United States District Court, D. Colorado
ORDER GRANTING EX PARTE MOTION FOR APPOINTMENT OF
RECEIVER AND GRANTING RELATED RELIEF
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
Upon
consideration of the Plaintiff's Ex Parte Motion
for Appointment of a Receiver and Related Relief Pursuant to
Fed.R.Civ.P. 69(A) and Colo. R. Civ. P. 66 and 69 (the
“Motion”) (Doc. # 3); and upon good cause being
FOUND for the relief requested in the Motion and provided
herein; IT IS HEREBY ORDERED that:
1. For
the reasons stated in the Motion, the Motion (Doc. # 3) is
granted.
2.
Cordes & Company, through its principal Edward B. Cordes,
is hereby appointed as receiver (the “Receiver”)
for the purposes of receiving assignment of (i) the
“WalkMed” trademark, United States Patent and
Trademark Office (“U.S.P.T.O”) registration
number 2230655, (the “Trademark”); (ii) any and
all associated goodwill related to the Trademark (the
“Goodwill”); and (iii) any and all books and
records (collectively with the Trademark and the Goodwill,
the “Receivership Assets”) from Defendant WalkMed
Infusion, LLC (“WalkMed”); enforcing all rights
of, and in the name of, WalkMed related to the Receivership
Assets and otherwise pursuant to his status as Receiver,
against any person or entity, including as infringers of the
Trademark; conducting sales or other appropriate dispositions
of the Receivership Assets; and promptly delivering all net
proceeds to Plaintiff Churchill Medical Systems, Inc.
(“Churchill”) (and only to Churchill) towards
satisfaction, in whole or in part, of its monetary judgment
registered by this Court on August 10, 2018 (the
“Judgment”), see (Doc. # 3-1) against WalkMed
(the operation, management and governance of WalkMed, the
authority over the Receivership Assets, and all other powers,
status, rights and authority of the Receiver described in
this Order, the “Receivership”).
3. The
Receiver serves herein, and discharges all his duties under
this Order, as an officer of this Court, solely in a
representative capacity, and not in an individual capacity,
and does not, in being appointed as Receiver or by acting as
Receiver hereunder, thereby become personally liable to any
person or governmental entity under any law, statute, rule,
regulation, or other doctrine of law or equity. All persons
dealing with the Receiver shall look only to the Receivership
Assets (subject to the priority, rights and protections of
Churchill described herein), and not the Receiver or its
officers, directors, employees, or agents, for the
satisfaction of all claims against and obligations and
liabilities of the Receiver, the business of WalkMed, and the
Receivership Assets.
4. The
Receiver has the right to obtain, review and analyze all of
the past records relating to the Receivership Assets,
including without limitation accounting records,
disbursements, banking records, sales records and any other
books and documents related the Receivership Assets as
necessary to determine whether there are any potential claims
or rights against the other persons and entities arising out
of the ownership, operation or transfer of the Receivership
Assets or otherwise perform the duties of the Receiver.
Additionally, the Receiver may solicit the Court for further
authorization to expand its review of the books and records
related to the Receivership Assets.
5. The
Receivership Assets are hereby assigned to the Receiver,
together with all rights, prerogatives, title, and interests
of WalkMed therein; including all rights to bring, pursue,
enforce, collect on and settle any and all claims and causes
of or choses in action related to the foregoing, in any
court, tribunal or other forum. The Receiver shall have all
of the rights, authority and prerogatives set forth in
paragraph 6, below, or elsewhere attributed to the Receiver
in this Order.
6. The
Receiver is hereby granted all powers, status, rights and
authority held by receivers dealing with the disposition of
debtor assets for the benefit of a creditor and related
powers, status, rights and authority, in addition to all
powers, status, rights and authority reasonably necessary to
accomplish the purposes stated herein, such powers, status,
rights and authority to be exercised at any time and from
time to time, repeatedly or singly, all in the discretion of
the Receiver, and such powers, status, rights and authority
shall include, without limitation, the following:
(i) To receive assignment of the Receivership Assets and,
upon assignment, to take exclusive possession, custody, and
control over the Receivership Assets pending liquidation; all
rights in the Receivership Assets shall vest in Receiver as
of the filing of the Motion;
(ii) To have the status of a subsequent purchaser for
valuable consideration without notice with regard to any and
all Receivership Assets, enforceable against all persons and
entities (and the Receiver shall have such status);
(iii) To have the status of a person who took in good faith
for a reasonably equivalent value with regard to any and all
Receivership Assets, enforceable against all persons and
entities (and the Receiver shall have such status);
(iv) To execute assignment of the Receivership Assets, on
behalf of WalkMed, including to or in the name of Receiver;
(v) To enforce any and all legal and equitable rights,
titles, interests and prerogatives, whether as WalkMed or
otherwise, arising from or related to the Receivership
Assets, against any person or entity, including, without
limitation, for infringement, and to assert and collect all
penalties, damages and other recoveries and to transfer the
net proceeds of such collections only to Churchill; (vi) To
market, sell, liquidate, transfer or assign the Receivership
Assets, including pursuant to 15 U.S.C. § 1060, and to
transfer the net proceeds of any such sale, transfer or
assignment only to Churchill; any and all rights,
prerogatives, title and interests in the Receivership Assets,
and any and all net proceeds derived from the liquidation of
the Receivership Assets, shall inure to the exclusive benefit
of Churchill until such time as the Judgment has been fully
and finally satisfied and paid in full (including, without
limitation, all interest, costs and fees accrued on the
Judgment);
(vii) To institute such legal or equitable actions, suits or
other procedures, in any court, tribunal or forum, including
any state, federal or other court with jurisdiction, as the
Receiver deems necessary or useful to enforce his rights in
the Receivership Assets, including any action to prevent or
halt infringement and/or otherwise unauthorized use of the
Receivership Assets, before and after liquidation, and to
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