Wachovia Bank, N.A. v. Zomax, Incorporated et al

Filing 22

NUNC PRO TUNC AGREED ORDER. Signed by Judge Algenon L. Marbley on 03/05/2009. (cw, )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION WACHOVIA BANK, N.A., Plaintiff, vs. ZOMAX, INCORPORATED, et al. Defendants. ) ) ) ) ) ) ) ) ) Civil Action No. 2:09-CV-0076 Judge Marbley Magistrate Judge Kemp

AGREED ORDER This matter comes before the Court on Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction pursuant to 28 U.S.C. § 2361 and 28 U.S.C. § 1335, the federal interpleader statute (Doc. 4), on the preliminary informal conference on Plaintiff's Motion held on February 2, 2009, pursuant to S.D. Ohio Civ. R. 65.1(a), and on the agreement of Plaintiff and Defendants as to the terms of this Agreed Order of Injunction. The Court, being fully advised in this matter, finds that (1) an injunction, enjoining the state court garnishment actions related to the Zomax Funds in the Ohio Court of Common Pleas, Franklin County, Case No. 08-JG-28501 and in the North Carolina General Court of Justice, Superior Division for Forsyth County, Case No. 08 CVS 7328, is necessary to prevent inconsistent rulings concerning the rightful disposition of the Zomax Funds; (2) an injunction preventing all Defendants from instituting, commencing, prosecuting, or continuing any action or garnishment proceeding related to the Zomax Funds is necessary for the same reason; (3) the injunction will be effective until the conclusion of this

interpleader case, at which time the Court will decide whether the injunction is permanent; and (4) all parties agree that this injunction is necessary.1 It is therefore ORDERED, that, effective immediately: (1) All Defendants are hereby restrained from instituting, commencing, prosecuting, or continuing any other action or garnishment proceeding for the recovery of all or any portion of any funds which Wachovia has deposited with the Court in this action ("Funds") or any form of declaratory relief relating to the Funds until further order of the Court; provided, that this Order shall not be construed to limit in any way the right of any Defendant to assert in this action any claim which it might otherwise properly assert herein. Defendants are permitted to take such action as necessary to preserve their interests that they possess at the time of this Order. (2) The garnishment action in the Ohio Court of Common Pleas, Franklin County, Case No. 08-JG-28501, relating to the Funds and the garnishment action in the North Carolina General Court of Justice, Superior Division for Forsyth County, Case No. 08 CVS 7328, relating to the Funds are hereby permanently enjoined and stayed until further order of this Court. (3) The injunction is effective until the conclusion of this interpleader case, at which time the Court will decide whether the injunction is permanent. IT IS SO ORDERED. s/Algenon L. Marbley ALGENON L. MARBLEY United States District Court Judge Date: March 5, 2009

As stated in the Order issued by the Court on February 2, 2009, (Doc. 5), "as Federal Rule of Civil Procedure 65 does not apply to requests for injunctive relief under 28 U.S.C. § 2361, Plaintiff can obtain injunctive relief without satisfying the elements required by that rule." (Doc. 5, p. 4, n. 4) (citing Thrivent Fin. for Luterhans v. Thompson, No. 3:04-cv-327, 2005 WL 2290312, at *3 (S.D. Ohio Sept. 20, 2005)). Therefore, issuance of this preliminary and permanent injunction order is proper even if Plaintiff could not demonstrate irreparable injury.

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AGREED: s/ Rebecca B. Jacobs Rebecca B. Jacobs (0068467) Trial Attorney Christine E. Watchorn (0075919) ULMER & BERNE LLP 88 East Broad Street, Suite 1600 Columbus, Ohio 43215 [phone] Fax: [phone] [e-mail] [e-mail] Attorneys for Plaintiff Wachovia Bank, N.A. /s Elizabeth T. Smith by /s Rebecca Jacobs per e-mail authority Elizabeth T. Smith (0012075) Trial Attorney Brenda K. Bowers (0046799) Vorys, Sater, Seymour and Pease, LLP 52 E. Gay Street Columbus, Ohio 43215 [phone] [phone] (fax) [e-mail] [e-mail] Attorneys for Defendants Willow Lake Property, LLC, JES Willow Lake, LLC, Willow Lake Tenn, LLC, MSP Willow Lake, LLC, RES Willow Lake, LLC /s Michael S. Kolman by /s Rebecca Jacobs per e-mail authority Michael S. Kolman (0031420) Newhouse, Prophater, Letcher & Moots, LLC 5025 Arlington Centre Boulevard, Suite 400 Columbus, OH 43220 [phone] [phone] (facsimile) [e-mail] Eric P. Handler 1058 W. Fourth Street, Suite A Winston-Salem, NC 27101 [phone] [e-mail] Attorneys for Capital City Consulting, Inc. /s Todd Neuman by /s Rebecca Jacobs per e-mail authority 3

Todd Neuman (0059819) Allen Kuehnle Stovall & Neuman LLP 21 West Broad Street, Suite 400 Columbus, OH 43215-4100 [phone] Fax: [phone] Email: [e-mail] Attorney for ComVest Inomax Holdings, LLC s/ James Hopple by /s Rebecca Jacobs per e-mail authority E. James Hopple (0019298) Schottenstein Zox & Dunn Co., LPA 250 West Street Columbus, OH 43215 [phone] Fax: [phone] Email: [e-mail]

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