Skycam, LLC v. Bennett
| Decision Date | 24 November 2014 |
| Docket Number | Case No. 09–CV–294–GKF–FHM. |
| Citation | 62 F.Supp.3d 1261 |
| Court | U.S. District Court — Northern District of Oklahoma |
| Parties | SKYCAM, LLC, a Delaware Limited Liability, company, Plaintiff, v. Patrick J. BENNETT, an Individual, and Actioncam, LLC, an Oklahoma Limited Liability Company, Defendants. |
Rachel Blue, Charles Greenough, McAfee & Taft, Tulsa, OK, John A. Kenney, Spencer Freeman Smith, Jeremiah Louis Buettner, McAfee & Taft, Oklahoma City, OK, for Plaintiff.
John Tehranian, One LLP, Newport Beach, CA, Mark George Kachigian, Shawn Michael Dellegar, Head Johnson & Kachigian, John A. Kenney, Spencer Freeman Smith, Jeremiah Louis Buettner, McAfee & Taft, Oklahoma City, OK, Rachel Blue, McAfee & Taft, Mark Alan Craige, Crowe & Dunlevy, Tulsa, OK, for Defendant.
Patrick J. Bennett, Broken Arrow, OK, pro se.
Before the court is the Motion to Recall and to Quash Plaintiff Skycam, LLC's Writ of Execution [Dkt. # 442] filed by defendant Patrick J. Bennett (“Bennett”), the Report and Recommendation of Magistrate Judge T. Lane Wilson [Dkt. # 459] on the motion and the Objections to Magistrate Judge's Report and Recommendation [Dkt. # 461] filed by Bennett.
In this case, Skycam, LLC (“Skycam”) has judgments against Bennett totaling $2,584,000.00. Skycam became aware that on April 12, 2014, Bennett had registered a new domestic limited liability company named Supracam, LLC, filing # 3512448635, and had plans, under the name of Supracam, to develop new designs for a 4 point aerial camera system; a two point camera system which can turn a corner; and a robotic arm camera system for basketball, which could support multiple angles from the backboard. . It sought and was granted a Writ of Execution on:
Any and all intellectual property in which Bennett claims any interest, including without limitation intellectual property relating to any of the following: (1) a 4 point aerial camera system; (2) a two point camera system which can turn a corner; or (3) a robotic arm camera system for basketball supporting multiple angles from the backboard.
[Dkt. # 440 at 1–2, Dkt. # 441]. The application defines intellectual property as:
... any and all drawings, notes, plans, designs, renderings, computer files, memoranda, work product, books and records, records of experiments, models, mock-ups, patents, patent applications, draft patent applications, or other written, electronic, or other physical manifestation of any kind, including all draft, preliminary, interim, provisional, and/or final versions of any of the above, containing or reflecting such intellectual property.
In his Motion to Quash, Bennett asserted that the writ may not be used against intellectual property. [Dkt. # 442 at 2–3]. The Magistrate Judge found, however, that the writ covers intellectual property, and recommended denial of Bennett's motion. Bennett timely filed his objection to the Report and Recommendation.
Under Fed.R.Civ.P. 72(b)(3), the court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” See also 28 U.S.C. § 636(b)(1).
Skycam's efforts to collect its judgments against Bennett are governed by Fed.R.Civ.P. 69(a), which provides that a money judgment in federal court may be enforced by a writ of execution, the procedure of which “must accord with the procedure of the state where the court is located.” Accordingly, the court looks to Oklahoma statutory law.
Bennett asserts that under Okla. Stat. tit. 12, § 733, execution against intellectual property is excluded. That statute provides:
Okla. Stat. tit. 12, § 733. While it is true that the statute does not explicitly list intellectual property, an examination of Oklahoma statutes, including those specifically addressing writs of execution (Chapter 13 of Title 12 of the Oklahoma Statutes (§§ 731 –909 )), and Oklahoma case law interpreting the statutes, does not support Bennett's position.
Under Oklahoma law, “personal property” includes “money, goods, chattels, things in action and evidences of debt.” 25 Okla. Stat. tit. 25, § 6. Further, Okla. Stat. tit. 12, § 841 provides:
(emphasis added). Under Oklahoma law, “[e]very kind of property that is not real is personal.” Okla. Stat. tit. 60, § 9. “Personal property” includes “money, goods, chattels, things in action and evidences of debt.” Okla. Stat. tit. 25, § 26.
