United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION FOR CONTEMPT AND TO ENFORCE THE
E. SCHREIER UNITED STATES DISTRICT JUDGE
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
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.
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.
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
Plaintiff's Motion for an Order of Contempt
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).
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.' ”
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.
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 ...