Derma Pen v. 4EverYoung Limited et al

Filing 1143

MEMORANDUM DECISION AND ORDER denying without prejudice 1139 Motion to Enforce Permanent Injunction. Signed by Judge David Nuffer on 6/8/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DERMAPEN, LLC,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING
MOTION TO ENFORCE
PERMANENT INJUNCTION

v.
4EVERYOUNG LIMITED, DERMAPEN
Case No. 2:13-cv-00729-DN-EJF
WORLD, BIOSOFT, EQUIPMED
INTERNATIONAL, STENE MARSHALL, et District Judge David Nuffer
al.,
Defendants.

Plaintiff Dermapen, LLC filed its Ex Parte and Emergency Motion to Enforce Permanent
Injunction; Issuance of AO451 (“Motion”) 1 asking for “a Certification of Judgment on the
Injunction to allow Plaintiff to certify the Injunction in the United States District Court, District
of Nevada and other jurisdictions to which Defendants continue to act and prevent Defendants
from continuing to act in violation of this Court’s Permanent Injunction.” 2
The following facts are alleged in Plaintiff’s Motion. 3
2. On May [8], 2017, this Court issued its Final Order and Permanent Injunction
[(“Final Judgment”)] in favor of Plaintiff and against Defendants. (See Docket
No. 104[3]).
3. On June 7, 2017, Defendant Stene Marshall filed a Notice of Appeal with the
10th Circuit Court of Appeals appealing the [Final Judgment]. (See Docket No.
1051).

1

Docket no. 1139, filed June 5, 2018.

2

Id. at 4.

3

Id. at 2.

4. Defendant Stene Marshall filed the appeal pro se and no other Defendant filed
any appeal on the [Final Judgment].
5. On June 5, 2018, the 10th Circuit affirmed this Court’s [Final Judgment] by
written decision.
***
16. No other Defendant, other than Stene Marshall filing pro se, applied for
appeal on the [Final Judgment] . . . . 4
Plaintiff’s Motion also correctly notes that “no order has been issued by this Court effectively
staying the enforcement of the permanent injunction . . . .” 5
Rule 62(a)(1) states in pertinent part:
[U]nless the court orders otherwise, the following are not stayed after being
entered, even after an appeal is taken:
(1) . . . [a] final judgment in an action for an injunction . . . . 6
But this does not resolve whether a Certificate of Judgment may issue in this case.
Registration of a final judgment is governed by 28 U.S.C. § 1963, which states:
A judgment in an action for the recovery of money or property entered in any
court of appeals, district court, bankruptcy court, or in the Court of International
Trade may be registered by filing a certified copy of the judgment in any other
district or, with respect to the Court of International Trade, in any judicial district,
when the judgment has become final by appeal or expiration of the time for
appeal or when ordered by the court that entered the judgment for good cause
shown. Such a judgment entered in favor of the United States may be so
registered any time after judgment is entered. A judgment so registered shall have
the same effect as a judgment of the district court of the district where registered
and may be enforced in like manner.
The mandate returning the case to this court has not yet issued, so the appeal is not
completely terminated. Therefore, under § 1963, Plaintiff must, at this date, show good cause to
obtain an order certifying the Final Judgment for registry in another district. “While the Tenth

4

Id. at 2, 4.

5

Id. at 5.

6

See also California v. Leavell, 220 F.3d 562, 565–66 (7th Cir. 2000).

2

Circuit has not spoken regarding what constitutes good cause in this setting, other courts have
stated that the ‘good cause requirement may be satisfied if the judgment debtor has substantial
property in a foreign district and insufficient property in the rendering district to satisfy the
judgment.’” 7
“Traditional injunctions . . . are not registrable under § 1963 because that would be
pointless: they act in personam nationwide.” 8 But this is not a barrier to certifying the Final
Judgment for registration in this case. The Final Judgment granted a permanent injunction 9 and a
money judgment against Stene Marshall and others for “$11,907,320.00 in monetary damages
and $3,668,007.53 attorneys’ fees and costs.” 10
In Stiller v. Hardman, the Second Circuit held that “had [the district court] only issued an
injunction order[,] its judgment order would not have been registrable, but inasmuch as the
[district court’s] judgment contained, together with an injunction order, an award for damages,
the entire . . . judgment [wa]s nominally registrable but the injunctive portion thereof [wa]s not
enforceable [in the district of registration.]” 11 Therefore, the Final Judgment in this case might be
certified for registry in another court, and enforceable as to the portion of the Final Judgment
awarding money damages where registered, but the permanent injunction portion is not.
Plaintiff was asked in the June 7, 2018 hearing to provide evidence of property in another
district and insufficient property in this district for purposes of establishing good cause under
§ 1963. Plaintiff failed to do so. Therefore, Plaintiff has failed to demonstrate good cause for

7

Republic Bank v. Amtec Precision Prod., Inc., No. 1:06-CV-112 TS, 2008 WL 410130, at *1 (D. Utah Feb. 12,
2008) (quoting Schreiber v. Kellogg, 839 F. Supp. 1157, 1162 (E.D. Pa. 1993)).
8

Pac. Reinsurance Mgmt. Corp. v. Fabe, 929 F.2d 1215, 1218 (7th Cir. 1991) (internal citations omitted).

9

Final Judgment at 2-4, docket no. 1043, filed May 8, 2017.

10

Id. at 1.

11

324 F.2d 626, 628 (2d Cir. 1963).

3

registration of the Final Judgment in another district pending completion of the appeal. Plaintiff
is not entitled to a Certificate of Judgment at this time.
ORDER
IT IS HEREBY ORDERED that Plaintiff’s Ex Parte and Emergency Motion to Enforce
Permanent Injunction; Issuance of AO451 12 is DENIED without prejudice.
Signed June 8, 2018.
BY THE COURT

________________________________________
District Judge David Nuffer

12

Docket no. 1139, filed June 5, 2018.

4