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 A status conference was held in this case on November 6, 2007. The primary matter remaining to be resolved in this case is plaintiff's damages for unfair competition, trade libel, and Lanham Act violations established against World Nutrition. In that

regard, the court understands that the parties have scheduled a settlement conference with the assigned magistrate judge for

January 7, 2008.1 It is the court's perception, based upon representations of the parties and filings made by the parties a long time ago, that plaintiff's claims against Wong have been settled. However, it has developed that there may be a disagreement between these parties
1

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about attorney fees, if any, owed by Wong.

If that matter is not

in fact resolved prior to the Marlyn/World settlement conference, the subject of attorney fees as between plaintiff and Wong shall be taken up at the settlement conference. (More generally on the

subject of attorney fees, the court has again advised the parties that, as between Marlyn Nutraceuticals and World Nutrition, the matter of attorney fees will not be taken up until all of the issues between these parties have been resolved, either by

settlement or the entry of judgment, in which latter event the court will entertain applications for attorney fees and costs after the entry of judgment.) As regards defendant Buell, the court believes ­ and filings heretofore made have long suggested ­ that a settlement has also been reached. Here as well, a new disagreement has arisen

regarding whether or not the settlement contemplated injunctive relief in favor of plaintiff and against defendant Buell. The

court believes that it decided the matter of injunctive relief in favor of plaintiff and against defendant Buell by order of

November 14, 2006.2 As an admonition to all of the parties as they prepare for a settlement conference, the court would have the parties know that it believes they long ago passed the point of diminishing returns with respect to this case. Only an excessive jury verdict has kept the case alive. The court believes that emotional concerns

Order re Plaintiff's Post-Verdict Motions at 16, Docket No. 282. - 2 -

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(vindication, retribution, and personal egos) have for some time gotten in the way of common sense in this case. In this same vein,

World Nutrition needs to recognize that its liability for damages has been fixed, and the only remaining question is the amount that should be awarded plaintiff as damages. Finally, regarding World Nutrition's third-party breach of contract claim against defendant Knobloch, a proposed form of judgment based upon the jury verdict has been submitted and will be taken up by the court in due course. Heretofore the court has, at various times, called upon one party or another to submit a status report. It is the court's

normal practice to look to counsel for the plaintiff for status reports. In this case, that process has not worked very well.

Therefore, unless the case is sooner closed out as to one or more of the parties by a stipulated judgment, settlement, or dismissal, any remaining party shall provide the court with their several status reports on or before January 25, 2008. Those reports shall

provide the predicate for a scheduling and planning conference to be held with the court telephonically at a date to be arranged prior to the end of January 2008. The court will be looking to

these reports for input from the parties regarding how, on retrial, the predicate for plaintiff's damages claims will be presented to a new trial jury. The court will be looking for proposals

regarding the early disclosure of witnesses and exhibits for retrial of the damages issues. The court is particularly

interested in how the parties intend to approach plaintiff's Lanham - 3 -

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Act claim (plaintiff must prove relevant sales, but defendant to establish costs). DATED at Anchorage, Alaska, this 29th day of November, 2007.

/s/H. Russel Holland United States District Judge

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