Contempt for not following an injunction

[denerio]

What is the name of your state (only U.S. law)? Florida

I lost civil case in which the court entered a permanent injunction asking me to take all actions to complete certain tasks listed in the injunction. However, the injunction has no deadline to take all actions or to complete those tasks. Plaintiff is threatening me of filing contempt motion for not doing anything.

(A). If do not take any actions (and do not complete any task) then will I be held in contempt? I saw a case law “A judge cannot base contempt upon noncompliance with something an order does not say.” DeMello v. Buckman, 914 So. 2d 1090 (Fla. Dist. Ct. App. 4th Dist. 2005).

(B). “take all actions” is unclear and ambiguous and am planning to invoke the case law below. What are my chances of succeeding with my argument?
“Prior to assessing contempt sanctions for a violation of a court order, the trial court must first have issued a clear and unambiguous order or otherwise clearly established for the record the standards of conduct required by the court.” Carnival Cruise v. Beverly, 744 So.2d 489 (Fla. Dist. Ct. App. 1st Dist. 1999).

I request your feedback on both these questions.

 

[quincy]

What is the name of your state (only U.S. law)? Florida

I lost civil case in which the court entered a permanent injunction asking me to take all actions to complete certain tasks listed in the injunction. However, the injunction has no deadline to take all actions or to complete those tasks. Plaintiff is threatening me of filing contempt motion for not doing anything.

(A). If do not take any actions (and do not complete any task) then will I be held in contempt? I saw a case law “A judge cannot base contempt upon noncompliance with something an order does not say.” DeMello v. Buckman, 914 So. 2d 1090 (Fla. Dist. Ct. App. 4th Dist. 2005).

(B). “take all actions” is unclear and ambiguous and am planning to invoke the case law below. What are my chances of succeeding with my argument?
“Prior to assessing contempt sanctions for a violation of a court order, the trial court must first have issued a clear and unambiguous order or otherwise clearly established for the record the standards of conduct required by the court.” Carnival Cruise v. Beverly, 744 So.2d 489 (Fla. Dist. Ct. App. 1st Dist. 1999).

I request your feedback on both these questions.

What is the injunction for?

 

[Zigner]

...and when was the injunction issued?

 

[quincy]

Here is a link to the Florida Rules of Civil Procedure, Rule 1.610, Injunctions:
http://phonl.com/fl_law/rules/frcp/frcp1610.htm

 

[denerio]

Thanks for all the feedback including link to Florida Statutes. The injunction is for making online comments about our condo association president. It is entered last month.

Still I am unclear if I am in contempt if I did not take any action, claiming that there is no deadline?

By the way, I also saw Fl rules of civil pro. 1.570: If judgment is for the performance of a specific act or contract: (1) the judgment shall specify the time within which the act shall be performed.
Is this injunction unenforceable as well, because it does not specify the time within which all actions should be taken thereby violating Rule 1.570?

 

[quincy]

Thanks for all the feedback including link to Florida Statutes. The injunction is for making online comments about our condo association president. It is entered last month.

Still I am unclear if I am in contempt if I did not take any action, claiming that there is no deadline?

By the way, I also saw Fl rules of civil pro. 1.570: If judgment is for the performance of a specific act or contract: (1) the judgment shall specify the time within which the act shall be performed.
Is this injunction unenforceable as well, because it does not specify the time within which all actions should be taken thereby violating Rule 1.570?

The injunction should be specific.

That said, if the comments you made about the condo association president are defamatory and you do not remove them immediately, you increase the damages that can be awarded against you in a defamation suit. Or was the injunctive relief granted in a defamation lawsuit loss?

Are you refusing to remove the comments from their place online because the injunction was not time-specific? If so, why?

 

[denerio]

Thanks for the feedback. The injunctive relief is granted on top of awarding damages to Plaintiff. The court gave two final orders (or two final judgments): one is for the permanent injunction (in which the language I posted in this forum is used) and another one is for award of money damages.

