Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1982)

MEMORANDUM^** 

Donallco appeals the district court's order amending its prior judgment adjudicating Donallco in civil contempt. Donallco argues that the district court abused its discretion when it imposed a $100,000 coercive sanction against Donallco. We affirm.

This is not the first time we have seen this case. General Signal sued Donallco for trademark infringement and common law torts in December 1980. On May 5, 1982, a final judgment by consent and stipulation was approved and entered by Judge Manual Real. In August, 1984, General Signal filed a motion for an order adjudicating Donallco to be in civil contempt. The district court found Donallco in contempt and ordered Donallco to pay over $400,000 in penalties to General Signal.

On appeal, we affirmed the finding of contempt, but we found that the $400,000 penalty had been improperly imposed. We stated:

Sanctions for civil contempt may be imposed by the district court to coerce obedience to a court order, or to compensate the party pursuing the contempt action for injuries resulting from the contemptuous behavior, or both. It is unclear whether the district court intended the $400,000 suspended sanction to be compensatory or coercive. We vacate the sanction imposed because we find the record insufficient to support the sanction imposed by the district court under either theory.... If the fine, or any portion of the fine, is coercive, it should be payable to the court, not General Signal. Moreover, in determining how large a coercive sanction should be the court should consider the "character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction."

General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986).

On remand, the district court specified that the sanction was coercive, and asked Donallco's counsel to indicate the amount required to prevent future violations. Donallco's counsel responded that $100,000 would be enough, and the district court ordered that Donallco pay that amount to the treasury of the United States. The final order specified an amount payable of $100,000, with $25,000 payable immediately and $75,000 to be paid in the event of a future violation.

We review the district court's determination to impose sanctions for civil contempt for an abuse of discretion. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir. 1984). In this case the district court has complied with the instructions of General Signal, and there has been no abuse of discretion.

The district court has adequately clarified the purpose of its sanction. See 787 F.2d at 1380. At the remand hearing, the parties agreed that the purpose of the district court's sanction was coercive and not compensatory. ER App. D at 3-5. And the district court ordered that the sanctions be payable to the treasury, rather than to General Signal. ER App. I at 2.

Moreover, the district court considered both the effect and character of the harm, and the probable effectiveness of the sanction. See 787 F.2d at 1380. The district court found that General Signal's violation could jeopardize lives and property. ER App. H at 5. And the district court asked Donallco's own counsel what level of sanction would prevent future violations and imposed this level. ER App. D at 5. Thus, the district court did not abuse its discretion in imposing the sanctions for contempt.

It appears from the record that this appeal was taken for the sole purpose of delaying the payment of the amended sanctions order. See ER App. D at 5 (Donallco's counsel suggests appropriate level of sanctions to district court, district court accepts this level, Donallco's counsel immediately seeks to stay payment pending Donallco's appeal of Donallco's own suggested order). We therefore exercise our discretion and grant appellees attorneys' fees as well as double costs. See Fed. R. App. P. 38.

The district court's order is AFFIRMED.