Free Order - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

MARLYN NUTRACEUTICALS, INC., an Arizona corporation,

) ) ) Plaintiff, ) ) vs. ) ) WILLIAM WONG, et al., ) ) Defendants. ) ___________________________________)

No. 2:02-cv-1876-HRH

O R D E R Case Status In a previous case status order1 the court took note of the ongoing settlement negotiations between the parties. It had been

suggested to the court that those efforts would be concluded by February 12, 2008. Since that date, the court has not received any indication as to whether the parties have or have not achieved a settlement. In the absence of better information, the court assumes that a global settlement was not achieved. However, it is the court's

belief that partial settlements were achieved some months ago as between plaintiff and the Wongs and between plaintiff and Buehl.
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The court does recall being advised that there were some lingering disagreements between the latter parties. The court came away from a face-to-face status conference some months ago with the

conviction that the remaining differences between plaintiff and the Wongs and Buehl lacked substance and could not possibly be allowed to stand in the way of concluding this litigation as to those parties. Unless the parties are still negotiating for a global

settlement -- in which case the court should be so advised on or before March 7, 2008 -- plaintiff shall serve and file with the court on or before March 14, 2008, its proposed judgment in favor of plaintiff against the defendants Wong in the amount of $1.00 compensatory damages, plus punitive damages in the amount of $50,000.00. This proposed judgment shall provide that the Wongs

have waived their right to appeal, and that the question of attorney fees shall be submitted to the court for resolution upon plaintiff's application for attorney fees. Further, unless the

court is advised of a global settlement on or before March 7, 2008, plaintiff shall also serve and file with the court on or before March 14, 2008, its proposed judgment in favor of plaintiff against defendant Buehl in the amount of $1.00 compensatory damages, plus punitive damages in the amount of $50,000.00, each party to bear its or his own attorney fees. This latter proposed judgment shall

likewise provide that defendant Buehl has waived his right to appeal. Both of the foregoing proposed judgments shall afford

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plaintiff injunctive relief as provided in the court's order of November 14, 2006.2 Again, unless ongoing settlement negotiations between

plaintiff and defendant World Nutraceuticals are continuing, it is time to plan for a rather unusual retrial of the damages issues as between plaintiff and World with regard to plaintiff's Lanham Act - false advertising claim and plaintiff's unfair competition and trade libel claims. The court would have the parties consider whether or not they continue to desire a jury trial. liability foregoing for both compensatory been Given the fact that World's and punitive and damages inasmuch on the a

claims

have

established,

as

transcript of the original trial testimony exists, it would be far less costly for all concerned if they were to agree to submit the computation of damages to the court. Assuming that the foregoing suggestion for reconsideration of damages is unacceptable to some party, then a scheme for presenting the damages evidence to a new jury must be devised. The court

proposes that plaintiff serve and file a designation of trial testimony and exhibits to be considered by a second jury. A

counter-designation of testimony and exhibits by defendant World Nutraceuticals should then be served and filed, followed by a final (rebuttal) designation by plaintiff. that it will be neither It is the court's perception nor appropriate for new

necessary

Order re Plaintiff's Post-Verdict Motions at 16, Docket No. 282. - 3 -

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supplemental testimony to be taken. As explained in orders dealing with post-judgment motions, the original trial jury simply As

misunderstood the evidence and/or the instructions on damages.

regards instructing a new jury, the jurors will be instructed that liability for both compensatory and punitive damages has been determined in an earlier trial, and that the job of this jury is to compute damages. While the court would intend to employ the same

damages instructions as were used in the first trial, the court will certainly be open to suggestions for improving those

instructions in light of the results of the first trial. The court will take comments from counsel in one or the other of two fashions before proceeding further with a plan for retrial of this case. The court will be in Phoenix for the trial of The court will be

another case between March 3 and 21, 2008.

available during that time for a further status conference at the end of the trial day (4:30 p.m.), and counsel may arrange a status conference Anchorage.3 by contacting the court's judicial assistant in

Alternatively, the court will take written comments

from counsel if served and filed on or before March 21, 2008. DATED at Anchorage, Alaska, this 28th day of February, 2008.

/s/H. Russel Holland United States District Judge

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Marty Stafford; 907.677.6252. - 4 -

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