Yes, I am refusing to remove the comments from online because the injunction was not time-specific and it needs a HUGE amount of work as the comments were posted (by various people) at many different places and it is too much for me to find out all these and make arrangements to remove (if at all, I can): the plaintiff was successful in convincing the court that I posted all those comments although I posted only 2% of them. The court trusted his arguments and I lost the case.

Kindly let me know what will happen if I do not remove any comments because the injunction is not time-specific. It was plaintiff’s mistake to request such a non-time-specific injunction.

Does Fl rules of civil pro. 1.570 applicable to injunctions as well and if so, what is its impact on the current injunction?

How to interpret "take all actions"?

 

[Zigner]

Courts don't like it when you play games with them. Stop playing childish games. You are wrong, the court said so.

 

[quincy]

Thanks for the feedback. The injunctive relief is granted on top of awarding damages to Plaintiff. The court gave two final orders (or two final judgments): one is for the permanent injunction (in which the language I posted in this forum is used) and another one is for award of money damages.

Yes, I am refusing to remove the comments from online because the injunction was not time-specific and it needs a HUGE amount of work as the comments were posted (by various people) at many different places and it is too much for me to find out all these and make arrangements to remove (if at all, I can): the plaintiff was successful in convincing the court that I posted all those comments although I posted only 2% of them. The court trusted his arguments and I lost the case.

Kindly let me know what will happen if I do not remove any comments because the injunction is not time-specific. It was plaintiffÂ’s mistake to request such a non-time-specific injunction.

Does Fl rules of civil pro. 1.570 applicable to injunctions as well and if so, what is its impact on the current injunction?

How to interpret "take all actions"?

Injunctions are enforced through contempt actions.

If you want to ignore the implied intent of the injunction, you risk a contempt hearing. At the hearing, you can argue that the injunction was not specific in its terms. You can argue that "all actions" was not defined and that the injunction had no time given for compliance (although injunctions once ordered are effective immediately).

The judge is not apt to be pleased with feigned ignorance.

The hearing should at least result in "all actions" being clearly defined and the time for performance of these actions made clear.

Whether any action will be taken against you for failing to comply with the injunction as written is a question mark. You could find yourself assessed the other party's attorney fees and costs, or fined. Or the judge could accept your arguments as valid and the injunction will be amended and that will be that.

 

[denerio]

Thanks for the very valuable feedbacks.


“The hearing should at least result in "all actions" being clearly defined and the time for performance of these actions made clear.” --> the time-frame for rehearing and appeal are already over and the injunction is final. It seems, the court cannot make any changes to the injunction now because of the following case law. “Once a final judgment has been rendered and the time for filing a petition for rehearing or motion for new trial has passed the court loses all jurisdiction over the cause other than to see that proper entry of the judgment or decree is made and that the rights determined and fixed by it are properly enforced.” Dipaolo V. ROLLINS LEASING CORP. 700 So.2d 31 (Fl. 5th DCA, 1997). Therefore, I think, there is no room for amending the injunction now (I will certainly oppose if the court asks me if there is an agreement for amendment).

“the judge is not apt to be pleased with feigned ignorance.” --> To avoid any possible contempt problem to myself, I wish to take actions at my disposal and then argue, if necessary when the other party argues that some other actions are not yet performed, stating that there is no time frame and that “all actions” is undefined and that I interpreted the meaning of “all actions” based on the best of ability. "Florida courts also require that in order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order." Dep't of Children & Families v. R.H., 819 So. 2d 858, 862 (Fla. 5th DCA 2002) (footnote omitted). "[T]rial courts should make an express finding of ability to comply before imposing sanctions." Fla. Coast Bank of Pompano Beach v. Mayes, 433 So. 2d 1033, 1036 (Fla. 4th DCA 1983); see State, Dep't of Health & Rehabilitative Servs. v. Maxwell, 667 So. 2d 980, 980-81 (Fla. 4th DCA 1996) (reversing an order of contempt because the trial court failed to make an express finding that HRS had the ability to comply with the court's directives).” Harris v. Hampton, 70 So. 3d 747 (Fla. Dist. Ct. App. 2011). Am I safe now from possible contempt charges? Still it is unclear to me how the court will find my ability to comply: what metric does it use?

