Case 5:18-md-02834-BLF Document 661 Filed 04/26/21 Page 1 of 5
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`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
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`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`MELANIE L. MAYER (admitted pro hac vice)
`mmayer@fenwick.com
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`RAVI R. RANGANATH (CSB No. 272981)
`rranganath@fenwick.com
`CHIEH TUNG (CSB No. 318963)
`ctung@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
`
`Counsel for AMAZON.COM, INC.,
`AMAZON WEB SERVICES INC., and
`TWITCH INTERACTIVE, INC.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`IN RE: PERSONALWEB TECHNOLOGIES,
`Case No.: 5:18-md-02834-BLF
`LLC ET AL., PATENT LITIGATION,
`
`Case No.: 5:18-cv-00767-BLF
`Case No.: 5:18-cv-05619-BLF
`EX PARTE APPLICATION OF
`AMAZON.COM, INC., AMAZON WEB
`SERVICES, INC., AND TWITCH
`INTERACTIVE, INC. FOR AN ORDER
`THAT JUDGMENT DEBTOR
`PERSONALWEB TECHNOLOGIES,
`LLC APPEAR FOR EXAMINATION
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`Dept:
`Courtroom 3, 5th Floor
`Judge:
`Hon. Beth L. Freeman
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`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`AMAZON AND TWITCH EX PARTE APPLICATION
`REQUESTING ORDER TO APPEAR FOR EXAMINATION
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`1
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`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 661 Filed 04/26/21 Page 2 of 5
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`Pursuant to Fed. R. Civ. P. 69(a)(2) and Cal. Civ. Proc. Code § 708.110(a), Amazon.com,
`Inc., Amazon Web Services, Inc., and Twitch Interactive, Inc. (collectively, “Amazon”) respect-
`fully apply ex parte to take the examination of judgment debtor PersonalWeb Technologies, LLC.
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`I.
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`MEMORANDUM OF POINTS AND AUTHORITIES
`BACKGROUND
`On March 2, 2021, the Court awarded Amazon $4,615,242.28 in attorney fees and
`$203,300.10 in non-taxable costs. (Dkt. 648.) That award serves as a judgment without the need
`for the Court or clerk to enter a separate document. Fed. R. Civ. P. 58(a)(3). On March 31, 2021,
`PersonalWeb noticed its appeal of the award. (Dkt. 653.) On April 1, 2021, the automatic 30-day
`stay of enforcement of the judgment expired. Fed. R. Civ. P. 62(a). The Court later granted an
`additional $571,961.71 in attorney fees and $11,120.97 in non-taxable costs in a separate order.
`(Dkt. 656.)
`PersonalWeb has not paid the judgment or posted a supersedeas bond to secure the judg-
`ment and stay enforcement. See Fed. R. Civ. P. 62. Nearly a month ago, Amazon asked Personal-
`Web’s counsel of record whether PersonalWeb would post a bond. (Dkt. 659-1 [Ex. A. (3/31/21
`email string between T. Gregorian and J. Gersh)].) PersonalWeb’s counsel responded by stating
`that PersonalWeb “is considering its options,” and inviting Amazon to follow up with him by the
`next week. (Id.) Amazon did so on April 17, 2021, seeking to meet and confer about securing the
`judgment, and asking whether PersonalWeb has sufficient funds to satisfy the judgment or has other
`assets to secure it. (Id.) PersonalWeb did not provide any information in response to this request.
`Deposition testimony from PersonalWeb’s principal, Kevin Bermeister, indicates that PersonalWeb
`was never capitalized adequately to cover that liability. (Dkt. 659-2 [Ex. B (8/22/19 Bermeister
`Dep.)] at 181:2-182:5.) Given this testimony and the silence from PersonalWeb’s counsel, Amazon
`became concerned that PersonalWeb intends never to pay the Court’s judgment and yet will con-
`tinue to drive up costs pursuing its multiple appeals.
`On April 19, Amazon served interrogatories and requests for production of documents un-
`der Fed. R. Civ. P. 69, Cal. Civ. Code §§ 708.020 and 708.030, seeking information about Person-
`alWeb’s assets in aid of enforcement, and followed up again with PersonalWeb’s counsel as to how
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`AMAZON AND TWITCH EX PARTE APPLICATION
`REQUESTING ORDER TO APPEAR FOR EXAMINATION
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`2
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`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 661 Filed 04/26/21 Page 3 of 5
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`it would secure the judgment. PersonalWeb’s attorneys from Stubbs Alderton & Markiles LLP
`remain counsel of record but have taken the position that they do not represent PersonalWeb with
`respect to any part of this case concerning Amazon’s attempts to secure or enforce the judgment
`(what they term “post-judgment proceedings”) and therefore Amazon has “no authority” to serve
`them with case documents to the extent they concern those issues. (Dkt. 659-1 [Ex. A] (see April
`22, 2021 email from J. Gersh).)
`On April 21, Amazon gave PersonalWeb notice of its intention to file this ex parte applica-
`tion for a debtor’s examination. (Declaration of Todd R. Gregorian (“Gregorian Decl.”) ¶ 5.) Per-
`sonalWeb has not indicated its position.
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`II.
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`ARGUMENT
`Amazon, the judgment creditor, requests that the Court grant its request for PersonalWeb,
`the judgment debtor, to appear for an examination and provide information to enable Amazon to
`secure the Court’s judgment pending resolution of PersonalWeb’s appeals.
