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COVENANT AIR & WATER LLC v. CLEANER LIVING

United States District Court, N.D. Illinois


May 5, 2004.

COVENANT AIR & WATER, LLC, Plaintiff,
v.
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.

BACKGROUND

  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' expense."

  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 Injunction.

  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 $6,500,00.

  ANALYSTS

  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 to Plaintiff.

  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,

CONCLUSION
  Plaintiffs Motion for a Rule to Show Cause, Finding of Contempt, and Sanctions is denied.

20040505

© 1992-2004 VersusLaw Inc.



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