Derma Pen v. 4EverYoung Limited et al

Filing 565

ORDER denying 560 Motion to Vacate Non Jury Valuation Hearing. The valuation hearing will start today, February 6, 2015, at 9:00 a.m.Signed by Judge David Nuffer on February 6, 2015. (DN)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DERMA PEN, LLC,
Plaintiff,
v.
4EVERYOUNG LIMITED d/b/a
DERMAPENWORLD, et al.,

MEMORANDUM DECISION AND
ORDER DENYING [560] EMERGENCY
MOTION TO VACATE
Case No.: 2:13-CV-00729-DN-EJF

Defendants.
District Judge David Nuffer
Magistrate Judge Evelyn J. Furse
4EVERYOUNG LTD. and EQUIPMED
INTERNATIONAL PTY. LTD.,
Counterclaim Plaintiffs,
v.
DERMA PEN, LLC,
Counterclaim Defendant.
Derma Pen, LLC’s Emergency Motion to Vacate Non Jury Valuation Hearing,1 filed this
afternoon, is DENIED. The valuation hearing is set today, February 6, 2015, at 9:00 a.m.2
Notice of the hearing was first given January 6, 2015.3 The valuation hearing is in furtherance of
the summary judgment order granting specific performance of two sections of the Sales

1

Docket no. 560, filed February 5, 2015. Several additional reasons for denying the Derma Pen motion are well
stated in 4EverYoung’s Opposition to Emergency Motion to Vacate Jury Valuation Hearing . . ., docket no. 564,
filed February 5, 2015.
2

Minute entry, docket no. 533, filed January 29, 2015.

3

Minute entry, docket no. 473, filed January 6, 2015.

Distribution Agreement between the parties. 4 Those sections deal with sale to 4EverYoung LTD.
of a trademark and domain name owned by Derma Pen, LLC (“Derma Pen”).
Valuation of the trademark and domain name is part of the specific performance process
and is unrelated to any other cause of action. Therefore, this circumstance is unlike that which
resulted in jury trial setting of the breach of contract claim and fraudulent inducement claim
earlier in this case. And this circumstance is different than that in Dairy Queen, Inc. v. Wood, 5
where the Supreme Court concluded “that the district judge erred in refusing to grant petitioner's
demand for a trial by jury on the factual issues related to the question of whether there has been a
breach of contract” which were common with those [in] respondents' claim to equitable
relief . . . .” 6 Derma Pen has not asserted that the valuation of the trademark and domain name is
common to any other issue in this case.
Derma Pen cites Fischer Imaging Corp. v. General Electric Co. 7 which has the correct
analytical framework. In Fischer,
[t]h[e] dispute arose from a purchase agreement between Plaintiff Fischer
Imaging Corporation (“Fischer”) and Defendant General Electric Company
(“GE”) for the manufacture and purchase of medical imaging devices called Tilt
C units. Fischer brought th[e] diversity action in federal district court, seeking a
declaratory judgment to determine a reasonable price for the Tilt C units. GE filed
a counterclaim seeking specific performance of the production requirements
contained in the purchase agreement. 8

4

Minute entry, docket no. 473, filed January 6, 2015. See also Memorandum Decision and Order Granting
4EverYoung’s 241 Motion for Partial Summary Judgment on Specific Performance . . . , docket no. 476, filed
January 12, 2015.
5

369 U.S. 469 (1962).

6

Id. at 480.

7

187 F.3d 1165 (10th Cir 1999).

8

Id. at 1167 (citation omitted).

2

Because the initial term of the agreement had expired, the court had to determine the purchase
price in the declaratory action.
To resolve whether the right of trial by jury attaches to a particular cause of
action, we apply a two-step analysis. First, we determine whether the cause of
action was tried at law in 1791, or is analogous to such a cause of action. . . .
Second, ‘[i]f the action in question belongs in the law category, we then ask
whether the particular trial decision must fall to the jury in order to preserve the
substance of the common law right as it existed in 1791.’ 9
Application of the Fischer analysis shows that Derma Pen has no right to jury
determination of valuation. In 1791, “an action claiming a right to specific performance of a
contract was tried to a judge.” 10 “Specific performance is an equitable remedy. There is no jury
in a case for an equitable remedy. Thus, [Derma Pen] is not entitled to a jury trial.” 11
Dated February 6, 2015.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

9

Id. at 1168 (citation and quotations omitted).

10

Burlington N. R. Co. v. Nebraska Pub. Power Dist., 931 F. Supp. 1470, 1481 (D. Neb. 1996).

11

Biscayne Cove Condo. Ass'n Inc. v. QBE Ins. Corp., No. 10-23728-CIV, 2013 WL 2646828, at *3 (S.D. Fla. June
12, 2013) (citations omitted).

3