 

[LdiJ]

Thanks for the very valuable feedbacks.


“The hearing should at least result in "all actions" being clearly defined and the time for performance of these actions made clear.” --> the time-frame for rehearing and appeal are already over and the injunction is final. It seems, the court cannot make any changes to the injunction now because of the following case law. “Once a final judgment has been rendered and the time for filing a petition for rehearing or motion for new trial has passed the court loses all jurisdiction over the cause other than to see that proper entry of the judgment or decree is made and that the rights determined and fixed by it are properly enforced.” Dipaolo V. ROLLINS LEASING CORP. 700 So.2d 31 (Fl. 5th DCA, 1997). Therefore, I think, there is no room for amending the injunction now (I will certainly oppose if the court asks me if there is an agreement for amendment).

“the judge is not apt to be pleased with feigned ignorance.” --> To avoid any possible contempt problem to myself, I wish to take actions at my disposal and then argue, if necessary when the other party argues that some other actions are not yet performed, stating that there is no time frame and that “all actions” is undefined and that I interpreted the meaning of “all actions” based on the best of ability. "Florida courts also require that in order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order." Dep't of Children & Families v. R.H., 819 So. 2d 858, 862 (Fla. 5th DCA 2002) (footnote omitted). "[T]rial courts should make an express finding of ability to comply before imposing sanctions." Fla. Coast Bank of Pompano Beach v. Mayes, 433 So. 2d 1033, 1036 (Fla. 4th DCA 1983); see State, Dep't of Health & Rehabilitative Servs. v. Maxwell, 667 So. 2d 980, 980-81 (Fla. 4th DCA 1996) (reversing an order of contempt because the trial court failed to make an express finding that HRS had the ability to comply with the court's directives).” Harris v. Hampton, 70 So. 3d 747 (Fla. Dist. Ct. App. 2011). Am I safe now from possible contempt charges? Still it is unclear to me how the court will find my ability to comply: what metric does it use?

If you think that a judge may not clarify the language of an injunction during a contempt proceeding, then you are wrong.

What I think that is really going on here is that your ego is getting in the way of your sense of self preservation. I think that you are so intent on winning something over on this guy, and so ticked off about losing the court case that you want to dig your heels in turn into a stubborn fool.

I have seen many people do that in my lifetime, and it never produces good results for them.

What you need to be doing is taking down everything that is within your power to take down, and get documentation proving that you cannot take down what you cannot take down. Then, if you get hauled into court for contempt, you can prove you tried.

 

[denerio]

Thank you. I understand the seriousness and I will do all I can and will produce the proofs of all my attempts (and possible outcomes) to the court. By the way, in Federal Trade Com. v. Latrese., Case No. 3:08-cv-1001-J-34JRK, United States District Court Middle District of Florida Jacksonville Division, Document 227, November 19, 2012, the Court ruling is as follows:

“A finding of civil contempt must be supported by clear and convincing evidence that ‘the allegedly violated order was valid and lawful; . . . the order was clear and unambiguous; and the . . . alleged violator had the ability to comply with the order.’” FTC v. Leshin 618 F.3d 1221, 1232 (11th Cir. 2010)(citation omitted).

Thus, the party seeking an order of civil contempt has the burden of demonstrating by clear and convincing proof “that
1) the allegedly violated order was valid and lawful;
2) the order was clear, definite and unambiguous; and
3) the alleged violator had the ability to comply with the order.’” McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000) (citation omitted).

The evidence must also establish clearly and convincingly that the order was indeed violated. FTC v. Garden of Life, Inc., 845 F. Supp.2d 1328, 1331 (S.D. Fla. 2012); Ameriprise Fin. Servs., Inc. v. Lawton, No. 2:11-cv-573-FtM-29SPC, 2011 WL 6412424, at * 1 (M.D. Fla. Dec. 21, 2011); see also FTC v. Lane Labs-USA, Inc., 624 F.3d 575, 582 (3d Cir. 2010); SEC v. Solow, 682 F. Supp.2d at 1325; FTC v. Slimamerica, 2011 WL 882109, at *3; FTC v. RCA Credit Servs., LLC, 2011 WL 5924969, at *1.”

