Case 3:21-cv-09744-MAS-TJB Document 34 Filed 02/17/22 Page 1 of 7 PageID: 617

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

et al.,

Plaintiffs,
Civil Action No. 21-9744 (MAS) (TJB)
v.
MEMORANDUM OPINION
CLARENCE ANICHOLAS CLEMONS III
et al.,

Defendants.

SHIPP, District Judge

This matter comes before the Court on

Motion to hold in contempt Defendants

Defendants did

in support of their Motion. (ECF Nos. 28, 30, 31.) Having considered submissions, the

Court decides this matter without oral argument under Local Civil Rule 78.1. For the reasons

below, the Court grants Motion.

I. BACKGROUND

A legendary saxophonist with Bruce Springsteen and the E Street Band known famously

, Clarence A. Clemons passed away in 2011. (Compl. ¶¶ 2-3, ECF

No. 1.) to provide

for his family, including his four sons. (Id. ¶ 11.) The Trust provides that the trustee has sole control
Case 3:21-cv-09744-MAS-TJB Document 34 Filed 02/17/22 Page 2 of 7 PageID: 618

s reaches age 25, set to

occur in 2023. (Id. ¶¶ 12-13.)

without authorization from the Trust. In

o sell a beer called

Id. ¶¶ 20-21.) Seeking to grow the LLC, Nick agreed

to a third party. (Id. ¶¶ 21-22.) He further sought capital from private equity investors

to help fund the beer business. (Id. ¶ 44.) Both times Nick represented himself as having control

, even though the Trust had not granted that authorization.

(Id. ¶¶ 22, 44.) Elsewhere, Charles and Nick have expanded their product line. A December 2020

(Id.

¶ 42.) A January 2021 social media

(Id. ¶ 40.) Still another January 2021

Id. ¶ 36.)

Eventually the Trust sued Defendants

the Lanham Act and various unfair competition torts. (See generally id.) The Trust also moved for

without authorization. (ECF No. 2.) Despite proper service and multiple opportunities to appear,

Defendants never answered the Complaint nor appeared for status conferences set by the Court.

(E.g., ECF Nos. 7, 10.)

Order, ECF No. 25.) The Order mandated that, among other prohibitions,

Defendants stop

using any reproduction, counterfeit, copy, or colorable imitation of

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likeness of the late musician Clarence Anicholas Clemons Jr. to

identify any goods or the rendering of any services not authorized
by Plaintiffs.

(Id. at 2 (defined terms omitted).) As directed by the Order, Plaintiffs served the Order on

Defendants via overnight mail on May 28, 2021. (See Van Benthysen Decl. ¶ 13, ECF No. 27-3

Defendants have taken no actions to comply with the Order since receiving it. They have

and ongoing violations of the Order:

-6);

-7);

A
5, ECF No. 27-8); and

-9).

In addition, recent correspondence filed by Plaintiffs shows further examples of non-compliance

with the Order:

July 2021 Facebook posts

Dec.
2021 Correspondence Ex. 1, ECF No. 31);

id.);

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A September 2021 Facebook post by

id.);

id.);

id.);

October 2021 Facebook posts

id.); and

(id.).

II. LEGAL STANDARD

civil Shillitani v. United States, 384 U.S. 364, 370 (1966) (citing United States v.

United Mine Workers, 330 U.S. 258, 330-32 (1947)). Sanctions for civil contempt

future compliance with a court order, [and] are considered to be coercive and avoidable through

obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an

, 512 U.S. 821, 827 (1994).

When determining sanctions for civil contempt, a district court may impose a wide range of

penalties, including incarceration, fines, or a reimbursement of costs to the complainant. Ne.

Women s Ctr., Inc. v. McMonagle, 939 F.2d 57, 70 (3d Cir. 1991) [D]istrict courts have broad

discretion to fashion an appropriate civil contempt To prove civil contempt, a movant

must demonstrate that: (1) a valid court order existed; (2) the defendant had knowledge of the

order; and (3) the defendant disobeyed the order. See Harris v. City of Philadelphia, 47 F.3d 1311,

1326 (3d Cir. 1995) (citing Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir. 1995)). The movant

must establish these elements by clear and convincing evidence. Id. at 1321.

