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Northern Central Distributing, Inc. v. Bogenschutz

United States District Court, E.D. California

July 9, 2019

NORTHERN CENITRAL DISTRIBUTING, INC., a California Corporation, dba YOSEMITE HOMEB DECOP; Plaintiff,
v.
ROCKIE BOGENSCHUTZ, an individual; ROOKIE'S CONTAINERS, LLC, a California limited liability company, dba Y-DEGOR and YOSEMITE DEGOR and DOES 1 through 50, inclusive. Defendant.

          DOWLING AARON INCORPORATED Marcus N. DiBuduo Jared C. Marshall Caroline M. Lutz Attorneys for Plaintiff NORTHERN CENTRAL DISTRIBUTING, INC.

          MOTSCHIEDLER, MICHAELIDES, WISHON, BREWER & RYAN, LLP Russell K. Ryan Attorneys for Defendants ROCKIE BOGENSCHUTZ, ROCKIE'S CONTAINERS, LLC, dba Y-DECOR and YOSEMITE DÉCOR

          CONSENT DECREE

         By stipulation and order dated January 8, 2018, this Court entered a preliminary injunction against Defendants ROCKIE BOGENSCHUTZ, an individual, and ROCKIE'S CONTAINERS, LLC, a California limited liability company, dba Y-DECOR and YOSEMITE DECOR ("Defendants"). The January 8, 2018, preliminary injunction prohibited Defendants for undertaking certain acts likely to confuse, mislead, or deceive consumers, including continuing to use certain stock keeping units, model numbers, photos, or product identifiers that are similar or identical to those used by Plaintiff NORTHERN CENTRAL DISTRIBUTING, INC., a California Corporation, dba YOSEMITE HOME DECOR ("Plaintiff).

         On August 21, 2018, after full briefing and further supplemental briefing, this Court issued an order finding Defendants in contempt for violating the January 8, 2018, preliminary injunction and sanctioning Defendants $33, 500.00 plus Plaintiffs reasonable attorney's fees and costs. On December 12, 2018, this Court ordered Defendants to pay to Plaintiff $ 12, 866.24 in fees and $225.18 in costs.

         On November 6, 2018, Plaintiff filed a motion for a second contempt order and argued that Defendants were still refusing to fully comply with the Court's January 8, 2018, preliminary injunction and had not rectified all of the contumacious acts identified in the Court's August 21, 2018, contempt order. Defendants filed an opposition to the motion on November 26, 2018. Plaintiff filed its reply on December 3, 2018. The motion was denied subject to additional briefing.

         Plaintiff and Defendants now desire to resolve this entire action by stipulation and agreement and have indicated, through their counsel of record, their desire to have this Court enter the final judgment set forth below.

         IT IS THEREFORE STIPULATED AND AGREED, by and between the parties, that this Court may and does ORDER, ADJUDGE, AND DECREE:

         I. JURISDICTION

         This Court has original jurisdiction over Plaintiffs claims under the United States Copyright Act, 17 U.S.C. §§101, et seq., and the Lanham Act, 15 U.S.C. §§ 1051 et seq pursuant to 28 U.S.C. §§ 1121, 1331, and 1338(a), This Court has original jurisdiction over Plaintiffs unfair competition claim because it is substantial and related to Plaintiffs copyright and trademark claims pursuant to 28 U.S.C. §§ 1138(b). This Court has supplemental jurisdiction over Plaintiffs claims arising under state law pursuant to 28 U.S.C. § 1367(a) because they are so related to Plaintiffs copyright infringement and trademark claims that they form part of the same case or controversy under Article III of the United States Constitution.

         II. DEFINITIONS

         A. Hereinafter "Defendants" shall refer collectively to ROCKIE BOGENSCHUTZ, an individual, and ROCKIE'S CONTAINERS, LLC, a California limited liability company, dba Y-DECOR and YOSEMITE DECOR, and their (i) successors, assigns, and licensees (ii) controlled subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and (iii) directors, officers, managers, agents, and employees.

         B. Hereinafter "Plaintiff' shall refer collectively to NORTHERN CENTRAL DISTRIBUTING, INC., a California Corporation, dba YOSEMITE HOME DECOR, and its (i) successors, assigns, and licensees (ii) controlled subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and (iii) directors, officers, managers, agents, and employees.

         C. Hereinafter "Person" shall mean any natural person, corporation, company, partnership, joint venture, firm, association, proprietorship, agency, board, authority, commission, office, or other business or legal entity, whether private or governmental.

         III. APPLICABILITY

         A. Section IV, "Monetary Relief," shall apply jointly and severally to ROCKIE BOGENSCHUTZ, an individual, and ROCKIE'S CONTAINERS, LLC, a California limited liability company, dba Y-DECOR and YOSEMITE DECOR.

         B. Section V, "Permanent Injunction," and all other sections of this Consent Decree shall apply to Defendants, as defined in Section 11(a), and all other persons in active concert or participation with Defendant who shall have received actual notice of this Consent Decree by personal service or otherwise.

         IV. MO ...


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