Wal-Mart Stores, Inc. v. Cuker Interactive, LLC
ORDER granting in part and denying in part 486 Motion to Stay. See Order for details. Signed by Honorable Timothy L. Brooks on August 31, 2017. (jch)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
WAL-MART STORES, INC.
CASE NO. 5:14-CV-5262
CUKER INTERACTIVE, LLC
ORDER STAYING INJUNCTION
Currently before the Court are Wal-Mart Stores, Inc.’s (“Walmart”) Motion for Stay
of Injunction (Doc. 486), and Cuker Interactive, LLC’s (“Cuker”) Response (Doc. 489) in
opposition. On July 28, 2017, the Court entered its Judgment in this case, awarding
Cuker $10,197,065.00 in damages from Walmart, and enjoining Walmart to delete certain
Cuker-authored computer files from its possession. See Doc. 484. On August 11, the
Court stayed execution on the money judgment pending disposition of Walmart’s posttrial motions, but declined to consider whether a further stay of execution pending appeal
was warranted, as the latter issue was not yet ripe. See Doc. 488, p. 2. Walmart filed a
Motion for Judgment as a Matter of Law under Rule 50(b) (Doc. 490) and a Motion for
New Trial or Remittitur under Rule 59 (Doc. 493) on August 25, 2017; Cuker has not yet
responded to either of those motions.
Walmart asks the Court to stay the injunction pending the resolution of its Rule
50(b) and Rule 59 motions, and also pending any appeal that may follow disposition of
those motions. Rule 62(b) authorizes this Court to stay execution of a judgment pending
disposition of the aforementioned post-judgment motions “[o]n appropriate terms for the
opposing party’s security,” and Rule 62(c) authorizes a stay of an injunction pending
appeal “on terms for bond or other terms that secure the opposing party’s rights.” As with
the money judgment, the Court finds that the matter of whether to enter a stay of the
injunction pending appeal under Rule 62(c) is not yet ripe for consideration, given that no
notice of appeal has been filed.
The decision whether to stay a permanent injunction under Rule 62(b) pending
resolution of post-trial motions “is within the sound discretion of the court.” See Honeywell
Int’l, Inc. v. Universal Avionics Sys. Corp., 397 F. Supp. 2d 537, 547–48 (D. Del. 2005).
In exercising that discretion, the Court should consider the following four factors: “(1)
whether the stay applicant has made a strong showing that [it] is likely to succeed on the
merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties interested in the proceeding;
and (4) where the public interest lies.” Brady v. Nat’l Football League, 640 F.3d 785, 789
(8th Cir. 2011) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The Court must
balance these factors, considering their relative strength; for example, the stronger a stay
applicant’s showing is as to the first factor, the less is required from that party as to the
second factor, and vice versa. See id. However, the first factor is the most important
factor, and at least some showing must always be made as to the second factor for a stay
to be granted. See id.
Addressing the factors in reverse order—the Court does not believe the fourth
factor weighs strongly in either direction. Regarding the third factor, although Cuker
argues that it would be substantially injured by a stay because Walmart’s
misappropriation of its trade secrets would continue unabated, the Court agrees with
Walmart that it is significant that “in the three years this case has been pending, Cuker
has not sought a preliminary injunction or otherwise attempted to restrain the use of its
claimed trade secrets prior to trial.” (Doc. 487, p. 7). With respect to the second factor,
Walmart contends that if it were required to destroy the computer files in question, it would
be unable to recover them in the event of a judicial determination that they were not trade
secrets after all, and it would “have spent considerable time and resources to comply with
a since-reversed injunction.” Id. at 6. The Court is skeptical of the proposition that
Walmart could not recover the files since, as Cuker points out, Walmart’s attorneys will
continue to possess throughout the pendency of this case the hard drive introduced at
trial which contains the files. However, the Court will credit the point that Walmart might
not be able to recover the time and resources spent complying with the injunction, such
that Walmart has made at least some showing of irreparable injury here absent a stay.
Finally, the volume and complexity of the legal issues implicated in Walmart’s post-trial
motions show a sufficiently strong likelihood of success on those motions to make the
first factor weigh in Walmart’s favor—which is not to say the Court thinks it is more likely
than not that Walmart’s motions will succeed. See St. Judge Med., Inc. v. Access
Closure, Inc., 2012 WL 12919351, at *1–*2 (W.D. Ark. Oct. 2, 2012).
Overall, then, these four factors weigh in favor of granting the stay pending the
resolution of Walmart’s post-trial motions. 1 Walmart states that it “is willing and able to
These are the same four factors the Court would consider on a motion to stay the
injunction pending appeal under Rule 62(c). Hilton v. Braunskill, 481 U.S. 770, 776
(1987). But the parties should not assume that the Court’s ruling on such a motion would
be the same as its ruling here under Rule 62(b). It is conceivable to the Court that any
number of events or rulings between now and then, or even simply inherent differences
between the nature of post-trial motion practice on the one hand and appellate practice
on the other, could cause the Court to view the equities in a different light. Thus, if the
post a reasonable bond as security for a stay if the Court so requires.” (Doc. 486, ¶ 7).
Cuker responds that “it is impossible for the Court to set a reasonable bond amount,” and
declines to propose any amount that would satisfy it if Walmart’s Motion were granted.
See Doc. 489, p. 7. Instead, Cuker speculates that immediate enforcement of the
injunction might uncover facts that “trigger independent legal claims” or that buttress the
record in this case with respect to Cuker’s currently-pending motions for sanctions and
attorney fees. See id. at 2. Since Cuker has not alleged any threats to its security beyond
frustration of its ability to uncover evidence of further wrongdoing, the Court believes no
bond or other additional measure is necessary for Cuker’s security during the pendency
of post-trial motion practice.
IT IS THEREFORE ORDERED that Walmart’s Motion for Stay of Injunction (Doc.
486) is GRANTED IN PART AND DENIED IN PART as follows: the injunction set out in
the Court’s Judgment is STAYED pending disposition of Walmart’s post-judgment
motions, and security for that stay is waived. Walmart’s request for a stay of injunction
pending appeal is denied without prejudice, and may be renewed when and if an appeal
IT IS SO ORDERED on this 31st day of August, 2017.
_/s/ Timothy L. Brooks______________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
Court’s ruling on the pending post-trial motions is followed by a motion to stay under Rule
62(c), then the Court will engage in a fresh and lengthier analysis of these four factors at
that time, having the benefit then of its comprehensive and “final” (with the obvious caveat
of appellate review) rulings on the motions that are currently pending.
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