Business Guides, Inc. v. Chromatic Communications Enterprises, Inc.

121 F.R.D. 402, 1988 U.S. Dist. LEXIS 8584, 1988 WL 82285
CourtDistrict Court, N.D. California
DecidedAugust 5, 1988
DocketNo. C 86-6164 SC (FW)
StatusPublished
Cited by11 cases

This text of 121 F.R.D. 402 (Business Guides, Inc. v. Chromatic Communications Enterprises, Inc.) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 121 F.R.D. 402, 1988 U.S. Dist. LEXIS 8584, 1988 WL 82285 (N.D. Cal. 1988).

Opinion

ORDER IMPOSING SANCTIONS

CONTI, District Judge.

On April 12, 1988, this court issued an order adopting the recommendations of Chief Magistrate Woelflen that Business Guides, Inc. (“Business Guides”) and its counsel Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey (“Finley Kumble”) be sanctioned pursuant to Fed.R.Civ.P. 11. The order of the court also unsealed the file and record in the matter, and granted defendants Chromatic Communications Enterprises, Inc. (“Chromatic”) and Michael Shipp (“Shipp”) thirty days to respond to the court’s findings with a motion for sanctions. The matter is currently before the court on defendants’ motion for sanctions.

[403]*403The defendants originally brought this motion for sanctions against both Business Guides and Finley Kumble. Subsequent to the defendants’ notice of the motion, this court received a letter from the law firm of Milbank, Tweed, Hadley & McCloy (“Mil-bank Tweed”) informing the court that Finley Kumble had recently dissolved and that the estate was in Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court, Southern District of New York. Milbank Tweed informed the court that it represented the Chapter 11 Trustee for Finley Kumble, and that pursuant to court order, any proceeding to recover a claim against Finley Kumble was stayed under Section 362 of the Bankruptcy Code.

The issue of the applicability of a bankruptcy stay to these proceedings has never been briefed. After consulting with Mil-bank Tweed, defendants decided to withdraw that part of their motion which applied to Finley Kumble. Defendants’ motion is therefore directed only toward Business Guides. The court will accept the representation of Milbank Tweed, as counsel for the trustee in bankruptcy, that any proceedings against Finley Kumble are stayed pursuant to the Bankruptcy Code. The court’s disposition of the matter before it does not prejudice defendants’ right to pursue a sanctions award against Finley Kumble should its legal status change.

Defendants argue that the action Business Guides brought against them had no basis in fact and was interposed to harrass them. Defendants seek the imposition of sanctions against Business Guides, pursuant to Rule 11, in the form of an award of attorney’s fees, damages for loss of business, and an order dismissing the action. Business Guides opposes defendants’ motion, arguing that sanctions are inappropriate in the circumstances of this case.

The factual background and law applicable to this matter was set out in detail in the court’s April 12,1988 order. See Business Guides v. Chromatic Communications Enterprises, Inc., 119 F.R.D. 685 (N.D.Cal.1988). In their moving papers, however, defendants have proferred evidence which further develops the factual background of these proceedings. In its order of April 12, 1988, the court explained that of the ten purported “seeds” used in Business Guides’ directory, the seeds which allegedly demonstrated copyright infringement, the court could only confirm the falsity of the information given in one seed. 119 F.R.D. at 687. Defendants have now come foward with competent evidence that they did not copy the lone purported seed from Business Guides’ directory. Rather, the defendants argue that the remaining seed was “planted” in their directory by Business Guides to investigate their operation.

The seed at issue was originally described by Business Guides as an entity entitled NFR Computer Room, 87-32 253rd St., Bellerose, New York 11426. An individual named Nick Rossini was listed as the President and Buyer of this company. According to plaintiff, Business Guides invented this company, and no such company has ever existed. See Declaration of Michael Lambe in Support of Plaintiff’s Application for a Temporary Restraining Order and for Preliminary Injunction, p. 6, filed with this court on November 7, 1986.

Michael Shipp, the president of Chromatic, has submitted a declaration in which he states “unequivocally” that he never purchased, borrowed, acquired, or'ever had in his possession Business Guides’ directory prior to the preparation of Chromatic’s directory. Declaration of Michael Shipp in Support of Motion for Award of Sanctions, p. 3. Shipp further states

I have personally reviewed portions of this Court’s record, following the unsealing thereof on or about April 12, 1988. From my review of that record, it appears that plaintiff is contending that I copied its publication, and although it originally pointed to ten so-called “seeds” which allegedly prove such copying, that claim is now reduced to a single “seed”: Richard Rossini. From a review of my own records, I have determined that Richard Rossini, doing buisness as The Answer Man, was added to our data base when he ordered one of our directories. Attached hereto as Exhibit “A” is a true [404]*404and correct copy of his order. Attached hereto as Exhibit “B” is a true and correct copy of his recent order for Micro-Leads. Following our standard practice, I forwarded to Mr. Rossini a questionnaire or survey for completion and return. Attached hereto as Exhibit “C” is a true and correct copy of the completed survey form I received from Mr. Rossini.

Id. pp. 3-4. Exhibit A is a copy of an order for Chromatic’s diskette and source book. The form has been filled out with the name of Richard Rossini as president of a company called The Answer Man. The order gives the same New York address that Business Guides states it invented. Exhibit B is a copy of an order for a Chromatic directory with the same name and address filled in as Exhibit A. Exhibit C is a copy of a letter to Nick Rossini from Chromatic’s souree book asking for any changes to the NFR Computer Listing. The letter appears to reflect a change in the title of Rossini’s company to “Rossini’s Computer Room.” This evidence indicates that some individual or entity other than Chromatic or Shipp was responsible for this seed appearing in Chromatic’s directory.

Business Guides makes no attempt to challenge defendants’ evidentiary showing. Business Guides neither admits nor denies defendants’ contention that the purported seed was planted in Chromatic’s directory by Business Guides. In fact, Business Guides’ opposition to defendants’ motion makes no mention of the Shipp declaration or the exhibits. This court can only interpret Business Guides’ silence on this subject as its tacit admission that defendants were not in fact responsible for the appearance of this purported seed in the Chromatic directory. The court is left to conclude that Business Guides’ entire lawsuit has no basis in fact.

Business Guides opposes defendants’ motion by arguing that, as a matter of law, it cannot be sanctioned for the use of its master seed list or for the presentation of an incorrect and inadequate explanation during the sanctions proceedings. These are arguments Business Guides has asserted throughout the proceedings. Business Guides also argues that it should not be sanctioned for relying in good faith on its counsel, and that Rule 11 does not authorize consequential damages.

This court has already found that Business Guides violated Rule 11. There is nothing in Business Guides’ opposition papers which has persuaded this court that this determination is unsound. The court has already considered and rejected Business Guides’ argument that its conduct is not sanctionable as a matter of law.

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Bluebook (online)
121 F.R.D. 402, 1988 U.S. Dist. LEXIS 8584, 1988 WL 82285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/business-guides-inc-v-chromatic-communications-enterprises-inc-cand-1988.