Oklahoma courts have broadly construed the statutes in determining the scope of “personal property.” See First Pryority Bank v. Moon, 326 P.3d 528, 538 (Okla.Civ.App.2013) (); Bowles v. Goss, 309 P.3d 150, 157 (Okla.Civ.App.2013) (); Indian Land & Trust Co. v. Owen, 63 Okla. 127, 162 P. 818, 822 (1916) ().
The court has found no Oklahoma cases specifically addressing whether intellectual property is personal property subject to writs of execution. However, intellectual property—like choses in action, notes, stocks and bonds—is a type of intangible property. See Black's Law Dictionary, 10th ed.2014. Further, as previously noted, under the Oklahoma statutes, “any property of the judgment debtor, including any equitable interest he may have, unless by law expressly excluded from being reached by creditors shall be subject to the payment of such judgment.” Okla. Stat. tit. 60, § 9. The statutes contain no express exclusion of intellectual property. Therefore, the court concurs with the Magistrate Judge's finding that a judgment creditor in Oklahoma has the right to execute on a judgment debtor's intellectual property in an effort to satisfy a judgment.
Bennett relies on Ager v. Murray, 105 U.S. 126, 26 L.Ed. 942 (1881) to support his contention that a debtor's interest in patent rights cannot be taken on execution at law.1 Ager, however, predates Rule 69. And the court agrees with the Magistrate Judge's observation that “during the past century the law has moved decidedly in the direction of allowing writs of execution for the purpose of compelling the involuntary transfer of intellectual property.” [Dkt. # 459 at 1266]. Additionally, and as pointed out by Skycam, there is no evidence Bennett has filed for or obtained a patent on the inventions at issue.
Accordingly, the court overrules Bennett's Objection to the Magistrate Judge's Report and Recommendation [Dkt. # 461]. The Report and Recommendation [Dkt. # 459] is adopted, and Bennett's Motion to Recall and to Quash Plaintiff Skycam, LLC's Writ of Execution [Dkt. # 442] is denied.
Before the undersigned for a report and recommendation is Defendant Bennett's Motion to Recall and to Quash Plaintiff Skycam's Writ of Execution. (Dkt. 442). Bennett's motion asks the Court to set aside and quash a Writ of Execution requested by plaintiff and issued by the Court Clerk. (Dkts. 440, 441). In its Application for Writ, plaintiff requested a writ of execution against any intellectual property owned by Bennett. (Dkt. 440). The writ issued by the Court Clerk (the “Writ”) directs the United States Marshal to execute on “the goods and chattels, lands and tenements in [the United States District Court for the Northern District of Oklahoma] belonging to: Patrick J. Bennett.” (Dkt. 441).
The question presented by Bennett's motion is whether the Writ may be used against his intellectual property. (Dkt. 442 ¶ 6). Bennett argues that it cannot and relies on the general Oklahoma levy and execution statute, which does not specifically refer to intellectual property. Okla. Stat. tit. 12, § 733 (). Bennett also cites three U.S. Supreme Court cases, one Massachusetts case from the 1800s, and one Virginia case from 1949 for the proposition that intellectual property cannot be taken via a levy or writ. Stephens v. Cady, 55 U.S. 528, 531, 14 How. 528, 14 L.Ed. 528 (1852) (addressing copyrights); Stevens v. Gladding, 58 U.S. 447, 451, 17 How. 447, 15 L.Ed. 155 (1854) (); Ager v. Murray, 105 U.S. 126, 130, 26 L.Ed. 942 (1881) (addressing patent rights); Carver v. Peck, 131 Mass. 291, 292 (1881) (); Stutzman v. C.A. Nash & Son, Inc., 189 Va. 438, 446, 53 S.E.2d 45, 49 (1949). Skycam counters that Oklahoma law contains many instances in which it allows property that is not specifically identified in Section 733 to be the subject of execution, including equitable rights. (Dkt. 449 ¶ 9). Skycam also cites Oklahoma's “Definitions and General Provisions” statute, which defines “personal property” broadly to include “money, goods, chattels, things in action and evidence in debt.” Okla. Stat. tit. 25, § 26.
Federal Rule of Civil Procedure 69 provides that “[t]he procedure on execution—and in proceedings supplementary...
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