United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO QUASH THE
WRIT OF EXECUTION AND DENYING MOTION TO STAY POST-JUDGMENT
DISCOVERYAND ENFORCEMENT OF THE JUDGMENT [DOC. NO.
MARILYN L. HUFF, District Judge.
November 16, 2016, the Court entered a final amended
judgment, which included an award for attorneys' fees in
the amount of $555, 118.64, in favor of Defendant and
Counter-Claimant Storix, Inc. and against Plaintiff and
Counter-Defendant Anthony Johnson. (Doc. No. 246.) On
November 28, 2016, Johnson filed a motion to stay enforcement
of the judgment pending appeal. (Doc. No. 251.) Storix filed
an opposition, and the Court held telephonic status
conferences on November 17, November 29, and December 13,
2016. (Doc. Nos. 248, 252, 254, 255.) In a written order, the
Court granted the motion to stay enforcement of the judgment
pending appeal on the condition that Johnson must post a
supersedeas bond in the amount of the full judgment. (Doc.
No. 256.) The Court ordered Johnson to file notice of the
supersedeas bond with the Court by December 20, 2016.
(Id. at 4.)
December 20, 2016, Johnson filed a motion to stay execution
of the judgment with the Ninth Circuit. (See Doc.
No. 258 at 3.) On December 23, 2016, Johnson filed an ex
parte motion in this Court to continue the stay until the
Ninth Circuit could rule on the motion filed with that court.
(Doc. No. 258.) This Court granted the motion, extending the
stay of enforcement for 30 days from December 27, 2016. (Doc.
No. 259.) The Ninth Circuit denied Johnson's motion to
stay on January 13, 2017. (Doc. No. 260.)
did not file a notice of a supersedeas bond with this Court.
On January 27, 2017, the Clerk of Court issued an abstract of
judgment and a writ of execution. (Doc. Nos. 263-64.) On
April 28, 2017, Storix served Johnson with post-judgment
written discovery. (Doc. No. 268-2 at 3, ¶ 9.) On May
30, 2017, Johnson responded to each discovery request with
the following objection:
Objection. As set forth in plaintiff's concurrently filed
motion, post-judgment discovery and other proceedings to
enforce the judgment should be stayed pending the outcome on
appeal in accordance with Rule 69(a) of the Federal Rules of
Civil Procedure and California law.
(Doc. No. 269-1.) In addition to this objection, Johnson
asserted various forms of privilege in response to some of
the discovery requests. (Id.) On May 31, 2017,
Johnson filed a motion for (1) an order quashing
Defendant's writ of execution, (2) a protective order
staying post-judgment discovery, and (3) an order staying
enforcement of the judgment. (Doc. No. 268.) Storix filed an
opposition on June 19, 2017, and Johnson filed a reply on
June 26, 2017. (Doc. Nos. 269, 270.)
to its discretion under Local Rule 7.1(d)(1), the Court
determines that the motion is fit for resolution without oral
argument. Accordingly, the Court submits the motion on the
parties' papers and vacates the scheduled hearing. For
the reasons that follow, the Court denies Johnson's
motion and overrules his objections to post-judgment
Johnson is not entitled to a stay of enforcement pending
began this action on August 8, 2014 by filing a complaint
against Storix for copyright infringement of a software
program. (Doc. No. 1.) Storix filed a counterclaim seeking a
declaratory judgment that it did not infringe any copyright
and that it owned all copyrights in the software. (Doc. No.
5.) On December 15, 2015, a jury returned a verdict in favor
of Storix and against Johnson. (Doc. No. 160.) On January 4,
2016, Storix filed a motion pursuant to 17 U.S.C. § 505
seeking costs not taxable under 28 U.S.C. § 1920 as well
as attorneys' fees. (Doc. No. 165.) The parties briefed
the issue and attended mediation sessions. (Doc. Nos. 180,
184, 202, 204.)
16, 2016, the Supreme Court issued an opinion in
Kirtsaeng v. John Wiley & Sons, Inc., 136 S.Ct.
1979 (2016). At the Court's request, each party briefed
the Court on how that decision should impact the Court's
analysis of Storix's motion for costs and fees on July
18, 2016. (Doc. Nos. 217-18, 223-24.) On November 16, 2016,
the Court entered a final amended judgment in favor of
Storix, which included an award for attorneys' fees.
(Doc. No. 246.) Storix now seeks to enforce that judgment,
but Johnson argues that enforcement must be stayed pending
argues that under the Federal Rules of Civil Procedure,
post-judgment enforcement must follow California law. (Doc.
No. 268-1 at 3-4.) California law purportedly prohibits
enforcement of costs-only judgments pending appeal.
(Id. at 4-5.) Johnson argues that the award of
attorney's fees is a costs-only judgment. Therefore,
according to Johnson, he is not required to post a
supersedeas bond while his case is on appeal. In support of
his position, Johnson cites Rule 69(a), which provides:
A money judgment is enforced by a writ of execution, unless
the court directs otherwise. The procedure on execution-and
in proceedings supplementary to and in aid of judgment or
execution-must accord with the procedure of the state where
the court is ...