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III. DISCUSSION

them in contempt. The Court agrees. The Order was a valid order from this Court that prohibited

Defendants from

marks. (Order 2.) Defendants knew about the Order because it was served on them. (Van

Benthysen Decl. ¶ 13.) Despite this knowledge, Plaintiffs have identified at least eleven separate

incidents of social media postings by Defendants that have plainly violated the Order. (See

Further, Defendants have not opposed

Pl much less responded to any filing in this action. Thus, no dispute exists that

a contempt finding.

Plaintiffs request two types of contempt penalties, a $500 per diem fine for each day of

Motion. The Court exercises its discretion to award both penalties. As to the fine, [i]n civil

contempt proceedings, the classic example of a coercive fine is a per diem fine imposed for each

day a contemnor fails to comply with an affirmative court order. Marks & Sokolov, LLC v.

Mireskandari, No. 13-3152, 2015 WL 4557271, at *5 (E.D. Pa. July 29, 2015) (quoting Bagwell,

512 U.S. at 829).

in this matter, the Court imposes a prospective $250 per diem fine for each day Defendants

See NLRB v. KRS Contractors LLC, No. 19-13887, 2021

WL 465301, at *4 (D.N.J. Feb. 9, 2021) (imposing coercive fine where

the [c]

Compliance with the Order includes (but is not limited to) removing all social posts that use

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forward. The Court imposes this fine for up to a 30-day period, ending

compliance with the Order or 30 days from service of this Memorandum Opinion and

accompanying order on Defendants.1

the Court finds an award of fees appropriate. See In re Linerboard

Antitrust Litig. 399

reasonable costs of prosecuting the contempt, including attorneys (citation omitted)); Robin

Woods, Inc. v. Woods

ion omitted)).

and must not exceed the actual damages caused by that conduct. See Cardionet, LLC v. Mednet

Healthcare Techs., Inc., 146 F. Supp. 3d 671, 698 (E.D. Pa. 2015) (first quoting Quinter v.

Volkswagen of Am., 676 F.2d 969, 975 (3d Cir. 1982); and then quoting Inst. for Motivational

Living, Inc. v. Doulos Inst. for Strategic Consulting, Inc. 04)).

Further, district courts calculate the propriety of fee awards using the lodestar method, which is

Pennsylvania v. Del. Vall. Citize , 478 U.S. 546,

564 (1986). The party seeking fees establishes reasonable fees by submitting evidence supporting

the number of hours billed and the hourly rate claimed. Rode v. Dellarciprete, 892 F.2d 1177, 1183

(3d Cir. 1990).

Here, Plaintiffs seek $7,019.40 in fees and costs. Plaintiffs submitted two declarations in

support of their fee requests. The first avers that Plaintiffs incurred $591.90 in costs associated

1
-day period, Plaintiffs may
move again for contempt via letter motion.

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with the Motion and that Brett Van Benthysen spent 11.9 hours working on the Motion at a rate of

$475 per hour. (Van Benthysen Decl. ¶¶ 19-20, 22-23, 25, ECF No. 27-3

Records, ECF No. 27-11.) Mr. Van Benthysen has practiced for more than a decade in commercial

litigation in state and federal court. (Van Benthysen Decl. ¶ 17.) The second declaration avers that

Robert W. Clarida spent one hour working on the Motion at a rate of $775 per hour. (Clarida Decl.

¶¶ 6-7, ECF No. 27- Mr. Clarida has 23 years of experience in copyright and

trademark litigation. (Clarida Decl. ¶¶ 2-4.) The Court finds that this evidence supports reasonable

billing hours and reasonable rates. Neither the hours billed, nor the rates claimed are duplicative

or

litigation. (See -12 (listing cases where similar rates found reasonable); Wachtel v.

Health Net, Inc., Nos. 01-4183, 03-1801, 2007 WL 1791553, at *3 (D.N.J. June 19, 2007)

(approving hourly billing rates of up to $650 for partner and $425 for associates).) Further, all the

fees and costs relate to the Motion. See Inst. for Motivational Living, Inc.

(refusing to award fees unrelated to contempt motion). In addition, Defendants have failed to argue

See Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d

The district court cannot decrease a fee award based on factors not raised at all by the

adverse part The Court thus awards Plaintiffs their reasonable fees and costs of $7,019.40.

IV. CONCLUSION

The Court grants Motion. It issues a coercive fee of $250 per day for up to a

30-day period and awards Plaintiffs $7,019.40 in fees and costs incurred with bringing the Motion.

The Court will issue an order consistent with this Memorandum Opinion.

____________________________
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE
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