1The motion is docketed as a “Motion to Enforce Judgment,” but the motion is

entitled “Motion to Enforce Settlement Agreement.” Because the Consent Judgment is

“[i]n accordance to” the Settlement Agreement and incorporates many of the same

terms, the court will construe this as a motion to enforce both the Agreement and the

Judgment.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

TDC INTERNATIONAL CORP.,

Plaintiff,

v. Case No. 08-CV-14792

JAE L. BURNHAM,

Defendant.

 /

ORDER GRANTING PLAINTIFF’S “MOTION TO ENFORCE JUDGMENT,”

ORDERING DEFENDANT TO SHOW CAUSE WHY HE SHOULD NOT BE HELD IN

CONTEMPT, AND SETTING HEARING FOR FEBRUARY 24, 2010 

Pending before the court is Plaintiff TDC International Corp.’s “Motion to Enforce

Judgment and for Order to Show Cause,”1

 filed on November 18, 2009. Defendant Jae

L. Burnham was given until December 28, 2009, to file a response, but he has not filed

a response to date. For the reasons stated below, the court will grant Plaintiff’s motion.

I. BACKGROUND

Plaintiff has conducted its moving and storage business under the name and

service mark “EZ Moving/Moving and Storage” since 1994. (Am. Compl. ¶ 10.) It

operates a website at “www.ezmovingandstorage.com” and has advertised extensively

in newspapers and telephone directories. (Id. ¶ 11.) The present dispute arose based

on Defendant’s use of the mark “Quick and Easy Moving” in connection with his moving

services. (Pl.’s Mot. Ex. A.)

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Plaintiff filed a complaint on November 14, 2008, alleging (1) violation of 15

U.S.C. § 1125(a) and (2) common law unfair competition. (Compl.) A clerk’s entry of

default was entered on December 18, 2008. After the court set aside the clerk’s entry of

default, Plaintiff amended the complaint, adding two additional counts: (3) libel under

Michigan common law, and (4) tortious interference with business expectancy. (Am.

Compl.) After what Plaintiff describes as “much wrangling,” the parties settled the

lawsuit and entered into a “Settlement Agreement and Release” (the “Agreement”) in

May 2009. (Pl.’s Mot. Br. at 2, Ex. A.) 

In the Agreement, Defendant was required to make a charitable donation in the

amount of $1500.00 to North Star Junior Sailing, Inc. (Id. ¶ 1.) He was restrained from

using any mark that includes “Easy Moving,” “EZ Moving,” or a colorable imitation in

connection with his moving business. (Id. ¶ 2.) Defendant was also restrained from

using the domain “www.quickandeasymove.com,” but he was allowed to use this

domain to forward web traffic to a new address for one month. (Id. ¶¶ 3, 4.) Plaintiff

agreed not to oppose Defendant’s use of the mark “Jae’s Quick and Simple Moving” or

the domain “www.professionalmovinginfo.com.” (Id. ¶ 5.)

On June 22, 2009, in accordance with the Agreement, the court issued a

Consent Judgment and Permanent Injunction. The Judgment enjoined Defendant from,

among other things, “using any mark that includes the terms and/or words ‘Easy

Moving’ or ‘EZ Moving’ or any colorable imitation thereof in connection with offering,

sales or advertising of moving services.” (6/22/09 Judgment ¶ 6(a).) Defendant was

not restrained from “using the words ‘easy’ or ‘moving’ in a descriptive sense,” but he

could not use the “word ‘easy,’ ‘EZ’ or any colorable imitation thereof within one word of

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the word ‘moving’ in connection with his business.” (Id.) The Consent Judgment also

required Defendant to use reasonable commercial efforts to remove certain

advertisements, links, and web pages. (Id.) Defendant was permitted to identify himself

as being related to “Quick and Easy Moving” for one month after execution of the

Agreement. (Id.)

On November 18, 2009, Plaintiff filed the present motion seeking to enforce the

Agreement and requesting an order to show cause to determine Defendant’s

compliance with the Agreement. Plaintiff attached as exhibits a number of examples of

Defendant’s continued use of “Quick and Easy Moving” and “EZMoving” in violation of

the Agreement and the Consent Judgment. (Pl.’s Mot. Exs. A-D.) Plaintiff further

contends that Defendant never paid the $1500.00 to the charity. (Id. at 3.)

At the time of the motion, Attorneys Mark A. Cantor and Brian S. Tobin remained

as counsel of record for Defendant. On December 1, 2009, they filed a motion to

withdraw, asserting that they terminated their representation of Defendant on July 8,

2009, following the execution of the Agreement and entry of the Consent Judgment. 

(Mot. to Withdraw ¶ 4.) A hearing was held on the motion to withdraw on December 10,

2009. Defendant was ordered to attend; however, he notified his attorneys the morning

of the hearing that he would be unable to make it because of the road conditions. 

(12/11/09 Order Granting Motion to Withdraw at 1 n.1.) The court granted counsel’s

motion to withdraw, gave Defendant until December 28, 2009 to file a response to the

motion to enforce the judgment, and deemed Defendant proceeding pro se until he

found a substitute attorney. (Id.) 

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To ensure that Defendant was notified of the court’s orders regarding the motion

to withdraw and to ensure that the court could notify Defendant of future proceedings

and court orders, the court imposed certain obligations on Attorneys Cantor and Tobin. 

