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Churchill Medical Systems, Inc. v. Walkmed Infusion, LLC

United States District Court, D. Colorado

October 29, 2018

CHURCHILL MEDICAL SYSTEMS, INC., Plaintiff,
v.
WALKMED INFUSION, LLC, Defendant.

          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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