However, the Plaintiff has not yet clearly and convincingly proved the conditions 2 and 3 above. I do not understand how the court can proceed any further without this proof.
Once I do all I can to remove the messages and produce the proofs of my efforts (and possible outcomes from my efforts) to the court, then Plaintiff will have hard time proving clearly and convincingly that the order was indeed violated. Nowhere the order said that all the postings should be removed.

 

[CTU]

Thank you. I understand the seriousness and I will do all I can and will produce the proofs of all my attempts (and possible outcomes) to the court. By the way, in Federal Trade Com. v. Latrese., Case No. 3:08-cv-1001-J-34JRK, United States District Court Middle District of Florida Jacksonville Division, Document 227, November 19, 2012, the Court ruling is as follows:

“A finding of civil contempt must be supported by clear and convincing evidence that ‘the allegedly violated order was valid and lawful; . . . the order was clear and unambiguous; and the . . . alleged violator had the ability to comply with the order.’” FTC v. Leshin 618 F.3d 1221, 1232 (11th Cir. 2010)(citation omitted).

Thus, the party seeking an order of civil contempt has the burden of demonstrating by clear and convincing proof “that
1) the allegedly violated order was valid and lawful;
2) the order was clear, definite and unambiguous; and
3) the alleged violator had the ability to comply with the order.’” McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000) (citation omitted).

The evidence must also establish clearly and convincingly that the order was indeed violated. FTC v. Garden of Life, Inc., 845 F. Supp.2d 1328, 1331 (S.D. Fla. 2012); Ameriprise Fin. Servs., Inc. v. Lawton, No. 2:11-cv-573-FtM-29SPC, 2011 WL 6412424, at * 1 (M.D. Fla. Dec. 21, 2011); see also FTC v. Lane Labs-USA, Inc., 624 F.3d 575, 582 (3d Cir. 2010); SEC v. Solow, 682 F. Supp.2d at 1325; FTC v. Slimamerica, 2011 WL 882109, at *3; FTC v. RCA Credit Servs., LLC, 2011 WL 5924969, at *1.”

However, the Plaintiff has not yet clearly and convincingly proved the conditions 2 and 3 above. I do not understand how the court can proceed any further without this proof.
Once I do all I can to remove the messages and produce the proofs of my efforts (and possible outcomes from my efforts) to the court, then Plaintiff will have hard time proving clearly and convincingly that the order was indeed violated. Nowhere the order said that all the postings should be removed.

If you insist on playing games with the court, it's not going to end well. Are you trying to get the court to sanction you?

 

[quincy]

I think you are on shaky ground, especially if the court action that spawned the injunction centered on your online postings and the need for their removal, but you can try to convince the court of your honest confusion over the terms of the injunction.

I fear the judge will not be kind, even if you pepper his courtroom with case law.

Good luck.

 

[denerio]

Many thanks for the valuable feedbacks. I will take whatever (and all) actions I can. You really opened my eyes.

Still I am confused on “all actions”. Whatever is reasonable to me to satisfy the requirement may not be reasonable to the court. What is the benchmark to define this “all actions”, because the list of comments that should be removed is not mentioned in the injunction? Only a bunch of website addresses, for example A, B, C, and D, are mentioned in the injunction. Then The injunction states, that the comments that should be removed include but not limited to those at A, B, C, and D.

(i). If I take all actions to remove the comments at webpages A, B, C, and D, and then perform a Google search (using Plaintiff’s name as keyword) to find any other comments and if there are any then I take all actions to remove those other comments also then will it be enough to satisfy “all actions”? What if the Court asks me why didn’t I do Yahoo search, Bing search also (in the same way I did Google search) to find additional comments. Hypothetically, if I do Yahoo and Bing searches then Court may ask why didn’t I do search using Ask.com. That is, there is always room for doing more. When should I stop?

(ii). Does the benchmark or the definition of “all actions” depend on the background of the defendant: for example, if I have knowledge on internet and computers then will the benchmark be higher than that of a person (if that person was the defendant in this case) who barely knew sending emails.