`Under Fed. R. Civ. P. 69(a)(2), a judgment creditor “may obtain discovery from any per-
`son—including the judgment debtor—as provided in these rules or by the procedure of the state
`where the court is located.” Under California law, a judgment creditor is permitted broad discovery
`into the finances and assets of the judgment debtor, including any information that identifies or
`could lead to the discovery of executable assets. Cal. Civ. Proc. Code § 708.110 (judgment debtor
`examination); see SCC Acquisitions, Inc. v. Super. Ct., 243 Cal. App. 4th 741, 756 (2015) (doubts
`about relevance generally resolved in favor of permitting discovery in judgment debtor examina-
`tion).
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`A “judgment creditor may apply to the proper court for an order requiring the judgment
`debtor to appear before the court . . . at a time and place specified in the order, to furnish information
`to aid in enforcement of the money judgment.” Cal. Civ. Proc. Code § 708.110(a); see also Hooser
`v. Super. Ct., 84 Cal. App. 4th 997, 1002 (2000) (“Pursuant to the statutory procedure, the judgment
`creditor may obtain an order requiring the judgment debtor to appear before the court, or a court-
`appointed referee, to furnish information that will aid in the enforcement of the money judg-
`ment. . . . A judgment debtor examination is intended to allow the judgment creditor a wide scope
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`AMAZON AND TWITCH EX PARTE APPLICATION
`REQUESTING ORDER TO APPEAR FOR EXAMINATION
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`3
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`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 661 Filed 04/26/21 Page 4 of 5
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`of inquiry concerning property and business affairs of the judgment debtor.”), disapproved on other
`grounds by Williams v. Super. Ct., 3 Cal. 5th 531 (2017); see also Troy v. Super. Ct., 186 Cal. App.
`3d 1006, 1014 (1986) (“the purpose of a judgment debtor examination is to leave no stone unturned
`in the search for assets which might be used to satisfy the judgment”).
`The proper court for an examination of the debtor is the court in which the money judgment
`is entered. Cal. Civ. Proc. Code § 708.160(a); see also Moore v. Chase, Inc., No. 1:14-CV-01178-
`SKO, 2016 WL 4548751, at *2 (E.D. Cal. Sep. 1, 2016) (granting application for debtor’s exami-
`nation where the judgment was entered by the district court).
`If the judgment creditor has not examined the judgment debtor in the 120 days preceding
`the ex parte application, “the court shall make the order upon ex parte application of the judgment
`creditor.” Cal. Code Civ. P. § 708.110(b). The debtor’s examination may also result in an order
`requiring the debtor’s non-exempt property and assets be applied to satisfy the money judgment:
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`(a) Except as provided in subdivision (b), at the conclusion of a proceeding pursuant
`to this article, the court may order the judgment debtor's interest in the property in
`the possession or under the control of the judgment debtor or the third person or a
`debt owed by the third person to the judgment debtor to be applied toward the satis-
`faction of the money judgment if the property is not exempt from enforcement of a
`money judgment. Such an order creates a lien on the property or debt.
`Id. § 708.205(a). The procedures provided by Section 708 reflect California’s legislative intent to
`allow judgment creditors a “speedy and inexpensive means . . . to obtain priority over other credi-
`tors.” In re Hilde, 120 F.3d 950, 954 (9th Cir. 1997) (citation omitted).
`Here, Amazon has obtained final judgment against PersonalWeb, and the automatic stay of
`enforcement expired nearly a month ago. PersonalWeb has not satisfied any portion of that judg-
`ment; nor has it posted a supersedeas bond; nor has it informally provided information about its
`accounts and assets in response to Amazon’s requests; nor has it conferred with Amazon on these
`issues despite repeated requests. (Gregorian Decl. ¶ 4.) Moreover, Mr. Bermeister’s testimony
`indicates a real possibility of undercapitalization, if not insolvency, and raises the prospect that if
`not secured now, Amazon will never be able to collect. (Id.) PersonalWeb’s evasions are particu-
`larly concerning given the amount of the judgment at issue. See Smagin v. Yegiazaryan, No. 2:14-
`CV-09764-R, 2016 WL 11676607, at *3 (C.D. Cal. Nov. 14, 2016) (granting preliminary injunction
`AMAZON AND TWITCH EX PARTE APPLICATION
`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
`REQUESTING ORDER TO APPEAR FOR EXAMINATION
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 661 Filed 04/26/21 Page 5 of 5
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`to freeze assets where the defendant declined to post bond pending an appeal and there was an
`established “pattern of avoidance and concealment” regarding his assets), aff’d, 733 F. App’x 393
`(9th Cir. 2018).
`Amazon therefore requests that this Court order PersonalWeb to appear for a debtor’s ex-
`amination to take place within the next 60 days in order to allow for personal service of the order
`as required by California Code of Civil Procedure § 708.110(d). Amazon has not examined Per-
`sonalWeb in the preceding 120 days and thus request that the Court issue this order ex-parte. (Gre-
`gorian Decl. ¶ 4.)
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`III. CONCLUSION
`For the foregoing reasons, Amazon respectfully requests that the Court grant this applica-
`tion and order PersonalWeb to appear for a debtor’s examination within 60 days.
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`April 26, 2021
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`Respectfully submitted,
`FENWICK & WEST LLP
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`
`By:
`TODD R. GREGORIAN (CSB No. 236096)
`Counsel for AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`TWITCH INTERACTIVE, INC.
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`AMAZON AND TWITCH EX PARTE APPLICATION
`REQUESTING ORDER TO APPEAR FOR EXAMINATION
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`5
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`CASE NOS.: 5:18-md-02834-BLF;
`5:18-cv-00767-BLF; 5:18-cv-05619-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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