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Enovative Techs., LLC v. Leor

United States District Court, D. Maryland

June 8, 2015

ENOVATIVE TECHS., LLC, Plaintiff,
v.
GABRIEL REUVEN LEOR, Defendant.

MEMORANDUM

JAMES K. BREDAR, District Judge.

On May 13, 2015, Plaintiff Enovative Technologies, LLC, filed a second motion for sanctions, contempt, attorneys' fees, and costs. (ECF No. 178.) On May 14, the Court ordered Defendant Gabriel Leor to respond on or before May 29, 2015, and scheduled a show cause hearing for June 2, 2015 at 10:00 a.m. (ECF No. 179.) Defendant failed to file a response. The hearing was subsequently rescheduled by court order (ECF No. 181), and was held on June 4, 2015 to address Plaintiff's pending motion (ECF No. 178) and the Court's order to show cause (ECF No. 179). For the reasons stated in open court and explained further below, Plaintiff's motion for sanctions, contempt, attorneys' fees, and costs will be GRANTED IN PART AND DENIED IN PART.

I. Background

On January 5, the Court held a hearing to assess Plaintiff's motion for a preliminary injunction. (ECF No. 3.) At the end of the hearing, after considering all of the evidence presented by both parties, the Court projected that it would grant Plaintiff's motion and enter a preliminary injunction order. (Prelim. Inj. Tr. at 109, Jan. 5, 2015, ECF No. 219.) The Court then warned Defendant that "to knowingly not comply with [a preliminary injunction order] could amount to a contempt of the Court. And contempts are punishable by various sanctions; including in some cases even imprisonment, the loss of your liberty. Do you understand that?" (Id. at 112.) Defendant responded: "I understand that, Your Honor." (Id. )

On January 6, 2015, the Court issued a preliminary injunction (ECF No. 19) requiring that Defendant immediately take the following affirmative actions: (1) transfer control of the Magic Massage website ( id. ¶ 3); (2) remove from the Internet all offensive and/or defamatory postings relating to Plaintiff, including, but not limited to, content on http://www.smartrelief.com and http://www.magicmassageultra.com ( id. ¶¶ 2, 6); and (3) return any and all of Plaintiff's confidential information to Plaintiff ( id. ¶ 12). Defendant was also enjoined from, inter alia, disparaging and defaming Plaintiff to any further extent ( id. ¶ 1), and from harassing or threatening Plaintiff and people associated with Plaintiff (e.g., customers, investors, etc.) ( id. ¶ 9).

On February 12, 2015, the Court held its first contempt hearing for alleged violations of the preliminary injunction. Defendant was allowed to, and did, appear telephonically in this first contempt hearing. On February 19, the Court found that Defendant had violated the Court's preliminary injunction order as follows: (1) Defendant failed to transfer exclusive control of the Magic Massage website to Plaintiff; (2) Defendant failed to remove all offensive and/or defamatory postings related to Plaintiff on the www.smart-relief.com and www.magicmassageultra.com websites, as well as offensive postings on the "Staci Markets" Facebook page; and (3) Defendant failed to return any and all confidential information to Plaintiff. (ECF No. 47.) For these reasons, the Court held Defendant in civil contempt and ordered that Defendant could only purge such contempt by complying with the Court's preliminary injunction order. (Id. ) To coerce obedience, the Court ordered that Defendant would incur a daily fine of $1000, payable to the United States, until Defendant purged himself of such contempt. (Id. )

On May 13, 2015, Plaintiff filed a second motion for sanctions, contempt, attorneys' fees and costs, alleging that Defendant continues to willfully violate the Court's preliminary injunction order. (ECF No. 178.) On May 14, the Court issued an order to show cause, directing Defendant to respond to Plaintiff's motion on or before May 29, and further ordering that "all counsel of record and the Defendant SHALL PERSONALLY APPEAR" at a hearing set for June 2, 2015. (ECF No. 179.) The next day, on May 15, the Court rescheduled this show cause hearing to be held on June 4, 2015. (ECF No. 181.) Defendant never filed a response to Plaintiff's motion.

II. Findings of Fact

For the reasons stated in open court, as well as those discussed here, the Court makes the following findings of fact:

The Court held its show cause hearing on June 4, 2015. Defendant failed to appear. As a threshold matter, the Court finds that Defendant had adequate notice of these proceedings. The Clerk mailed a copy of the show cause order that scheduled the hearing (ECF No. 179), and the order rescheduling the hearing (ECF No. 181), to Defendant's mailing address in Thailand, as provided to the Court by Defendant. (ECF No. 34 at 4.) Further, an employee of the Court testified that she e-mailed copies of these orders directly to Defendant's personal e-mail address, as a courtesy, to ensure that Defendant would receive notice of the proceedings. The Court has previously communicated effectively with Defendant via Defendant's personal e-mail address, at his request. In fact, Defendant received Plaintiff's service of the summons at this very same email address. ( See ECF Nos. 9, 10, 11, 12.) Defendant failed to provide the Court with good cause for his failure to appear. Thus, Defendant violated the Court's order directing that he personally appear for the show cause hearing.

The Court proceeded to conduct the show cause hearing in Defendant's absence upon a finding that he had waived his right to be there and participate, and now the Court finds that Defendant continues to violate the Court's preliminary injunction by failing to: (1) transfer control of the Magic Massage website; (2) remove offensive content from the Internet; and (3) return confidential information. As of the morning of June 4, 2015, the day of the show cause hearing, Defendant had failed to comply with the Court's order for 104 days, accruing a total of $104, 000 payable to the United States. Defendant has exhibited an unwillingness to comply with the Court's order, despite the costly fine associated with such noncompliance. (The Court now finds that continued fines would prove futile, and therefore will suspend the accrual of new daily fines. The amount accrued to date, $104, 000, remains owing to the United States.)

In addition to Defendant's continued contempt, the Court now finds that Defendant is responsible for a litany of harassing communications originating from Defendant's many pseudonymous e-mail and social media accounts, and aliases. Based on testimony presented at the show cause hearing, the Court finds that Defendant is either directly in control of these accounts and aliases, or that they are being used at Defendant's direction. These accounts include, but are not limited to: the "Magic Massage Thailand" Facebook profile, "gabriel@smartmassageshop.com, " "guylevimassager@gmail.com, " "sellmybusiness1987@gmail.com, " all e-mails associated with the "enovativetechnologiesllc.com" domain, the username "peter.anderson1123, " the alias "John Collins, " and the alias "Guy Levi."

Defendant has used these accounts and aliases to ridicule, insult, and commercially injure Plaintiff, and to harass and intimidate Plaintiff and people associated with Plaintiff. ( See generally ECF No. 178-4 to 178-26.) In addition to Defendant's penchant for anonymous harassment, Defendant now also harasses under his own name. Defendant's motion to disqualify Plaintiff's counsel devolves into obscene characterizations of Plaintiff's counsel. (ECF No. 165.) Defendant contends that Mr. Fabian Rosado[1] once referred to Plaintiff's counsel as "the best bitch money could buy, "[2] and describes Plaintiff's counsel's litigation tactics as "bitchiness." (Id. ¶¶ 11-12.) Defendant also argues, in support of his motion to disqualify counsel, that "[t]he legal issue now is whether Fuck Her in the Pussy' is a reference to [Plaintiff's counsel] herself, and not to [Plaintiff]." (Id. ¶ 12.) Defendant's odious "allegation, " unfortunately, requires additional context, discussed infra. Beyond those outrageous comments appearing in Defendant's court filing, Plaintiff's counsel testified that Defendant recently ...


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