1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Early Warning Services LLC, No. CV-24-01587-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Warren Vurl Johnson, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Early Warning Service LLC’s (“EWS”) Motion 16 to Hold Defendants in Contempt (Doc. 225). The Motion has been fully briefed and the 17 Court heard oral argument on the Motion on September 22, 2025, which was continued on 18 September 24, 2025. The Court granted the Motion against Defendant Johnson during 19 oral argument and now explains its reasoning. 20 I. BACKGROUND 21 On December 4, 2024, the Court entered the following preliminary injunction (the 22 “PI Order”) against all Defendants: IT IS FURTHER ORDERED that Defendants (1) return all hard copies of 23 documents comprising or containing EWS’s Confidential Information or 24 Trade Secrets to EWS, without retaining any physical copies of those documents; (2) preserve, without modification, all digital electronic copies 25 of documents comprising or containing EWS’s Confidential Information or 26 Trade Secrets within their position, custody, or control; and (3) provide access to all digital electronic devices and media and all electric mail and 27 storage accounts within their possession, custody, or control—including, 28 without limitation, all computers, laptops, tablets, external hard drives, other external media and storage devices, smartphones, personal email accounts, 1 OneDrive, Dropbox, Box, Google Drive and similar accounts—that may include EWS’s Confidential Information or Trade Secrets for forensic 2 imaging of those devices and accounts (including all metadata) by EWS’s 3 forensics vendor. 4 (Doc. 70 at 16–17). Johnson appealed but the Ninth Circuit affirmed the PI Order. Early 5 Warning Servs., LLC v. Brandon O’loughlin, P.A.Z.E. LLC, No. 24-7315, 2025 WL 6 1895313, at *2 (9th Cir. July 9, 2025). Johnson then filed a Motion for Clarification (Doc. 7 198), which the Court denied and ordered Johnson to “comply with the terms of the 8 injunction no later than Friday, August 15, 2025.” (Doc. 218 at 3). Johnson refused, 9 claiming it would be legally impossible for him to comply with the injunction. (Doc. 222 10 at 1.) EWS then filed the present Motion to hold Defendants in contempt. (Doc. 225.)1 11 The Court held oral argument on the Motion on September 22, 2025, during which, 12 the Court ordered EWS to propose examination protocols and a list of search terms and 13 parameters for the forensic imaging. EWS sent its proposal to Johnson and the Court. The 14 Court continued oral argument on September 24, 2025 to discuss EWS’s proposals. During 15 oral argument, the Court found Johnson in contempt of the PI Order and adopted, and 16 ordered Johnson’s compliance with, EWS’s proposals (the “Forensic Imaging Order”). 17 The Court further ordered that Johnson had forty-eight hours to comply with the Forensic 18 Imaging Order and imposed a $1,000 per-day fine for each day Johnson did not comply. 19 II. LEGAL STANDARD 20 “Civil contempt consists of a party’s disobedience to a specific and definite court 21 order by failure to take all reasonable steps within the party’s power to comply.” Institute 22 of Cetacean Rsch. v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014) 23 (citation modified) (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 24 F.3d 693, 695 (9th Cir. 1993)). “A district court has the inherent authority to enforce 25 compliance with its orders through a civil contempt proceeding, a wide latitude in 26 determining whether there has been a contemptuous violation of its order, and broad 27 1 EWS also seek sanctions pursuant to Federal Rule of Civil Procedure (“Rule”) 28 37(b)(2)(A)(i). (Doc. 225 at 18–19.) The Court dismissed EWS’s request without prejudice during oral argument. 1 equitable power to order appropriate relief.” Toyo Tire & Rubber Co. V. Hong Kong 2 Tri-Ace Tire Co., 281 F. Supp. 3d 967, 984 (C.D. Cal. 2017) (citation modified). “In a 3 civil contempt action, ‘[t]he moving party has the burden of showing by clear and 4 convincing evidence that the contemnors violated a specific and definite order of the court. 