Sumotext Corp. -v- Zoove, Inc.

Background

After a jury returned a defense verdict, the court entered judgment stating that Sumotext would take nothing from its suit and that the defendants would recover their costs according to proof. The clerk later taxed, or formally assessed, $133,795.50 in costs against Sumotext and for Zoove, Inc., Virtual Hold Technology, and VHT StarStar, collectively referred to in the opinion as “Zoove.”

On September 9, 2021, Zoove obtained a writ of execution on the costs-only judgment. A writ of execution is a court-issued authorization to enforce a money judgment. Sumotext then moved to quash, or cancel, the writ and to stay, or pause, enforcement while its appeal was pending. In the alternative, Sumotext asked to obtain a stay by posting a supersedeas bond under Federal Rule of Civil Procedure 62(b).

Appellate Proceedings

While the motion was pending, the Ninth Circuit issued a memorandum affirming the judgment. Sumotext argued that the motion was not yet moot because the appellate decision was not final while a petition for rehearing could still be filed. Sumotext filed a petition for panel rehearing, but the Ninth Circuit denied it on November 12, 2021. Sumotext did not file a petition for rehearing en banc.

Ruling

The court concluded that Sumotext’s request to quash the writ and stay enforcement “pending resolution of the appeal” was moot because the appeal had been resolved. The court noted that the appellate mandate had not yet issued but expected it to issue within days under Federal Rule of Appellate Procedure 41.

Judge Beth Labson Freeman denied as moot Sumotext’s motion to quash the writ of execution and stay enforcement of the costs-only judgment pending appeal. The court also vacated the hearing scheduled for March 10, 2022. The order did not revisit the jury verdict or the appellate court’s affirmance.