DWS International, Inc dba Marble Dimensions Worldwide, Inc v. Meixia Arts and Handicrafts Co LTD et al

Filing 354

ENTRY AND ORDER denying 348 MDW's Renewed Motion for Order to Aid in Execution. Signed by Judge Thomas M Rose on 7/22/2013. (kf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DWS INTERNATIONAL, INC.,
dba MARBLE DIMENSIONS
WORLDWIDE, INC.,
Case No. C-3:09-cv-458
Plaintiff,
Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vMEIXIA ARTS AND HANDICRAFTS,
CO., LTD., et al.,

Defendants.
______________________________________________________________________________
ENTRY AND ORDER DENYING MDW’S RENEWED MOTION FOR
ORDER TO AID IN EXECUTION (Doc. #348)
______________________________________________________________________________
Now before the Court is a Renewed Motion for Order To Aid In Execution of Judgment
Against Meixia Arts and Handicrafts Co. Ltd. (“Meixia”) filed by DWS International, Inc. d/b/a
Marble Dimensions Worldwide (“MDW”). (Doc. #348.) Therein MDW again asks this Court to
order Meixia to pay MDW $20,000 immediately and $100,000 within two (2) days of receiving
funds from Yotrio Group Co. Ltd. (“Yotrio”).
After MDW filed this Motion, Defendant Meixia Arts and Handicrafts (“Meixia”) has
retained counsel who opposes MDW’s Motion. The Motion is now fully briefed and ripe for
decision.
This Court has previously entered default judgment against Meixia and found that Meixia
was jointly and severally liable with Home Casual for $1,500,000 in compensatory damages.
(Doc. #342.) MDW’s claims against Co-Defendant Home Casual have been dismissed pursuant
to a settlement agreement (the “Settlement Agreement”) between MDW and Co-Defendant

Home Casual. (Doc. #345.)
The Settlement Agreement was between MDW and Co-Defendant Home Casual, Mr.
Donald Corning and Mr. Peter Knudsen. (Plt. Mot. for Order To Aid In Execution, Ex. 2.) It was
entered into as of October 13, 2011.
In the Settlement Agreement, Co-Defendant Home Casual agrees to pay MDW $100,000
on or before October 13, 2011, and $2,050,000 pursuant to a promissory note attached to the
Settlement Agreement. This totals $2,150,000.
The Parties to the Settlement Agreement agree that this payment is to resolve certain
specified claims between them, and that a final judgment entry would be submitted to the Court.
This final judgment entry was to acknowledge those claims, including an initial judgment award
of $1,750,000 and an additional judgment of attorneys’ fees in the amount of $1,850,000. That
total final judgment to be acknowledged was thus $3,600,000 against Co-Defendant Home
Casual.
On October 18, 2011, this Court entered the Agreed Final Judgment Entry. (Doc. #341.)
This Agreed Final Judgment Entry refers to the claims included in the earlier Judgment Entry
wherein the Court ordered that MDW would recover from Co-Defendant Home Casual the total
amount of $1,750,000 plus attorneys’ fees, post-judgment interest and costs. (Doc. #281.)
Finally, on December 3, 2012, the Court dismissed with prejudice any and all claims between
MDW and Co-Defendant Home Casual pursuant to the Settlement Agreement. (Doc. #345.)
On October 26, 2011, the Court entered default judgment against Meixia in the amount of
$1,500,000 in compensatory damages plus post-judgment interest and costs. (Doc. #342.) The
Court also found that Meixia was jointly and severally liable with Co-Defendant Home Casual

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for the compensatory damages. (Id.)
MDW argues that it has unsuccessfully attempted to execute its judgment against Meixia
since October 26, 2011. Thus far, according to MDW’s argument, collection efforts have only
yielded one payment of $60,000 from one of Meixia’s customers. During the time that MDW has
been trying to collect from Meixia, specifically in January of 2012, Meixia sold its GRC
processing system to a company called Yotrio for $1,600,000. (Deposition of Bill Job (“Job
Dep.”) 21, 42 Mar. 28, 2013.) Yotrio paid Meixia the first two payments for the GRC processing
system of $900,000 and $600,000 but still owed the last payment of $100,000 at the time of Bill
Job’s deposition. (Id. at 47.) Meixia used this money to pay off loans and to pay other creditors.
(Id. at 48, 71-72.) At the time of Bill Job’s deposition, Meixia had $20,000 in the bank and was
owed $100,000 from Yotrio. (Id. at 47, 58.)
On May 30, 2013, MDW filed a Motion for Order To Aid In Execution of Judgment
Against Meixia. (Doc. #348.) This Court overruled this Motion without prejudice to refiling
because the Court was not aware of how much of the $1,500,000 joint and severable liability had
been satisfied by Co-Defendant Home Casual. (Doc. #347.) MDW has now renewed its Motion
for Order To Aid In Execution, and this Motion is fully briefed and ripe for decision.
ANALYSIS
A federal court has “inherent power to enforce its judgment.” Virgo v. Riviera Beach
Associates LTD, 20 F. App’x 348, 350 (6th Cir. 2001)(quoting Peacock v. Thomas, 516 U.S.
349, 356 (1996)). Therefore, supplementary proceedings, such as this one, are used to enforce
the judgments of federal courts. Id. at 351.
MDW first argues that it is entitled to a $120,000 payment from Meixia because MDW’s

