[00:00:02] Speaker 02: OK, thank you for negotiating a good solution to our argument. [00:00:06] Speaker 02: We appreciate that very much. [00:00:08] Speaker 02: And let's go ahead and get started. [00:00:11] Speaker 02: This is 23-6125 and 24-6006, Universitas Education versus Avon Capital. [00:00:22] Speaker 02: And I think Mr. Sandberg is first. [00:00:27] Speaker 03: You may proceed. [00:00:28] Speaker 03: Thank you very much. [00:00:30] Speaker 03: May it please the Court? [00:00:31] Speaker 03: Good morning. [00:00:32] Speaker 03: I'd like to start out by saying it's very much an honor for me to be here. [00:00:36] Speaker 03: I also want to thank the Court for giving us extra time, since oral arguments are being consolidated. [00:00:43] Speaker 03: And additionally, I'd like to reserve four minutes. [00:00:49] Speaker 03: Much of what we're going to talk about today, and I'd like to focus on jurisdiction largely, [00:00:54] Speaker 03: and rely on our briefing for the issues that are not reached. [00:00:59] Speaker 03: But when we think about a jurisdiction, there's two related concepts. [00:01:04] Speaker 03: The first is the mandate rule, which is that the district court must comply with the mandate. [00:01:10] Speaker 03: And that is a corollary to the law of the case. [00:01:13] Speaker 03: And so we expect the district court to, frankly, obey and carry forward [00:01:20] Speaker 03: with this court's prior ruling from August of 2023. [00:01:23] Speaker 03: And that's going to run through a lot of the discussion today. [00:01:31] Speaker 03: Additionally, when we look at issue number one, this court did not issue its mandate in the first appeal until September 2023. [00:01:39] Speaker 03: The district court issued orders before that. [00:01:46] Speaker 03: And the case law is very clear that [00:01:49] Speaker 03: It is the issuance of the mandate that transfers jurisdiction from this court back to the district court. [00:01:57] Speaker 03: And because the district court lacked jurisdiction, because the mandate had not yet issued, those orders issued before the mandate are void. [00:02:06] Speaker 02: How do you address the argument that the district court retained jurisdiction to effectively modify an injunction under [00:02:17] Speaker 02: And that's what occurred here. [00:02:19] Speaker 02: It was a modification of its preliminary injunction, preventing the dissipation of assets, whatever. [00:02:25] Speaker 03: Well, the problem with that, Your Honor, is that the 2021 injunction and the orders that were issued after December 3, 2020, were clearly void. [00:02:37] Speaker 03: And so when this court issued its opinion, both in July and then in August, [00:02:42] Speaker 03: The court wasn't in a position to then enter an injunction. [00:02:47] Speaker 03: There were no claims before the court. [00:02:51] Speaker 03: The court lacked subject matter jurisdiction. [00:02:56] Speaker 02: But couldn't the party file something during that appeal period in the district court seeking a preliminary injunction in the first instance? [00:03:09] Speaker 03: Well, it wouldn't have been a preliminary injunction, Your Honor, because a judgment had been entered back in 2021. [00:03:14] Speaker 03: Now, this court held that the judgment was void. [00:03:19] Speaker 03: So it wasn't proper to enter a preliminary injunction at that point. [00:03:23] Speaker 03: There were no parties, and there were no claims. [00:03:25] Speaker 03: There were no pleadings. [00:03:27] Speaker 03: And there was no service on the appellants. [00:03:30] Speaker 03: So it was entirely improper for a number of reasons, Your Honor. [00:03:35] Speaker 03: So in any event, wrapping up the issue about the mandate not having been issued, the district court lacked jurisdiction because the mandate was an issue. [00:03:44] Speaker 04: I mean, what do you do with the idea, though, that the district court didn't actually do anything prior to the issuance of the mandate? [00:03:51] Speaker 04: I mean, maybe the district court made everybody come to court and a peer in the district court decided to enter [00:04:01] Speaker 04: non-effective order that was going to become effective upon issuance of the mandate. [00:04:08] Speaker 04: I mean, he didn't really violate the mandate. [00:04:11] Speaker 04: He didn't purport to do anything before the mandate issued. [00:04:15] Speaker 03: Well, if I may, Your Honor, actually the district court issued two orders. [00:04:20] Speaker 03: There was one that reinstated its prior injunction. [00:04:25] Speaker 03: And then in addition to that, [00:04:28] Speaker 03: shortly afterwards, ordered that the parties come to a status conference. [00:04:36] Speaker 04: But let me ask you about the first one. [00:04:37] