Creative Mobile Technologies, LLC v. Flywheel Software, Inc.

Filing 75

ORDER granting stipulation for entry of judgment and judgment. Signed by Judge Susan Illston on 10/5/17. (tfS, COURT STAFF) (Filed on 10/5/2017)

1 STEVEN H. WINICK (SBN 160815)
[e-mail]
2 BRIAN R. BLACKMAN (SBN 196996)
[e-mail]
3 BLAXTER | BLACKMAN LLP
475 Sansome Street, Suite 1850
4 San Francisco, California 94111
Telephone:
[phone]
[phone]
5 Facsimile:
6 Attorneys for Flywheel APP (ABC), LLC,
Assignee and Attorney-In-Fact for
7 Defendant Flywheel Software, Inc.
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
CREATIVE MOBILE TECHNOLOGIES, LLC,

Case No. 3:16-cv-02560-SI

11
Plaintiff,
12

STIPULATION AND [PROPOSED]
ORDER FOR ENTRY OF JUDGMENT

v.
13
FLYWHEEL SOFTWARE, INC.,
14

Courtroom: 1, 17th Floor
Honorable Susan Illston

Defendant.
15
16
17
18
19
20
21

22
23
24
25
26
27
28
Case No. 3:16-CV-02560-SI
FLYWHEEL’S OPPO. TO MOTION TO DISMISS SACC

`
1
2

STIPULATION FOR ORDER FOR ENTRY OF JUDGMENT
Whereas plaintiff Creative Mobile Technologies, LLC (“CMT”) filed its complaint for

3 monetary damages, a permanent injunction, and other relief against Flywheel Software, Inc.
4 (“Flywheel Software”) on May 11, 2016;
5

Whereas Flywheel Software has transferred ownership of all its rights, title, and interest in

6 and to all of its tangible and intangible assets to Flywheel App (ABC), LLC (“Assignee”),
7 pursuant to a General Assignment for the Benefit of Creditors;
8

Whereas Flywheel Software has dissolved and no longer is engaged in any business

9 operations and no longer has any officers, directors, or employees;
10

Whereas Flywheel Software has authorized Assignee to defend all actions instituted

11 against Flywheel Software, to appear on its behalf, and to act as its attorney-in-fact in all legal
12 proceedings in which Flywheel is a party; and
13

Whereas CMT and the Assignee have met, conferred, and agreed to resolve all matters in

14 dispute between CMT and Flywheel Software.
15

NOW THEREFORE, CMT and Flywheel Software, by and through Assignee, stipulate as

16 follows:
17

1.

The Court has jurisdiction over the subject matter and parties in this action.

18

2.

Venue is proper as to the Parties in this District.

19

3.

CMT contracts with taxi fleet companies across the country (“Fleets Contracts”)

20 that contain, inter alia, certain exclusivity provisions regarding the processing of electronic
21 passenger payments (the “Fleet Contracts”). Flywheel Software, by and through Assignee, does

22 not contest the validity, legality, or enforceability of the Fleet Contracts.
23

4.

CMT and Flywheel Software entered into a contract on December 4, 2014,

24 whereby Flywheel Software, inter alia, designated CMT as the exclusive provider and debit card
25 acceptance processing services made in connection with Flywheel Software’s taxi hailing mobile
26 and web application in vehicles equipped with CMT payment systems in San Francisco (the
27 “CMT-Flywheel Contract”). Flywheel Software, by and through Assignee, does not contest the
28 validity, legality, or enforceability of the CMT-Flywheel Contract.
-1-

Case No. 3:16-CV-02560-SI
STIPULATION AND PROPOSED ORDER FOR ENTRY OF JUDGMENT

1

5.

CMT has alleged that Flywheel both interfered with the Fleet Contracts and

2 breached the CMT-Flywheel Contract. Flywheel Software, by and through Assignee, does not
3 contest these allegations.
4

6.

Flywheel Software, by and through Assignee, stipulates and consents to the entry

5 of a judgment against it in the amount of $190,000.
6

7.

Flywheel Software, by and through Assignee, stipulates and consents to the entry

7 of a permanent injunction against it whereby Flywheel Software and any current or future parent
8 corporation, subsidiary, affiliate, officer, director, employee, and other person acting under its
9 control or in concert therewith are permanently restrained and enjoined from processing, directly
10 or otherwise, electronic passenger payments in vehicles equipped with CMT payments systems.
11

8.

All of CMT’s claims and all of Flywheel Software’s defenses will be dismissed

12 with prejudice.
13

9.

