Free Objection - District Court of Arizona - Arizona

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Peter A. Boyle, Bar #020113 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1780 Fax: (602) 200-7835 [email protected] Attorneys for Defendant, Buehl UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MARLYN NUTRACEUTICALS, INC., an Arizona corporation , Plaintiff, v. 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. WORLD NUTRITION, INC., an Arizona corporation , Third Party Plaintiff/Counterclaimant/Defendant, v. MARLYN NUTRACEUTICALS, INC., an Arizona corporation; and CRAIG KNOBLOCH, Counterdefendants/Plaintiff/Third Party Defendant. (Assigned to the Honorable H. Russell Holland) DEFENDANT BUEHL'S OBJECTION TO PROPOSED FORM OF JUDGMENT AGAINST WORLD NUTRITION INC., WILLIAM AND MICHELLE WONG AND PATRICK BUEHL NO. CIV 02 1876 PHX-HRH

Case 2:02-cv-01876-HRH

Document 324

Filed 10/30/2007

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Defendant Patrick Buehl, through undersigned counsel, hereby objects to the proposed form of Judgment filed by Plaintiff in this matter on October 26, 2007, as it is improperly captioned as a Judgment Against World Nutrition, Inc., William and Michelle Wong and Patrick Buehl, without legal basis, to the detriment of Defendant Buehl. On October 24, 2007, Plaintiff reached a settlement agreement with Defendant Buehl, and that agreement will result in dismissal with prejudice of Patrick Buehl from this civil suit. The proposed judgment would assign liability only to World Nutrition, Inc., but would order injunctive relief against World Nutrition, William Wong, and Patrick Buehl. Defendant asserts that the Court should not sign and enter that form of Judgment but should require that Plaintiff submit an amended form of judgment removing Buehl from the judgment caption and from the paragraph ordering injunctive relief. The Court should not enter a judgment against Patrick Buehl in a case where he has agreed to settlement with Plaintiff. Plaintiff filed the Notice of Settlement in this case, and the parties are following through on all aspects of the agreement. Plaintiffs have agreed to sign a Stipulation For Dismissal With Prejudice of Defendant Patrick Buehl. The plain language of Plaintiff's text, on page 2 of the form of judgment lodged, requests "the Court finding that World Nutrition willfully and maliciously misappropriated Marlyn's Customer List and that Marlyn is entitled to exemplary damages pursuant to A.R.S. § 44-403(B)...." The relief requested below that text is monetary, and is sought against Defendant World Nutrition, Inc. only. On the third page, Plaintiff seeks injunctive relief in the proposed judgment, regarding protection against use of Plaintiff's "Customer List," as follows: IT IS FURTHER ORDERED that World Nutrition, Inc., William Wong, Patrick Buehl, and their officers, agents, servants, and all persons acting in concert with them or any of them who will receive actual notice of the court's order by personal services or otherwise, are enjoined for a term of five years after the entry of judgment from using the attached customer list to send direct mailings and from using the
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attached list to contact directly, by telephone, in person, via facsimile, or any other means of communication, any person on the attached list; Because his dismissal from the case is imminent and agreed upon by Plaintiff, Defendant Buehl contests the language of that paragraph in the proposed form of judgment. The injunctive relief paragraph language would constitute judgment against him in this civil matter.1 His dismissal from this matter having been agreed upon, Buehl cannot fairly be included in a judgment proposed after the settlement was reached. The words "Judgment Against Patrick Buehl" therefore cannot properly, or fairly, appear in the judgment caption. Defendant Buehl protests because he reached the settlement agreement on October 24th, two days before Plaintiff filed the form of judgment now contested. Preventing entry of judgment against him was an obvious and material benefit of the settlement. Because of the settlement with Buehl, Plaintiff's proposed form of judgment includes no actual finding against Buehl. The caption must be changed to reflect the language of the judgment. Inclusion of Patrick Buehl's name on the caption of the judgment in this matter will misrepresent the outcome, as the parties agreed to resolve their dispute by settlement. Inclusion of Buehl's name in the judgment caption will advise all the world that this case resulted in judgment on the merits against Mr. Buehl, and that is unfair, improper after settlement, unnecessary, detrimental, and completely out of keeping with the agreed upon dismissal with prejudice to result from settlement with Plaintiff. Entry of judgment against Buehl would be patently unjust under these circumstances. As our courts encourage and support resolution of disputes, the Court here The request for injunctive relief also overreaches because the text on page 2 of the proposed judgment (cited above) contains only a "finding that World Nutrition willfully and maliciously misappropriated Marlyn's Customer List;" such finding does not implicate any other party, most certainly not Buehl.
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should require Plaintiff to file another form of judgment removing the name of Patrick Buehl from the injunctive relief paragraph and from the caption. DATED this 30th day of October, 2007. JONES, SKELTON & HOCHULI, P.L.C.

BY /s/ Peter A. Boyle Peter A. Boyle 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant, Buehl COPY of the foregoing filed electronically this 30th day of October, 2007: COPY of the foregoing mailed this 30th day of October, 2007 to: The Honorable H. Russell Holland UNITED STATES DISTRICT COURT 222 West Seventh Avenue - No. 54 Anchorage, Alaska 99513 Paul M. Levine, Esq. MCCARTHY HOLTHUS & LEVINE 3636 North Central Avenue, Suite 1100 Phoenix, Arizona 85012 Attorneys for Plaintiff Stephen D. Hoffman LEWIS BRISBOIS BISGAARD & SMITH, LLP 2929 North Central Avenue, Suite 700 Phoenix, Arizona 85012-2761 Attorneys for Wong & World Nutrition

Marie Doty

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