Free Amended Document (NOT Motion/Complaint) - District Court of Arizona - Arizona

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Stephen D. Hoffman, #13875 LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone: (602) 385-1040 Facsimile: (602) 385-1051 Attorneys for Wong and World Nutrition

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

MARLYN NUTRACEUTICALS, INC., an Arizona corporation, Plaintiff,

No. CIV 02-1876 PHX-HRH DEFENDANTS WORLD NUTRITION'S AND WILLIAM AND MICHELE WONG'S AMENDED OBJECTION TO PLAINTIFF'S PROPOSED FORM OF JUDGMENT AGAINST WORLD NUTRITION, INC., WILLIAM AND MICHELE WONG AND PATRICK BUEHL (Assigned to The Honorable H. Russell Holland)

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vs.
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WILLIAM WONG and JANE DOE WONG, husband and wife; PATRICK BUEHL and JANE DOE BUEHL, husband and wife; WORLD NUTRITION, INC., an Arizona corporation; ABC Corporations I-X; XYZ PARTNERSHIPS I-X; and JOHN DOES I-X and JANE DOES I-X, husbands and wives, respectively, Defendants,

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WORLD NUTRITION, INC., an Arizona corporation, Third Party Plaintiff/Counterclaimant/ Defendant, vs.

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MARLYN NUTRACEUTICALS, INC., an Arizona Corporation; and CRAIG KNOBLOCH, Counterdefendant/Plaintiff/Third Party Defendant.

Case 2:02-cv-01876-HRH 4813-8269-5938.1

Document 327

Filed 11/01/2007

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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Defendants World Nutrition, Inc. and William and Michele Wong hereby object to Plaintiff's proposed form of judgment against World Nutrition, William and Michele Wong and Patrick Buehl for the reason that the Court ordered, in its November 13, 2006 Order on Plaintiff's Post-trial Motions, that the judgment shall be sealed. (See, Clerk's Docket #241, page 16.) Plaintiff's proposed form of judgment makes no reference to the judgment being sealed. Defendants also have an objection to the extent that Michele Wong's name is incorrectly spelled. Finally, Defendants object to the language in the judgment "that there is no just reason for delay and the Clerk is directed to enter this Judgment forthwith" for the reason that there are remaining claims in this case. The parties, if they are unable to reach a settlement, will proceed to a re-trial on Plaintiff's damages on the Lanham Act, unfair competition and trade libel claims. Accordingly, it is Defendants' position that the entry of final judgment should be delayed until after the re-trial on damages. Entering a partial final judgment in this case would lead to the potential result of having one appeal pending while the remainder of the case is still being tried, which could also result in having two separate appeals pending in the same case. This is the situation which Rule 54(b),

Fed.R.Civ.Proc. is generally designed to prevent. Plaintiff has set forth no good grounds for the entry of a partial final judgment at this time. In light of the remaining claims, and the fact that the proposed judgment clearly does not adjudicate all of the claims, the inclusion of language directing entry of judgment should not be included in the judgment as proposed by Plaintiff.
DATED this 1st day of November, 2007. LEWIS BRISBOIS BISGAARD & SMITH, LLP

By:________s/ Stephen Hoffman_________________ Stephen D. Hoffman Attorneys for Wong and World Nutrition

Case 2:02-cv-01876-HRH
4813-8269-5938.1

Document 327

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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CERTIFICATE OF SERVICE I hereby certify that on the 1st day of November, 2007, a copy of the foregoing DEFENDANTS WORLD NUTRITION AND WILLIAM AND MICHELE WONG'S REPLY TO PLAINTIFF'S RESPONSE TO RULE 60 MOTION FOR RELIEF was filed electronically. A Notice of Electronic Filing (NEF) will be sent by operation of the Court's Electronic Case Filing (ECF) system to the filing party, the assigned Judge and any registered user in the case as indicated on the NEF. All other parties will be served by regular U.S. mail. Parties may access this filing through the Court's system.

____S/Stephen D. Hoffman________________ Stephen D. Hoffman LEWIS BRISBOIS BISGAARD & SMITH LLP Phoenix Plaza Tower II 2929 North Central Avenue, Suite 1700 Phoenix, Arizona 85012-2761 Telephone: (602) 385-1040 Facsimile: (602) 385-1051

Case 2:02-cv-01876-HRH
4813-8269-5938.1

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