5 The burden then shifts to the contemnors to demonstrate why they were unable to 6 comply.’” Fed. Trade Comm’n v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1211 (9th 7 Cir. 2004) (alteration in original) (quoting Stone v. City & County of San Francisco, 968 8 F.2d 850, 856 n.9 (9th Cir. 1992)). 9 III. DISCUSSION 10 Johnson openly admits that he did not comply with the PI Order due to “legal 11 impossibility.” (Doc. 222 at 1.) Accordingly, the Court only addresses whether Johnson’s 12 noncompliance is excusable. It is not. “Inability to comply with an order is a complete 13 defense to a charge of contempt.” Coleman v. Newsom, 131 F.4th 948, 959 (9th Cir. 2025) 14 (citation modified). “If the record establishes that there in fact is a present inability to 15 comply with an order, the civil contempt inquiry is at an end.” Id. at 960. Inability requires 16 more than establishing that “compliance would be difficult or expensive”; instead, 17 contemnors must prove that “compliance was ‘factually impossible.’” Id. (quoting United 18 States v. Rylander, 460 U.S. 752, 757 (1983)). Johnson has failed to allege any facts 19 suggesting that it would be factually impossible for him to comply with the PI Order.2 20 Instead, Johnson mistakenly equates “impossibility” with his desire to relitigate the 21 propriety of the PI Order based on purported defects. However, the PI Order has already 22 been affirmed by the Ninth Circuit. Early Warning Servs., 2025 WL 1895313, at *2. 23 Additionally, “[i]t is a ‘long-standing rule that a contempt proceeding does not open to 24 reconsideration the legal or factual basis of the order alleged to have been disobeyed and 25 thus become a retrial of the original controversy.’” United States v. Ayres, 166 F.3d 991, 26 2 Johnson argues that “the Court has expressly disclaimed contempt.” (Doc. 235 at 10.) 27 The Court has not done so. The Court merely pointed out that contempt had not been at issue prior to the filing of the pending request. Additionally, Johnson has not cited any 28 authority establishing that the Court can disclaim its inherent authority. See Toyo 281 F. Supp. 3d at 984. 1 995 (9th Cir. 1999) (quoting Rylander, 460 U.S. at 756); see Maggio v. Zeitz, 333 U.S. 56, 2 69 (1948). Johnson’s arguments are a plain attempt to relitigate the propriety of the PI 3 Order. Accordingly, they are insufficient to demonstrate that Johnson was unable to 4 comply with the PI Order. 5 As to Defendant O’Loughlin, he has not had appropriate notice that he had to 6 comply with the PI Order to be held in contempt. On December 11, 2024, this Court stayed 7 the obligation to comply with the PI Order until seven days after the Court rules on 8 Johnson’s First Motion to Stay (Doc. 72). (Doc. 76.) On June 26, 2025, this Court denied 9 Johnson’s First Motion to Stay and ordered Johnson to comply with the stayed provision 10 within seven days. (Doc. 179.) The Court did not order all Defendants to comply in the 11 June 26, 2025 order. (Id.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Early Warning Services LLC, No. CV-24-01587-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Warren Vurl Johnson, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiff Early Warning Service LLC’s (“EWS”) Motion 16 to Hold Defendants in Contempt (Doc. 225). The Motion has been fully briefed and the 17 Court heard oral argument on the Motion on September 22, 2025, which was continued on 18 September 24, 2025. The Court granted the Motion against Defendant Johnson during 19 oral argument and now explains its reasoning. 