Frost-Tsuji Architects v. Highway Inn, Inc. et al

Filing 511

ORDER Granting Motion To Enforce Stipulation. "The court granted summary judgment in favor of Defendants and awarded Defendants approximately $450,000 in attorneys fees and costs. The court grants Highway Inn's 506 motion se eking disbursement of funds and J. Kadowaki's 508 joinder therein. Defendants are ordered to submit a proposed order that details the amounts to be withdrawn from the accounts at Morgan Stanley Bank and disbursed to each Defendant. Counsel for Frost-Tsuji, Randall K. Schmitt, is ordered to sign all documents necessary for the prompt withdrawal and disbursement of such funds. Highway Inn's request for attorneys' fees and costs incurred in bringing the present motion is denied.&qu ot; Signed by JUDGE SUSAN OKI MOLLWAY on 1/3/18. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FROST-TSUJI ARCHITECTS,

)
)
Plaintiff,
)
)
vs.
)
)
HIGHWAY INN, INC.; HO`OLA
)
MAU, LLC; BRYCE UYEHARA,
)
A.I.A., INCORPORATED; J.
)
KADOWAKI, INC.; FESTIVAL
)
MANAGEMENT CORPORATION; et
)
al,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 13-00496 SOM/BMK
ORDER GRANTING MOTION TO
ENFORCE STIPULATION

ORDER GRANTING MOTION TO ENFORCE STIPULATION
I.

INTRODUCTION.
This is a copyright infringement case involving more

litigation than justified by the initial amount in controversy.
Plaintiff Frost-Tsuji Architects claimed that Defendants Highway
Inn, Inc., and Ho`ola Mau, LLC (collectively, “Highway Inn”), had
failed to pay approximately $39,000 owed on an architectural
contract.

Frost-Tsuji asserted a copyright infringement claim

arising out of Defendants’ alleged use of Frost-Tsuji’s
architectural drawings.

Frost-Tsuji also claimed that Defendants

had removed its copyright management information from its
architectural drawings.

The court granted summary judgment in

favor of Defendants and awarded Defendants approximately $450,000
in attorneys’ fees and costs.

The parties entered into a stipulation pursuant to
which this court ordered Defendants to refrain from collection of
the award of fees and costs from Frost-Tsuji in return for FrostTsuji’s deposit of $230,000 and $229,530.56 into two interestbearing accounts with Morgan Stanley Bank.

Disbursement of the

funds was delayed pending the exhaustion of the Ninth Circuit
appeals and entry of final judgment with respect to those
appeals.
Defendants now seek disbursement of the funds held by
Morgan Stanley Bank.

Frost-Tsuji opposes the disbursement,

arguing that it still has a right to seek a writ of certiorari
from the United States Supreme Court.

The court is unpersuaded

by Frost-Tsuji’s argument and orders the disbursement of the
funds.
II.

BACKGROUND.
On April 15, 2015, this court entered Judgment in favor

of Defendants and against Frost-Tsuji.
Tsuji appealed.

See ECF No. 412.

Frost-

See ECF No. 417 (Ninth Cir. No. 15-15802).

On March 30, 2016, this court awarded fees and costs to
Defendants as follows:
Bargreen Ellingson is awarded $23,678.00 in
attorney’s fees and $355.97 in costs, for a
total award of $24,033.97; J. Kadowaki is
awarded $135,004.70 in attorney’s fees and
$4,827.30 in costs, for a total award of
$139,832.00; Highway Inn and Ho‘ola Mau are
awarded $209,660.64 in attorney’s fees and
$4,914.33 in costs, for a total award of
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$214,574.97; and Highway Inn, on behalf of
Bryce Uyehara and Iwamoto and Associates, is
awarded $68,885.31 in attorney’s fees and
$1,204.31 in costs, for a total award of
$70,089.62.
ECF No. 472, PageID # 9614.
fees and costs.

Frost-Tsuji appealed this award of

See ECF No. 473 (Ninth Circuit No. 16-15562).

On April 29, 2016, Defendant J. Kadowaki, Inc., filed a
cross-appeal regarding this court’s award of fees and costs.
ECF No. 477 (Ninth Cir. No. 16-15799).

See

That same day, Highway

Inn also filed a cross-appeal from this court’s award of fees and
costs.

See ECF No. 478 (Ninth Circuit No. 16-15802).
On January 6, 2017, the parties stipulated to, and this

court ordered, a stay of all enforcement and collection actions
with respect to this court’s award of fees and costs.
No. 497, PageID # 9905.

See ECF

The stipulation and order provided that,

in return for a stay of enforcement and collection actions with
respect to this court’s award of fees and costs, Frost-Tsuji
would deposit with Morgan Stanley Bank $230,000 and $229,530.56
in interest-bearing accounts.

Id.