CMT and Flywheel Software, by and through Assignee, waive all rights to appeal

14 or otherwise challenge or contest the validity of this order and the judgment rendered in
15 accordance herewith.
16
17 IT IS STIPULATED AND AGREED BY CMT AND FLYWHEEL SOFTWARE, BY AND
18 THROUGH ASSIGNEE
19
20 Dated: September 18, 2017
SINGER/BEA LLP
21

22
By:
23
24
25

/s/ Benjamin L. Singer
Benjamin L. Singer
Katie K. Erno
Walter C. Pfeffer
ATTORNEYS FOR CREATIVE MOBILE
TECHNOLOGIES, LLC

26
27
28
-2Case No. 3:16-CV-02560-SI
STIPULATION AND PROPOSED ORDER FOR ENTRY OF JUDGMENT

1 Dated: September 18, 2017
BLAXTER | BLACKMAN LLP
2
3
By:
4
5
6
7

/s/ Steven H. Winick
Steven H. Winick
Brian R. Blackman
ATTORNEYS FOR
FLYWHEEL APP (ABC), LLC, IN ITS
CAPACITY AS ASSIGNEE AND ATTORNEYIN-FACT FOR FLYWHEEL SOFTWARE, INC.

8
9
10
11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28
-3Case No. 3:16-CV-02560-SI
STIPULATION AND PROPOSED ORDER FOR ENTRY OF JUDGMENT

`
1
2

ORDER FOR ENTRY OF JUDGMENT
The Court, having considered the parties’ Stipulation for Order for Entry of Judgment,

3 HEREBY ORDERS AS FOLLOWS:
4

1.

This Court has jurisdiction over the subject matter and parties in this action.

5

2.

The Clerk of the Court is hereby directed to enter the attached form of Judgment in

6 accordance with the parties’ Stipulation and Order, each party to bear its own attorneys’ fees,
7 costs, and expenses.
8

3.

All of CMT’s claims and all of Flywheel Software’s defenses in this action are

9 dismissed with prejudice.
10

4.

No party may appeal the Judgment. The parties have knowingly, intentionally,

11 willingly, and explicitly waived their right to appeal this Judgment.
12

5.

This Court retains jurisdiction to enforce the terms of this Order and resulting

13 Judgment.
14 IT IS SO ORDERED.
October 5
15 Dated: ___________________, 2017

16
17
18
19

THE HONORABLE SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE

20
21

22
23
24
25
26
27
28
-4-

Case No. 3:16-CV-02560-SI
STIPULATION AND PROPOSED ORDER FOR ENTRY OF JUDGMENT

1
2
3
4
5
6
7

SINGER / BEA LLP
Benjamin L. Singer (Bar. No. 264295)
[e-mail]
Walter C. Pfeffer (Bar No. 289421)
[e-mail]
Katie K. Erno (Bar No. 264748)
[e-mail]
601 Montgomery Street, Suite 1950
San Francisco, CA 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiff
Creative Mobile Technologies, LLC

8
9
10
11
12

STEVEN H. WINICK (SBN 160815)
[e-mail]
BRIAN R. BLACKMAN (SBN 196996)
[e-mail]
BLAXTER | BLACKMAN LLP
475 Sansome Street, Suite 1850
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]

13
14

Attorneys for Defendant
Flywheel Software, Inc.

15
16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
20

CREATIVE MOBILE TECHNOLOGIES, LLC,

21

CASE NO. 16-cv-02560-SI

Plaintiff,
v.

JUDGMENT

FLYWHEEL SOFTWARE, INC.,

Courtroom: 1, 17th Floor
Hon. Susan Illston

22
23
Defendant.
24
25
26
27
28

JUDGMENT
CASE NO. 16-CV-02560-SI

JUDGMENT

1
2

JUDGMENT IS HEREBY ENTRED as follows:

3

1.

This Court has jurisdiction over the subject matter and parties in this action.

4

2.

Plaintiff Creative Mobile Technologies, LLC (“CMT”) is awarded damages in the

5
6

amount of $190,000 against defendant Flywheel Software, Inc. (“Flywheel”).
3.

As of May 5, 2017, Flywheel and any current or future parent corporation, subsidiary,

7

affiliate, subsidiary, affiliate, officer, director, employee, and other person acting under its control or

8

in concert therewith are permanently restrained and enjoined from processing, directly or otherwise,

9

electronic passenger payments in vehicles equipped with CMT payment systems.

10

4.

This Court retains jurisdiction to enforce the terms of this Judgment.

11
12
13

October 5
Dated: _______________, 2017

By: _________________________________
Hon. Susan Illston
United States District Judge

14

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-1-

JUDGMENT
CASE NO. 16-CV-02560-SI

1

ATTESTATION

2

I, Benjamin L. Singer, attest that concurrence in this Stipulation for Order for Entry of

3

Consent Judgment has been obtained from any signatories indicated by a “conformed” signature (/s/)

4

within this e-filed document in compliance with Civil Local Rule 5-1(i)(3). I declare under penalty

5

of perjury that the foregoing is true and correct.

6
7

8
9
10

Dated:

, 2017

SINGER / BEA LLP
By: /s/ Benjamin L. Singer
Benjamin L. Singer
Katie K. Erno
Walter C. Pfeffer
Attorneys for Creative Mobile Technologies, LLC

11
12
13
14

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

JUDGMENT
CASE NO. 16-CV-02560-SI