Sumotext Corp. -v- Zoove, Inc., et al

Filing 547

ORDER DENYING 537 PLAINTIFF'S MOTION TO QUASH WRIT OF EXECUTION AND STAY ENFORCEMENT OF COSTS-ONLY JUDGMENT OR, IN THE ALTERNATIVE, TO PERMIT PLAINTIFF TO POST A SUPERSEDEAS BOND; AND VACATING HEARING ON MOTION. Signed by Judge Beth Labson Freeman on 11/18/2021. (blflc1, COURT STAFF) (Filed on 11/18/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SUMOTEXT CORP.,
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION TO QUASH WRIT OF
EXECUTION AND STAY
ENFORCEMENT OF COSTS-ONLY
JUDGMENT OR, IN THE
ALTERNATIVE, TO PERMIT
PLAINTIFF TO POST A
SUPERSEDEAS BOND; AND
VACATING HEARING ON MOTION

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[Re: ECF 537]

v.

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ZOOVE, INC., et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 16-cv-01370-BLF

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This order addresses what presumably will be the last motion filed in this protracted

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litigation. Following the jury’s defense verdict, this Court entered judgment for Defendants,

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ordering that “Plaintiff shall take nothing by its suit and Defendants shall recover from Plaintiff

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the costs of suit according to proof.” Judgment, ECF 471. The clerk taxed costs in the amount of

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$133,795.50 against Plaintiff Sumotext Corporation (“Sumotext”) and for Defendants Zoove, Inc.,

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Virtual Hold Technology, and VHT StarStar (collectively, “Zoove”).1 See Taxed Costs, ECF 529.

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On September 9, 2021, Zoove obtained a writ of execution on the costs-only judgment. See Writ

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of Exec., ECF 533.

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On October 14, 2021, Sumotext filed a motion to quash the writ of execution and stay

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enforcement of the costs-only judgment pending resolution of its then-pending appeal or,

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alternatively, to allow it to obtain a stay pending appeal by posting a supersedeas bond pursuant to

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Federal Rule of Civil Procedure 62(b). See Mot. to Quash, ECF 537. Before Zoove’s opposition

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The clerk separately taxed costs in the amount of $10,927.30 against Sumotext and for
Defendant StarSteve LLC. See Taxed Costs, ECF 528.

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brief was filed, however, the United States Court of Appeals for the Ninth Circuit (“Ninth

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Circuit”) issued a memorandum affirming the judgment. See Sumotext Corp. v. Zoove, Inc., No.

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20-17245, 2021 WL 4988024 (9th Cir. Oct. 27, 2021). Zoove filed an opposition brief the next

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day, arguing among other things that the motion is moot. See Opp., ECF 541. Sumotext filed a

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reply disputing Zoove’s characterization of its motion as moot, pointing out that the Ninth

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Circuit’s memorandum was not yet final because a petition for panel rehearing and/or a petition

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for rehearing en banc could be filed. See Reply, ECF 544. Sumotext filed a petition for panel

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rehearing on November 10, 2021, which was denied by the Ninth Circuit on November 12, 2021.

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See Ninth Cir. Order, ECF 545. Sumotext did not file a petition for rehearing en banc.

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In light of the Ninth Circuit’s affirmance of the judgment and denial of Sumotext’s petition

United States District Court
Northern District of California

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for panel rehearing, Sumotext’s current motion is moot. In its notice of motion, Sumotext states

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that it seeks an order quashing the writ of execution and staying enforcement proceedings

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“pending resolution of the appeal.” Mot. to Quash at 2, ECF 537. The appeal has been resolved.

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While the mandate has not yet issued, Federal Rule of Appellate Procedure 41 provides in relevant

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part that, unless a different time is set by the appellate court, “[t]he court’s mandate must issue 7

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days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying

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a timely petition for panel rehearing.” Fed. R. App. P. 41(b). As the mandate is expected to issue

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in a matter of days, this Court finds no reason to delay its ruling on Sumotext’s motion.

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Accordingly, Sumotext’s motion to quash the writ of execution and stay enforcement of

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the costs-only judgment pending appeal is DENIED AS MOOT. The hearing on the motion set

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for March 10, 2022 is VACATED.

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IT IS SO ORDERED.

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Dated: November 18, 2021
______________________________________
BETH LABSON FREEMAN
United States District Judge

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