United States District Court, N.D. Illinois
May 5, 2004.
COVENANT AIR & WATER, LLC, Plaintiff,
CLEANER LIVING, INC.; AQUATIVA WATER CENTER OF NEW ORLEANS, INC.; DOLPHIN WATER OF NEW ORLEANS, INC.; AHMAD MOUCRABI; and RAJI MUGRABT, Defendants
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Covenant Air and Water LLC, filed suit against Defendants,
Cleaner Living, Inc.; Aquativa Clean Water Center of New Orleans, Inc.;
Dolphin Water of New Orleans, Inc.; Ahmad Mougrabi; and Raji Mugrabi,
Plaintiff alleges, among other things, that it terminated its Dealer
Agreement with Defendants; but prior to this termination, Defendants
placed a number of advertisements in telephone books which used
Plaintiff's AQUAtiva trademark. Presently before the Court is Plaintiff's
Motion for a Rule to Show Cause, Finding of Contempt, and Sanctions. For
the following reasons, Plaintiff's Motion is denied.
On November 25, 2003, Plaintiff filed its Complaint against Defendants
and sought a Temporary Restraining Order ("TRO") On December 2, 2003, the
TRO was granted; Defendants did not appear at that hearing. On December 15, 2003, the parties entered into a stipulated preliminary
injunction. The preliminary injunction stated, in relevant part, that
"Defendants shall disconnect and provide its full consent and cooperation
to transfer immediately all telephone numbers formerly used by
AQUAtiva() Clean Water Center of New Orleans, Inc. . . . to Covenant at
Defendants claim, however, that they did not agree to pay any
outstanding telephone bills. Defendants specifically argue that Plaintiff
inserted a provision in its proposed Agreed Preliminary Injunction that
would have required Defendants to pay all outstanding telephone
balances. Defendants, though, refused to agree to this provision, which
was not part of the TRO. The Court also rejected Plaintiffs attempt to
impose a preliminary injunction that was broader than the TRO.
Therefore, this provision was stricken from the Agreed Preliminary
Prior to March 5, 2004, Plaintiff attempted to transfer the telephone
numbers at issue for its use; but a representative of Bell South, the
telephone company who owns and operates these numbers, informed Plaintiff
that Defendants have unpaid balances on each of the telephone numbers.
The representative further stated that the numbers cannot be transferred
until the balances are paid in full. These balances amount to over
Defendants argue that: (1) the parties agreed not to include a specific
provision requiring Defendants to pay all outstanding balances owed to
any telephone company for the telephone numbers at issue prior to their
transfer to Plaintiff; and (2) Plaintiff can seek damages for those
payments instead of seeking injunctive relief.
Defendants' arguments are persuasive. The specific terms of the Agreed
Preliminary Injunction do not clearly and unambiguously obligate
Defendants to pay amounts due and owed for previous telephone services, nor can such language in the agreed
injunction fairly be read as an expense of transferring the phone numbers
In addition, Plaintiff seeks an amount certain, which, if Defendants
are liable for payments, would be properly recoverable in an action at
law for damages,
Plaintiffs Motion for a Rule to Show Cause, Finding of Contempt, and
Sanctions is denied.
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