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Revolution Eyewear, Inc. v. Aspex Eyewear

September 2, 2009

REVOLUTION EYEWEAR, INC., PLAINTIFF,
v.
ASPEX EYEWEAR, INC., ET AL. DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

[Motion filed on August 10,2009]

ORDER DENYING MOTION FOR SANCTIONS [Link & Term Doc. No. 672]

On August 10, 2009, Defendant and Counterclaimant Contour Optik, Inc. ("Contour") filed a Motion for Sanctions ("Mot."). Contour moves the Court to use its inherent power to sanction Plaintiff Revolution Eyewear, Inc. ("Plaintiff") and to award Contour its attorney's fees and costs for bringing the Motion. Contour's Motion came before the Court for hearing on August 31, 2009. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court DENIES the Motion.

I. BACKGROUND

On February 25, 2008, the Court issued a judgment in favor of Contour awarding damages of $4,193,567. On May 27, 2008, Plaintiff filed a Motion for Stay of Execution of Judgment Pending Appeal; the Court denied the motion on July 14, 2008.

On June 5, 2009, the Federal Circuit issued a Mandate affirming this Court's judgment in favor of Contour. That same day, Contour filed an Affidavit and Request for Issuance of Writ of Execution and a Writ of Execution issued.

On June 12, 2009, Plaintiff filed an Ex Parte Application for Temporary Restraining Order as to Execution of Judgment ("Application") as well as a Motion for Stay of Execution of Judgment. On June 17, 2009, the Court denied the Application.

Approximately two weeks later, on July 2, 2009, a Process Receipt and Return was filed for service of the Writ of Execution on Bank of America. On July 8, 2009, the Court denied Plaintiff's Motion for Stay of Execution of Judgment.

On July 11, 2009, Plaintiff filed a Motion for Emergency Relief for Stay with the Federal Circuit.

(Declaration of Jeffrey F. Yee ("Yee Decl.") Ex. 3; Opp'n 3.) On July 13, 2009, the Federal Circuit ordered Contour to file a response no later than July 20, 2009. (Yee Decl. Ex. 4; Opp'n 3.)

After this Court denied Plaintiff's Application and its Motion for Stay of Execution of Judgment, and before the Federal Circuit could grant any relief, Plaintiff sent letters dated July 15 and 16, 2009 to the U.S. Marshal Service ("USMS") and Bank of America, respectively. (Yee Decl. Exs. 1, 2.) Plaintiff sent Contour a copy of the letter to USMS but not the letter to Bank of America. These letters are the basis on which Contour moves the Court to sanction Plaintiff.

Both letters stated Plaintiff "filed an emergency motion for stay of the judgment pending appeal" to the Federal Circuit and that a response from Contour was due by July 20, 2009. (Yee Decl. Exs. 1, 2.) Plaintiff "request[ed]" the USMS "cease execution" of the judgment. (Yee Decl. Ex. 1.) Plaintiff also requested Bank of America "exercise its duty to depositor Revolution to resist any actions by third parties to seize assets or otherwise interfere with any accounts held by Revolution." (Yee Decl. Ex. 2.)

Contour filed a Satisfaction of Judgment on August 4, 2009. The Federal Circuit has yet to ...


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