Free Objection - 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 DEFENDANT WILLIAM AND MICHELE WONG'S OBJECTION TO PLAINTIFF'S PROPOSED FORM OF JUDGMENT (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 4848-6291-9682.1

Document 325

Filed 11/01/2007

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LEWIS BRISBOIS BISGAARD & SMITH LLP

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Defendants William & Michele Wong object to the proposed form of judgment against them. When the Court granted the remittitur as to Wong, Marlyn offered to accept the remittitur only on the condition that the Wongs agree to not file any appeal from the Court's judgment. The Court recognized Marlyn's additional condition in its July 6, 2007 Order (See, Clerk's docket #304, page 2.) This additional condition is not contemplated by the Rule 59 of the Federal Rules of Civil Procedure as they pertain to remittiturs. As such, this additional condition effectively made Wong's acceptance of it a settlement between Marlyn and the Wongs. The Court also referred to this as a settlement in its July 18, 2007 Order (See, Clerk's docket #306, page 1.) Nowhere in Marlyn's offer did Marlyn reserve the right to seek any additional judgments against the Wongs for additional damages by way of attorneys' fees, costs or any other method of recovery. Marlyn's offer was simply to have one judgment against the Wongs, entered in accordance with the Court's remittitur, so long as the Wongs waived their right to appeal. As set forth by the Court in its ruling on the Motion for Remittitur, that judgment would be for Fifty Thousand, One and 00/100 Dollars ($50,001.00). Accordingly, it is Defendants' position that the judgment should be a final judgment, with a reference that each party is to bear its own costs and attorneys' fees, consistent with the settlement reached between Plaintiff and the Wongs. Defendants also have an objection to the extent that Michele Wong's name is incorrectly spelled.
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
4848-6291-9682.1

Document 325

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Filed 11/01/2007

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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
4848-6291-9682.1

Document 325

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Filed 11/01/2007

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