Aquavit Pharmaceuticals, Inc. v. U-Bio Med, Inc.
- Valerie Caproni
- 1:19-cv-03351
- U.S. District Court · Southern District of New York
- 6
In Aquavit Pharmaceuticals v. U-Bio Med, Judge Caproni denied defendants’ motion to modify an earlier compliance order concerning a modified preliminary injunction.
U-Bio Med, Inc., Global Medi Products, and NYUN SHI EUM aka NYEON-SIK EUM remained subject to the August 11, 2020 compliance order because the court denied their motion to modify it. Aquavit Pharmaceuticals, Inc.’s request for enforcement and possible coercive sanctions continued to be addressed in proceedings referred to Magistrate Judge Lehrburger.
What happened
Aquavit Pharmaceuticals, Inc. v. U-Bio Med, Inc. concerned defendants’ request to change an August 11, 2020 order requiring them to address alleged violations of a modified preliminary injunction. Defendants asked the court to narrow the order and extend the compliance deadline from August 21 to September 4, 2020.
Defendants said their lawyer did not learn about the order until August 26 because Tropical Storm Isaias caused power and internet outages and other damage. The court acknowledged those circumstances but noted that defendants remained out of compliance and had already had an opportunity to respond to the plaintiff’s reports.
Judge Valerie Caproni denied the motion to modify the August 11 order. The court said whether defendants had a sufficient excuse for the delay, and whether they complied by September 4, should be considered in the separate proceedings about possible coercive sanctions.
The detailed version
- Aquavit Pharmaceuticals, Inc. v. U-Bio Med, Inc. · No. 1:19-cv-03351
- Valerie Caproni
- Sept. 2, 2020
Background
The court’s August 11, 2020 order required the defendants to address listed examples of noncompliance with the Modified Preliminary Injunction by August 21, 2020. The order also awarded compensatory damages and referred the determination of the exact amount to Magistrate Judge Lehrburger for a report and recommendation. After defendants missed the deadline, Aquavit moved for an order requiring defendants to explain why coercive sanctions should not be imposed. That sanctions motion was also referred to Magistrate Judge Lehrburger for consideration in the same report and recommendation.
The defendants moved to modify the August 11 order in two ways. First, they sought to exclude certain conduct from the order’s scope, arguing that the conduct did not violate the Modified Preliminary Injunction. Second, they asked the court to reset the compliance deadline from August 21 to September 4. Defendants’ counsel stated that he did not learn about the August 11 order until August 26 because Tropical Storm Isaias caused power and internet outages, tree damage, and debris at his home in Westchester County.
Court’s analysis
The court rejected the request to narrow the order. It noted that defendants had an opportunity to address the plaintiff’s three status reports but did not seek permission to respond to them. The court also stated that defendants remained out of compliance with the Modified Preliminary Injunction, which required relatively limited steps: discontinuing use of certain videos, adding disclaimers to defendants’ YouTube channels and videos, and removing suggestions that defendants owned United States patents or other United States-based intellectual-property rights related to AQUAGOLD.
The court sympathized with the circumstances caused by the storm but concluded that those circumstances did not change defendants’ continued noncompliance. Whether the delay was justified, and whether defendants fully complied by September 4, were matters for Magistrate Judge Lehrburger to consider in connection with the coercive-sanctions proceedings. The court noted that full compliance could eliminate the need for coercive sanctions.
Disposition
Judge Valerie Caproni denied defendants’ motion to modify the August 11, 2020 order. The opinion does not state that the motion was denied with or without prejudice.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.