against defendant, Heritage Cremation Provider, LLC. Docket 1. The complaint alleged trademark infringement, trademark dilution, false designation of origin, and unfair competition. Id. Because defendant never filed an answer or litigated the matter, plaintiff filed a motion for entry of default on September 7, 2017. Docket 12. On September 11, 2017, the clerk entered default against defendant. Docket 14. On September 15, 2017, plaintiff moved for default judgment against defendant. Docket 15. Defendant failed to respond. On February 20, 2018, the court entered a default judgment against defendant. Docket 17. On October 25, 2018, plaintiff moved for an order of contempt and to enforce the default judgment. Docket 20.

         On December 28, 2018, the court ordered defendant file a response to the order to show cause or be held in contempt. Docket 24. The court also scheduled a hearing on the matter. Id. At the hearing on March 3, 2019, Anthony Damiano appeared pro se on behalf of defendant; plaintiff was represented by counsel. Docket 29. The court instructed Anthony that he could not appear pro se on behalf of defendant because defendant is a limited liability corporation. Id. Anthony requested the hearing be continued. Id. The court ordered Anthony to hire an attorney and to have the attorney file a notice of appearance within one week. Id. On March 6, 2019, an attorney noted his appearance on the record on behalf of defendant. Docket 30. Defense counsel moved to continue several deadlines (Dockets 31, 33), and the court set the show cause hearing for April 11, 2019. Docket 35.

         On March 18, 2019, defendant filed a motion to set aside the default judgment. Docket 39. Plaintiff opposed the motion. Docket 46. At the hearing on April 11, 2019, the court heard arguments from the parties about defendant's motion to set aside the default judgment. Docket 48. After taking it under consideration, the court denied defendant's motion. Docket 51. Plaintiff's motion for contempt and to enforce the default judgment is the sole pending motion before this court.

         DISCUSSION

         I. Plaintiff's Motion for an Order of Contempt

         A. Legal Standard

         It is a generally established principle that courts have an inherent power to punish parties for contempt. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citation omitted). “One of the overarching goals of a court's contempt power is to ensure that litigants do not anoint themselves with the power to adjudge the validity of orders to which they are subject.” Chicago Truck Drivers v. Bhd. Labor Leasing, 207 F.3d 500, 504 (8th Cir. 2000) (citation omitted). The party that seeks the order of civil contempt “bears the initial burden of proving, by clear and convincing evidence, that the alleged contemnors violated a court order.” Id. at 505 (citation omitted). If the party can do so, the burden shifts to the alleged violator to show its inability to comply with the court's directive. Id. (citation omitted).

         B. Plaintiff's Burden

         In the default judgment, the court ordered defendant to comply with three directives. Docket 17. First, the court ordered defendant to stop using and “immediately remove the name or mark ‘Heritage' and any other mark, word, or name similar to ‘Heritage' from its marketing, selling, and provision of funeral, removal, embalming, memorial, burial, cremation, and related services in South Dakota.” Id. at 2. Second, defendant was also ordered to stop “[u]sing any false designation or origin, false representation, or any false or misleading description of fact, that can, or is likely to, lead the consuming public . . . to believe that any products or services produced, offered, promoted, marketed, advertised, provided, or sold by defendant is in any manner associated or connected with Heritage. . . [.]” Id. Third, the court ordered defendant to cease all use of http://www.hertiagecremationprovider.com and “any similar domain names owned and/or controlled by defendant that contain the word ‘Heritage.' ” Id.

         Plaintiff alleges that defendant's actions or inactions violated the court's order in several ways. Docket 21 at 4-6. First, plaintiff contends that defendant has continued to use the protected “Heritage” mark in its marketing. Id. at 4. Second, plaintiff contends that defendant continues to offer its services in a manner that leads customers to believe that defendant is affiliated with plaintiff. Id. at 4-5. Third, plaintiff contends that defendant continues to use the infringing domain names. Id. at 6.

         In its original business plan, defendant served as a conduit for funeral services. Docket 36 at 8. Customers would contact defendant through its website, and defendant would put the customers in contact with local funeral service providers. Id. Defendant argues that it did not and does not offer any funeral, cremation, or related services in South Dakota. Id.; Docket 42 ¶¶ 5-8. Furthermore, Anthony alleges that defendant has ceased offering conduit services in South Dakota and that defendant's website does not contain any reference to South Dakota. Docket 36 at 8; Docket 42 ¶ 8. In regard to the use of the “Heritage” mark, defendant alleges that it is not violating ...


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