The stipulation and order

further provided that, “upon the exhaustion of the appeals
identified as United States Court of Appeals, Ninth Circuit
Docket Nos: 16-15562, 16-15799, and 16-15802,” the funds
deposited with Morgan Stanley Bank:
may be disbursed upon final judgment of the
above appeals [, Ninth Circuit Numbers 1615562, 16-15799, and 16-15802], by:
(1) voluntary stipulation of all parties
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hereto and order of the Court, (2) direction
of the Court upon a further status conference
or sua sponte, (3) by Court order upon a
motion by any party or (4) by other order of
the Court.
ECF No. 497, PageID # 9907.
On October 26, 2017, the Ninth Circuit affirmed this
court’s judgment and award of fees and costs in a memorandum
opinion, citing the reasons set forth in this court’s orders.
See ECF No. 499.

According to the Ninth Circuit docket, judgment

was filed and entered that same day.

See, e.g., Ninth Cir. No.

16-15802, Dkt. No. 70; see also id., Dkt. No. 77 (“On the docket,
the October 26, 2017 entry documenting the filing of the
disposition prominently states: ‘FILED AND ENTERED JUDGMENT.’

In

addition, the first sentence of the informational sheet attached
to the disposition reads: ‘This Court has filed and entered the
attached judgment in your case.’”).
On November 27, 2017, Frost-Tsuji asked the Ninth
Circuit to stay the issuance of its mandate, arguing that it
still had the opportunity to seek certiorari with respect to the
Ninth Circuit memorandum disposition.
15802, Dkt. No. 75.
2017.

See Ninth Cir. No. 16-

That request was denied on November 30,

See id., Dkt. No. 77.
On December 8, 2017, the Ninth Circuit issued the

mandates with respect to the appeals.

See ECF Nos. 504 and 505.

With respect to Ninth Circuit Numbers 16-15562, 16-15799, and 16-

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15802, the Mandate stated, “The judgment of this Court, entered
October 26, 2017, takes effect this date.”

See ECF No. 505,

PageID # 9932.
On December 12, 2017, Highway Inn and Ho`ola Mau filed
the present Motion to Enforce Stipulation and Order filed
01/06/17 [DKT. 497], requesting disbursement of the funds held by
Morgan Stanley and fees and costs for bringing the motion.
ECF No. 506.

See

On December 28, 2017, Defendant J. Kadowaki joined

in the motion.

See ECF No. 508.

On December 29, 2017, Frost-Tsuji filed an opposition
memorandum.

Frost-Tsuji’s sole argument is that it has until

January 24, 2018, to file a petition seeking a writ of certiorari
from the United States Supreme Court.

See ECF No. 509.

Frost-

Tsuji does not argue that, when it entered into the stipulation,
it contemplated that the Morgan Stanley funds would not be
disbursed while Frost-Tsuji was seeking a writ of certiorari or
the Supreme Court was considering how to rule on such a request.
III.

ANALYSIS.
Whether this court should order the disbursement of the

funds held by Morgan Stanley Bank turns on the plain language of
the January 6, 2017, stipulation and order, which allows the
disbursement of the funds “[u]pon the exhaustion of the appeals
identified as United States Court of Appeals, Ninth Circuit
Docket Nos: 16-15562, 16-15799, and 16-15802” and “final judgment

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of the above appeals.”

See ECF No. 497, PageID # 9907.

This

court is unpersuaded by Frost-Tsuji’s argument that it intends to
seek a writ of certiorari from the United States Supreme Court.
The parties to the stipulation and order were represented by
experienced attorneys who could have easily added language to the
stipulation that referred to the possible seeking of a writ of
certiorari from the United States Supreme Court.
is notably absent from the stipulation and order.

That language
Instead, the

stipulation and order refer only to the exhaustion of the three
Ninth Circuit appeals, not to any possible writ of certiorari.
Moreover, the Ninth Circuit has rejected Frost-Tsuji’s
request to stay the entry of the mandates pending a possible
certiorari petition.

In returning jurisdiction to this court,

the Ninth Circuit gave no hint that it expected this court to
abstain from entering orders consistent with the Ninth Circuit’s
ruling.

Given the Ninth Circuit’s entry of judgment with respect

to the three appeals, this court deems those appeals to be
“exhausted” and orders the disbursement of the funds held by
Morgan Stanley Bank.
The court notes that Frost-Tsuji’s sparse opposition to
the motion seeking disbursement of the funds does not argue that
the language of the stipulation and order is ambiguous.

In fact,

it does not even contend that Frost-Tsuji thought the funds would
not be disbursed pending disposition of a request for a writ of
certiorari.
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IV.

CONCLUSION.
The court grants Highway Inn’s motion seeking

disbursement of funds and J. Kadowaki’s joinder therein.
Defendants are ordered to submit a proposed order that details
the amounts to be withdrawn from the accounts at Morgan Stanley
Bank and disbursed to each Defendant.

Counsel for Frost-Tsuji,

Randall K. Schmitt, is ordered to sign all documents necessary
for the prompt withdrawal and disbursement of such funds.
Highway Inn’s request for attorneys’ fees and costs
incurred in bringing the present motion is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 3, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Frost-Tsuji Architects v. Highway Inn, Inc., et al., Civ. No. 13-00496 SOM/BMK; ORDER
GRANTING MOTION TO ENFORCE STIPULATION

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