Opinion
Case No. C07-5342FDB.
February 12, 2009
HIMC Corporation moves to revise the Court's Order Denying Plaintiff's Motion for Contempt (Dkt. # 123) pending action of the Ninth Circuit Court of Appeals on the Individual Defendants' Motion for Stay filed in that court. HIMC asks that this Court to "suspend" rather than "deny" the motion for contempt pending the Ninth Circuit's action, which would make it easier, procedurally, than having to file a new motion.
The Ninth Circuit, noting that the order challenged on appeal did not dispose of the entire case, requested that appellants (Individual Defendants) either move for voluntary dismissal of their appeal or show cause why it should not be dismissed for lack of jurisdiction.
If the present appeal is dismissed, the matter will be back in this court for complete adjudication. The Court's Order entered November 25, 2008 would be in force and require return of the subject securities. Once this case is completely adjudicated, Individual Defendants would be subject to HIMC reasserting its motion for sanctions if the stock certificates are not returned, unless there is an appeal and a motion for stay in the Ninth Circuit Court of Appeals.
ACCORDINGLY, IT IS ORDERED: Plaintiff HIMC's Motion for Reconsideration or revision of January 27, 2009 Order Denying Motion for Contempt [Dkt. # 125] is GRANTED, and HIMC's Motion for Sanctions re Surrender of Securities [Dkt. # 117] is SUSPENDED pending action by the Ninth Circuit on the pending motion for a stay.