(12/11/09 Order Imposing Obligations.) Specifically, they were required to notify the

court’s case manager to provide her with a telephone number and mailing address for

Defendant and to provide Defendant with a copy of the court’s orders granting the

motion to withdraw and imposing obligations on the attorneys. (Id.) 

On December 15, 2009, Attorneys Cantor and Tobin filed a notice of compliance

with the obligations imposed by the court. Tobin contacted the court’s case manager on

December 14, 2009, and provided her with Defendant’s telephone number and mailing

address. (12/15/09 Notice of Compliance at 1.) In addition, the attorneys sent a letter

and a copy of the court’s orders to Defendant via certified mail. (Id.) The attorneys also

emailed Defendant a letter and a copy of the court’s orders at the email address from

which he notified his attorneys the morning of the hearing that he was not going to

attend. (Id.)

II. DISCUSSION

A district court “has the inherent authority to enforce agreements in settlement of

litigation before it.” Knapick v. Hanley, 8 F. App’x 306, 307 (6th Cir. 2001). Plaintiff

alleges Defendant has violated the Agreement by “surreptitiously” continuing to engage

in “his previously allegedly infringing activities.” (Pl.’s Mot. Br. at 2.) In support, Plaintiff

has provided substantial evidence in the form of exhibits which demonstrate that

Defendant has failed to comply with the Agreement and Consent Judgment. (Pl.’s Mot.

Exs. B-D.) 

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Plaintiff has printed Defendant’s current and active web postings. (Pl.’s Mot. Ex.

B.) In a listing on “www.yelp.com,” Defendant’s business is called “Quick and Easy

Moving.” (Id.) In a section entitled “Meet the Business Owner: Jae B.,” his email is

listed as “quickandeasymoving@yahoo.com,” which is the same email address that

Defendant used to notify his attorneys the morning of the hearing on the motion to

withdraw that he was unable to attend. (Id.) A similar listing for “Quick and Easy

Moving” can be found on “www.merchantcircle.com,” “www.superpages.com,” and

“backpage.com.” (Id.) 

Also, Plaintiff has provided a posting on “www.squidoo.com,” discussing “moving

scams on Craigslist,” which Plaintiff describes as Defendant’s “modus operandi.” (Pl.’s

Mot. Br. at 3 n.1, Ex. B.) This Squidoo posting contains logos with the words “Quick

and Easy Moving” and “Quick and Easy Moving LLC,” and at the end states, “My name

is Jae Burnham. I own and operate Quick and Easy Moving.” (Pl.’s Exs. B, D.) Plaintiff

accessed this webpage on November 6, 2009. (Pl.’s Ex. D.)

Most troubling, however, is Defendant’s use of Plaintiff’s exact trademark on

Twitter, where he appears to be operating under the name “EZMovingStorage.” (Pl.’s

Ex. B.) The title to the webpage states, “Hey there! EZMovingStorage is using Twitter.” 

(Id.) Although the page lists “RIc Wilhelm” as the originator’s name, it is reasonably

apparent that the postings are from Defendant. (Id.) For instance, Defendant’s website,

www.professional-moving.com, is listed on the page. (Id.) Also, many of the posts are

about craigslist moving scams, and many of the posts are about Defendant’s moving

business, U-Save Moving. (Id.) For example, two posts state, “U-Save Moving Did a

Wonderful Job: They were so fast and worked very hard and with great care.” (Id.) 

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These posts were made as recently as November 17, 2009, the day before Plaintiff filed

the present motion. (Id.)

Based on this evidence, Plaintiff has made a showing that Defendant has failed

to comply with the Agreement and Consent Judgment. The Consent Judgment and

Agreement precluded Defendant from using the words “Easy Moving” or “EZ Moving” in

connection with his moving services, and Defendant appears to have continued to use

both words. Also, based on the Agreement, Defendant was obligated to make a

charitable donation in the amount of $1500.00 to North Star Junior Sailing, Inc., and he

has failed to make this donation. Accordingly, the court will grant Plaintiff’s motion.

“When a court seeks to enforce its order or supervise its judgment, one weapon

in its arsenal is contempt of court.” Elec. Workers Pension Trust Fund of Local Union

#58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir. 2003). The court has

inherent authority, as well as power pursuant to 18 U.S.C. § 401, to “punish by fine or

imprisonment” a party’s “[d]isobedience or resistance to its lawful writ, process, order,

rule, decree, or command.” 18 U.S.C. § 401. As Plaintiff has shown that Defendant

has disregarded the court’s judgment, the court will order Defendant to show cause why

he should not be held in contempt for failure to abide by a lawful judgment of this court. 

A hearing on this matter will be held on February 24, 2010 at 2:00 p.m.

III. CONCLUSION 

For the reasons above, IT IS ORDERED that Plaintiff’s “Motion to Enforce

Judgment and for Order to Show Cause” [Dkt. # 31] is GRANTED.

IT IS FURTHER ORDERED that Defendant Jae L. Burnham is ORDERED TO

SHOW CAUSE, in person at the hearing scheduled below, why he should not be held in

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contempt of court and sanctioned for failing to abide by the Agreement and Consent

Judgment. 

IT IS FURTHER ORDERED that a contempt hearing will be held on February

24, 2010 at 2:00 p.m. Defendant Jae L. Burnham is required to personally appear for

this hearing.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: January 21, 2010

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, January 21, 2010, by electronic and/or ordinary mail.

 S/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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