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settlement with Home Casual left $1,450,000 of MDW’s judgment against Home Casual unpaid.
In support, MDW argues that Home Casual paid MDW $2,150,000 of MDW’s $3,600,000
judgment against Home Casual leaving the difference unpaid. However, this argument is
unavailing.
It is unavailing because the Settlement Agreement between MDW and Home Casual does
not allocate the amount Home Casual paid to MDW between compensatory damages, punitive
damages, attorneys’ fees and interest. Thus, the Court cannot determine how much of the
$1,500,000 judgment against Meixia, which Co-Defendants Meixia and Home Casual were
jointly liable for, was paid by Home Casual.
MDW next argues that, even if Co-Defendant Home Casual had paid the entire joint and
several judgment of $1,500,000 to MDW, Meixia has no right of contribution from MDW’s
settlement with Co-Defendant Home Casual because Meixia committed an intentional tort and
Ohio does not provide for a right of contribution for intentional tortfeasors. This argument, too,
is unavailing.
A right of contribution is a right that may be exercised between joint and severally liable
tortfeasors. Ohio Rev. Code § 2307.25. However, this action is not between two joint and
severally liable tortfeasors. It is between a plaintiff and one of two joint and severally liable
tortfeasors. In other words, the Ohio Revised Code provides that Co-Defendant Home Casual
may have a right of contribution from Meixia but it does not provide that Plaintiff MDW has a
right of contribution from Meixia. If Co-Defendant Home Casual wants to attempt to exercise its
right of contribution from Meixia, it may do so, but MDW may not exercise Co-Defendant
Home Casual’s right to contribution.

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MDW cites Eysoldt v. Proscan Imaging, N. C-110138, 2011 WL 6885346 (Ohio Ct.
App. Dec. 28, 2011) in support of this argument. In Eysoldt, the plaintiffs filed a lawsuit against
GoDaddy.com and other defendants. The other defendants settled before trial, and the jury found
against GoDaddy on all of plaintiffs’ claims. After trial, GoDaddy sought partial satisfaction of
judgment based upon what the other defendants had already paid to settle because the other
defendants were jointly and severally liable. The Ohio Appeals Court found that GoDaddy was
not entitled to set-off the amounts paid by the other tortfeasors. However, this case is not
persuasive here because, here the Court is considering a request by the plaintiff and not by one of
the jointly and severally liable tortfeasors.
The Eysoldt court also found that, “when a plaintiff recovers from or settles with another
tortfeasor and subsequently obtains a judgment against an intentional tortfeasor for the same
injury, the plaintiff may recover more than the amount required to make the plaintiff whole
because the intentional tortfeasor is not entitled to any reduction in the award against him,
regardless of the amount of the previous judgment or settlement.” Eysoldt. 2011 WL 6885346 at
*2. Applying the Eyesoldt court’s determination to this case, the Court could conclude that
Meixia is not entitled to any reduction in the award against it. However, the Eysoldt court was
addressing the liability of GoDaddy, a tortfeasor and not the liability of joint and severally liable
tortfeasors. In this case, there are joint and severally liable tortfeasors, so Eysoldt is
distinguishable from this case.1
Meixia argues that Ohio Rev. Code § 2307.28(A) applies to this matter instead of Ohio

1

MDW also cites Garrett v. Blum, No. CA 447, 1987 WL 14303 (Ohio Ct. App. Jul. 20,
1987) for the same proposition. However, Garrett is distinguishable for the same reason as
Eysoldt.
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Rev. Code § 2307.25. Ohio Rev. Code § 2307.28(A) provides that when a release is given to one
of two or more entities for the same loss, the release does not discharge any of the other
tortfeasors from all liability for contribution to any other tortfeasors unless the release’s terms
provide otherwise, but it reduces the claim against the other tortfeasors to the extent of the
greater of any amount stipulated by the release or the amount of the consideration paid for the
release. In addition, intentional tortfeasors cannot benefit from the provisions of Ohio Rev. Code
§ 2307.28(A) regarding any right of contribution from other intentional tortfeasors. Ohio Rev.
Code § 2307.25.
In this case, Meixia was found to be an intentional tortfeasor. Therefore, Meixia cannot
benefit from Ohio Rev. Code § 2307.28(A) regarding any right of contribution. Yet, as
determined above, this matter is not about a right of contribution as between tortfeasors. It is
about a plaintiff seeking damages from one of two joint and severally liable intentional
tortfeasors. Thus, neither Ohio Rev. Code §2307.25 nor § 2307.28 (A) are applicable.
Meixia cites Spalla v. Fransen, 936 N.E.2d 559 (Ohio Ct. App. 2010), for support of its
argument that MDW has been fully compensated for its claims. However, Spalla is
distinguishable because the Spalla court was addressing a breach-of-fiduciary-duty claim and not
an intentional tort.
CONCLUSION
The Court cannot determine how much of the $1,500,000 that Home Casual and Meixia
were jointly liable for, was paid by Home Casual. Further, the cases cited and arguments
presented by the Parties are in regard to the right of contribution between joint tortfeasors and
this matter does not involve an action brought by or between joint tortfeasors. Therefore, the

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Court cannot order Meixia to pay anything to MDW. MDW’s Renewed Motion for Order To
Aid In Execution of Judgment Against Meixia (doc. #348) is DENIED.
DONE and ORDERED in Dayton, Ohio, this Twenty-Second Day of July, 2013.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATED DISTRICT JUDGE
Copies furnished to:
Counsel of Record

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