Heartland Animal Clinic, P.A. v. Heartland SPCA Animal Medical Center, LLC et al

Filing 57

MEMORANDUM AND ORDER denying 54 defendants' Motion for Stay of Execution. Signed by District Judge J. Thomas Marten on 3/30/2012. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HEARTLAND ANIMAL CLINIC, P.A.,
Plaintiff,

vs.

Case No. 11-2629-JTM

HEARTLAND SPCA ANIMAL MEDICAL
CLINIC, LLC, et al.,
Defendants.

MEMORANDUM AND ORDER

Pursuant to Fed.R.App.Pr. 8(a), the defendants seek a stay of the injunction issued by the
court on March 16, 2012 prohibiting their use of the “Heartland” mark in connection with the
provision of veterinary services in the Kansas City area. Rule 8(a) requires that a party seeking a
stay of enforcement of a judgment or order must seek initial relief from the district court.
In considering a motion for relief under Appellate Rule 8(a), the court considers four factors:
“(1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay is not granted;
(3) the absence of harm to the opposing party if the stay is granted; and (4) the harm to the public
interest..” United States v. Wittig, No. 03-40142, 2005 WL 1384666, at *2 (D. Kan. June 7, 2005)
(citing 10th Cir. R. 8.1). “In essence,” the movant must show “that the injury it would sustain if the
stay did not issue outweighs the harm the stay would cause the party opposing the stay.” In re Yellow
Cab Coop. Ass'n, 192 B.R. 555, 557 (D.Colo.1996) (citing Autoskill Inc. v. Nat'l Educ. Support Sys.,

994 F.2d 1476, 1498 (10th Cir.1993)). See generally Hilton v. Braunskill, 481 U.S. 770, 776 (1987)
(discussing factors for issuance of a stay under Rule 8(a)).
The defendants’ arguments are familiar, both because the standard for relief underlying
Appellate Rule 8(a) is similar to that for injunctive relief in the first instance,1 and because the
arguments themselves are simply restatements of the arguments previously advanced in opposition
to the plaintiff’s motion for injunctive relief. Indeed, the defendants’ argument that they possess
“serious and substantial issues that warrant appellate review,” (Dkt. 55, at 5-11) is merely a
summary of their earlier Response brief (Dkt. 36, at 4-29), and provides no additional argument of
substance.
As stated by the court at the conclusion of March 16, 2012 hearing (Dkt. 47, 53), and as
further discussed in the subsequent Memorandum and Order (Dkt. 48), the plaintiff has made a
strong showing that it owns a protectable mark, and that the defendant has infringed the mark,
thereby creating a likelihood of confusion as to the identity or source of “Heartland” veterinary
services in the relevant market. The plaintiff has been injured by the appropriation of its mark, the
loss of services necessitated by having to use its employees to deal with the deluge of customers
confused by the overlapping brand, and the loss of goodwill occasioned by customers angry with
the quality of care delivered by the defendants’ veterinary services. Any injury to defendants is
ultimately the product of their own actions. The interest of the public is advanced by removing

1

See, e.g., Andreiu v. Ashcroft, 253 F.3d 477, 487 (9th Cir. 2001) (“courts have long
reviewed motions for a stay under the same equitable standard as motions for a preliminary
injunction”); Michigan Coalition of Radioactive Material Users v. Griepentrog, 945 F.2d 150,
153 (6th Cir.1991) (“under Fed. R. [App]. P. 8(a), we consider the same four factors that are
traditionally considered in evaluating the granting of a preliminary injunction”); Hodges v.
Brown, 500 F.Supp. 25 (D.C.Pa. 1980) (“[w]e must examine the same considerations to grant or
deny a motion for an injunction pending appeal as we would for the issuance of a preliminary
injunction”).

consumer confusion.
The only new argument made by defendants is simply that the court’s decision to stay the
effective date of the injunction was too short: “Thirty days, now reduced to 18, is inadequate time
for Defendants to effectively comply with the Order and not increase the risk of losing constituent
support or of increasing consumer confusion.” (Dkt. 55, at 13).
The defendants offer no justification for allowing almost half of the stay to elapse before
filing a motion which merely repackages their earlier, rejected arguments. Nor have they made any
factual showing that, notwithstanding their substantial marketing resources, they could not comply
with the 30-day deadline by acting in a timely and effective manner to mitigate the injury to both
plaintiff and the defendant. The court granted a stay of the injunction for thirty days at the hearing,
deeming this under the facts of the case the outer limit for permissible compliance with its Order
while also avoiding substantial disruption to the parties. (Dkt. 53, at 185). Defendants advanced no
contemporaneous objection to this decision, and the court in its discretion finds no basis for granting
the relief sought.
IT IS ACCORDINGLY ORDERED this 30th day of March, 2012, that the defendants’
Motion for Stay of Execution (Dkt. 54) is hereby denied.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE