National Drying Machinery Co. v. Ackoff, 12117.
Decision Date | 01 May 1957 |
Docket Number | No. 12117.,12117. |
Citation | 245 F.2d 192 |
Parties | NATIONAL DRYING MACHINERY CO. v. Jack ACKOFF and National Dryer Mfg. Corp. NATIONAL DRYER SALES CORPORATION (World Dryer Corporation, Successor in Interest Substituted) v. NATIONAL DRYING MACHINERY CO. National Dryer Mfg. Corp. and National Dryer Sales Corp. (World Dryer Corporation, Successor in Interest Substituted), Appellants. |
Court | U.S. Court of Appeals — Third Circuit |
Nochem S. Winnet, Philadelphia, Pa. (Joseph Smukler, Daniel Lowenthal, Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., on the brief), for appellants.
Louis Necho, Philadelphia, Pa., for appellees.
Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
This appeal arises out of a civil contempt proceeding instituted after final decree in a trademark infringement case. The final decree had been approved by this court. 228 F.2d 349, affirming D.C., 129 F.Supp. 389. Several months later the successful plaintiff formally charged defendants with willful violation of certain prohibitory provisions of the decree which had enjoined defendants from selling drying machines "under a business name which includes the name `National'."
What the defendants have done since the decree, according to the present findings of the district court,
The district court held that this action constituted civil contempt and ordered the defendants to "* * * pay Plaintiff a fine in the total sum of $5,000.00, a counsel fee in the sum of $1,000.00 and costs of the contempt proceeding with interest at 6% from November 20th, 1956, until the said sums are paid." However, the petition which initiated these contempt proceedings contained no allegation that the petitioner had suffered any damage as a result of the violation of the injunction. At the hearing there was neither proof nor tender of proof as to how much, if anything, plaintiff was entitled to recover.
The present appeal is bottomed upon this admitted failure to claim or prove damage and a legal argument that no punitive award, but only a sum to compensate for loss, may be granted to the complainant in a civil contempt proceeding.
Appellant's basic legal position is sound. Fifty years ago, when the courts were not yet agreed as to the scope of civil contempt, the Circuit Court of Appeals for the Second Circuit made a very clear statement of the position which, as we read the cases, has since won the day:
Christensen Engineering Co. v. Westinghouse Air Brake Co., 2 Cir., 1905, 135 F. 774, 782.
Attesting to present day acceptance of this rationale are assertions in two often cited opinions of the Supreme Court. In United States v. United Mine Workers, 1947, 330 U.S. 258, 303-304, 67 S.Ct. 677, 701, 91 L.Ed. 884. Chief Justice Vinson defined the scope of civil contempt as follows: Substantially the same thing had already been said by the Court in Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797: "* * * The only possible remedial relief for such disobedience violating a prohibitory injunction would have been to impose a fine for the use of complainant, measured in some degree by the pecuniary injury caused by the act of disobedience."
It is difficult to square the $5,000.00 award in this case with such authoritative assertions of the limitations of legal power in civil contempt cases. Recognizing this problem, the district court ordered a reargument after its adjudication of contempt and fine had been announced in a memorandum opinion. Thereafter, the court restated its position in a second memorandum opinion, which reads in part as follows:
We think this was error. Whether an award in civil contempt be measured in terms of a plaintiff's loss or a defendant's profit, such an award, by very definition, must be an attempt to compensate plaintiff for the amount he is out-of-pocket or for what defendant by his wrong may be said to have diverted from the plaintiff or gained at plaintiff's expense. Unless this limitation is recognized, a requirement that one party turn his profits over to his adversary itself becomes a punitive rather than a compensatory imposition.
Moreover, although we appreciate the purpose of the district court to dispose of this matter in a way which would be both expeditious and fair to the parties, we do not...
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