Romeo & Juliette Laser Hair Removal, Inc. v. Assara I LLC et al
Filing
329
MEMORANDUM OPINION & ORDER......The May 20, 2016 motion to stay the May 20, 2016 Judgment pending appeal is denied. (Signed by Judge Denise L. Cote on 5/24/2016) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------ROMEO & JULIETTE LASER HAIR REMOVAL,
INC. d/b/a ROMEO & JULIETTE HAIR
REMOVAL,
X
:
:
:
:
Plaintiff,
:
:
-v:
:
ASSARA I LLC, d/b/a ASSARA LASER
:
CENTER NYC, ASSARA LASER and MANHATTAN :
LASER HAIR REMOVAL, JAY SHUMAN a/k/a
:
JEROME SHUMAN, WILL SHUMAN, DR. SAM
:
TAYER, and DAVID TAYER,
:
:
Defendants.
:
:
-------------------------------------- X
08cv0442(DLC)
MEMORANDUM OPINION
& ORDER
DENISE COTE, District Judge:
On May 20, 2016, a Judgment was entered against defendants
Will Shuman and Assara I LLC (“Assara”) in the amount of
$39,080.11.
The Judgment includes $6,945 in attorney’s fees
awarded by Magistrate Judge Frank Maas on July 2, 2013 in
connection with a 2012 discovery dispute, Romeo & Juliette Laser
Hair Removal, Inc. v. Assara I, LLC, No. 08cv442, 2013 WL
3322249 (S.D.N.Y. July 2, 2013) (the “July 2013 Order”), $30,000
in attorney’s fees awarded by this Court on April 5, 2016, Romeo
& Juliette Laser Hair Removal, Inc. v. Assara I LLC, No.
08cv0442 (DLC), 2016 WL 1328936 (S.D.N.Y. Apr. 5, 2016), and
prejudgment interest.
On May 20, the defendants filed a motion
to stay the monetary portions of the Judgment against them
pending appeal.1
The defendants also raise an objection to the Judgment.
The defendants claim that the $6,945 awarded is improper as they
had timely objected to Judge Maas’s July 2013 Order and have not
received a ruling on their objections.
In a documented dated
July 16, 2013, the defendants did indeed make objections to the
July 2013 Order.2
July 31.
The plaintiff responded to the objections on
On March 20, 2014, the plaintiffs filed a letter to
Judge Maas requesting that judgment be entered against the
defendants in the amount of $6,945 plus interest.
The
defendants responded on April 4, claiming that the district
judge then presiding over this case had ruled that he had no
jurisdiction to enter the July 2013 Order.
documentation of such a ruling.
defendants’ letter on April 9.
There is no
The plaintiff responded to the
On April 11, Judge Maas denied
the plaintiff’s request for a pretrial judgment.
This case was transferred to this Court on January 14,
2016.
Since the transfer, both parties discussed Judge Maas’s
$6,945 fee award during the briefing of the plaintiff’s February
The defendants do not seek to stay the permanent injunction
issued against them.
1
The objections were not properly filed on the docket until July
23.
2
2
5, 2016 motion for attorney’s fees.
No party raised the
pendency of the defendants’ objections to the July 2013 Order
until now.
In determining whether to issue a stay of a judgment
pending appeal, a court must consider the following factors:
(1) whether the stay applicant has made a strong
showing that he 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.
U.S. S.E.C. v. Citigroup Glob. Markets Inc., 673 F.3d 158, 162
(2d Cir. 2012) (citation omitted).
These factors operate as a
“sliding scale” where “[t]he necessary ‘level’ or ‘degree’ of
possibility of success will vary according to the court's
assessment of the other stay factors . . . [and] [t]he
probability of success that must be demonstrated is inversely
proportional to the amount of irreparable injury plaintiff will
suffer absent the stay.”
Thapa v. Gonzales, 460 F.3d 323, 334
(2d Cir. 2006) (citation omitted).
A stay is an “intrusion into
the ordinary processes of administration and judicial review,
and accordingly is not a matter of right.”
Nken v. Holder, 556
U.S. 418, 427 (2009) (citation omitted); see also
MaldonadoPadilla v. Holder, 651 F.3d 325, 327–28 (2d Cir. 2011)
(quoting Nken, 556 U.S. at 427).
3
The defendants have not provided sufficient cause to stay
the Judgment.
There is no strong showing that the defendants
will succeed on the merits of their appeal.
stay of the injunction.
They do not seek a
Their claim that there is “a
substantial question as to whether the injunctive relief . . .
is an impermissible prior restraint on commercial speech” is
newly raised.
The remaining, brief argument they make regarding
the injunction was rejected for the reasons explained in the
Opinion of February 29, 2016.
The defendants do not suggest any
ground for a reversal of the award of $30,000, plus pre-judgment
interest on that amount.
The defendants’ principal argument for a reversal on the
merits relates to the failure of the district judge presiding
over this litigation in 2013 to address the objections to Judge
Maas’s award in 2013 of $6,945 in attorney’s fees.
As the
Judgment has already been entered and an appeal filed, this
Court lacks jurisdiction to provide a ruling on the defendants’
objections to the July 2013 Order.
Should such jurisdiction
exist, this Court would deny the objections to Judge Maas’s
well-reasoned decision.
The defendants argued that the fee
award was unjust based on the plaintiff’s improper conduct.
This argument was addressed and properly rejected in the July
2013 Order, which noted that the defendants “failed to identify
any ‘culpable’ or ‘improper’ conduct [by the plaintiff] that
4
would warrant disallowing Romeo an award of its reasonable
fees.”
July 2013 Order, 2013 WL 3322249, at *4.
The defendants
also argue that Judge Maas improperly considered certain
categories of fees requested by the plaintiff.
None of the fees
discussed are outside the type of attorney’s fees normally
considered by a judge when making an award for sanctionable
conduct.
Finally, Judge Maas properly rejected the argument
that the defendants’ actions were “justified.”
Id.
There being no strong showing of a likelihood of success on
appeal, the remaining factors related to a stay may be briefly
addressed.
Staying the Judgment will substantially injure the
plaintiff, who has incurred significant costs over the course of
this long litigation.
While the defendants claim that they will
suffer financial hardship as a result of the Judgment, they
present no evidence that they will be irreparably injured absent
a stay.
Moreover, there is a strong public interest in
enforcing judgments arising from meritorious unfair competition
claims.
5
CONCLUSION
The May 20, 2016 motion to stay the May 20, 2016 Judgment
pending appeal is denied.
SO ORDERED:
Dated:
New York, New York
May 24, 2016
__________________________________
DENISE COTE
United States District Judge
6
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