20 I. BACKGROUND 21 On December 4, 2024, the Court entered the following preliminary injunction (the 22 “PI Order”) against all Defendants: IT IS FURTHER ORDERED that Defendants (1) return all hard copies of 23 documents comprising or containing EWS’s Confidential Information or 24 Trade Secrets to EWS, without retaining any physical copies of those documents; (2) preserve, without modification, all digital electronic copies 25 of documents comprising or containing EWS’s Confidential Information or 26 Trade Secrets within their position, custody, or control; and (3) provide access to all digital electronic devices and media and all electric mail and 27 storage accounts within their possession, custody, or control—including, 28 without limitation, all computers, laptops, tablets, external hard drives, other external media and storage devices, smartphones, personal email accounts, 1 OneDrive, Dropbox, Box, Google Drive and similar accounts—that may include EWS’s Confidential Information or Trade Secrets for forensic 2 imaging of those devices and accounts (including all metadata) by EWS’s 3 forensics vendor. 4 (Doc. 70 at 16–17). Johnson appealed but the Ninth Circuit affirmed the PI Order. Early 5 Warning Servs., LLC v. Brandon O’loughlin, P.A.Z.E. LLC, No. 24-7315, 2025 WL 6 1895313, at *2 (9th Cir. July 9, 2025). Johnson then filed a Motion for Clarification (Doc. 7 198), which the Court denied and ordered Johnson to “comply with the terms of the 8 injunction no later than Friday, August 15, 2025.” (Doc. 218 at 3). Johnson refused, 9 claiming it would be legally impossible for him to comply with the injunction. (Doc. 222 10 at 1.) EWS then filed the present Motion to hold Defendants in contempt. (Doc. 225.)1 11 The Court held oral argument on the Motion on September 22, 2025, during which, 12 the Court ordered EWS to propose examination protocols and a list of search terms and 13 parameters for the forensic imaging. EWS sent its proposal to Johnson and the Court. The 14 Court continued oral argument on September 24, 2025 to discuss EWS’s proposals. During 15 oral argument, the Court found Johnson in contempt of the PI Order and adopted, and 16 ordered Johnson’s compliance with, EWS’s proposals (the “Forensic Imaging Order”). 17 The Court further ordered that Johnson had forty-eight hours to comply with the Forensic 18 Imaging Order and imposed a $1,000 per-day fine for each day Johnson did not comply. 19 II. LEGAL STANDARD 20 “Civil contempt consists of a party’s disobedience to a specific and definite court 21 order by failure to take all reasonable steps within the party’s power to comply.” Institute 22 of Cetacean Rsch. v. Sea Shepherd Conservation Soc’y, 774 F.3d 935, 945 (9th Cir. 2014) 23 (citation modified) (quoting In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 24 F.3d 693, 695 (9th Cir. 1993)). “A district court has the inherent authority to enforce 25 compliance with its orders through a civil contempt proceeding, a wide latitude in 26 determining whether there has been a contemptuous violation of its order, and broad 27 1 EWS also seek sanctions pursuant to Federal Rule of Civil Procedure (“Rule”) 28 37(b)(2)(A)(i). (Doc. 225 at 18–19.) The Court dismissed EWS’s request without prejudice during oral argument. 1 equitable power to order appropriate relief.” Toyo Tire & Rubber Co. V. Hong Kong 2 Tri-Ace Tire Co., 281 F. Supp. 3d 967, 984 (C.D. Cal. 2017) (citation modified). “In a 3 civil contempt action, ‘[t]he moving party has the burden of showing by clear and 4 convincing evidence that the contemnors violated a specific and definite order of the court. 5 The burden then shifts to the contemnors to demonstrate why they were unable to 6 comply.’” Fed. Trade Comm’n v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1211 (9th 7 Cir. 2004) (alteration in original) (quoting Stone v. City & County of San Francisco, 968 8 F.2d 850, 856 n.9 (9th Cir. 1992)). 9 III. DISCUSSION 10 Johnson openly admits that he did not comply with the PI Order due to “legal 11 impossibility.” (Doc. 222 at 1.) Accordingly, the Court only addresses whether Johnson’s 12 noncompliance is excusable. It is not. “Inability to comply with an order is a complete 13 defense to a charge of contempt.” Coleman v. Newsom, 131 F.4th 948, 959 (9th Cir. 2025) 14 (citation modified). “If the record establishes that there in fact is a present inability to 15 comply with an order, the civil contempt inquiry is at an end.” Id. at 960. Inability requires 16 more than establishing that “compliance would be difficult or expensive”; instead, 17 contemnors must prove that “compliance was ‘factually impossible.’” Id. (quoting United 18 States v. Rylander, 460 U.S. 752, 757 (1983)). Johnson has failed to allege any facts 19 suggesting that it would be factually impossible for him to comply with the PI Order.2 20 Instead, Johnson mistakenly equates “impossibility” with his desire to relitigate the 21 propriety of the PI Order based on purported defects. However, the PI Order has already 22 been affirmed by the Ninth Circuit. Early Warning Servs., 2025 WL 1895313, at *2. 23 Additionally, “[i]t is a ‘long-standing rule that a contempt proceeding does not open to 24 reconsideration the legal or factual basis of the order alleged to have been disobeyed and 25 thus become a retrial of the original controversy.’” United States v. Ayres, 166 F.3d 991, 26 2 Johnson argues that “the Court has expressly disclaimed contempt.” (Doc. 235 at 10.) 27 The Court has not done so. The Court merely pointed out that contempt had not been at issue prior to the filing of the pending request. Additionally, Johnson has not cited any 28 authority establishing that the Court can disclaim its inherent authority. See Toyo 281 F. Supp. 3d at 984. 1 995 (9th Cir. 1999) (quoting Rylander, 460 U.S. at 756); see Maggio v. Zeitz, 333 U.S. 56, 2 69 (1948). Johnson’s arguments are a plain attempt to relitigate the propriety of the PI 3 Order. Accordingly, they are insufficient to demonstrate that Johnson was unable to 4 comply with the PI Order. 5 As to Defendant O’Loughlin, he has not had appropriate notice that he had to 6 comply with the PI Order to be held in contempt. On December 11, 2024, this Court stayed 7 the obligation to comply with the PI Order until seven days after the Court rules on 8 Johnson’s First Motion to Stay (Doc. 72). (Doc. 76.) On June 26, 2025, this Court denied 9 Johnson’s First Motion to Stay and ordered Johnson to comply with the stayed provision 10 within seven days. (Doc. 179.) The Court did not order all Defendants to comply in the 11 June 26, 2025 order. (Id. at 4.) Although the December 11, 2024 order advised all 12 Defendants that the stay only applied until seven days after the motion to stay was ruled 13 on, (Doc. 76 at 2), the June 26, 2025 order only directs Defendant Johnson to comply, 14 (Doc. 179 at 4.) Given the requirement for a specific and definite court order and 15 Defendant O’Loughlin’s pro se status, the Court finds he did not have clear notice that he 16 had to comply. Therefore, the Court will now order Defendant O’Loughlin’s compliance.3 17 IV. CONCLUSION 18 Accordingly, the Court found Johnson in contempt. The Court orders as follows: 19 IT IS HEREBY ORDERED granting in part EWS’s Motion to Hold Defendants 20 in Contempt (Doc. 225). The motion is granted as to Defendant Johnson, denied as to 21 PAZE and denied without prejudice as to Defendant O’Loughlin. 22 IT IS FURTHER ORDERED that Johnson must comply with the Forensic 23 Imaging Order within forty-eight (48) hours of the date of this Order. 24 IT IS FURTHER ORDERED Johnson must pay a fine of $1,000 per day to the 25 Court for each day he fails to comply with the Forensic Imaging Order beginning on 26 September 27, 2025. 27 3 EWS also sought to hold P.A.Z.E., LLC in contempt. However, the Court has already 28 entered Default Judgement against P.A.Z.E. (Doc. 208). The Court does not find P.A.Z.E. in contempt at this juncture. 1 IT IS FURTHER ORDERED that O’ Loughlin must comply with the terms of the || injunction by no later than September 30, 2025. 3 Dated this 24th day of September, 2025. 4 5 << 6 S BS ee Gnvted States District ude. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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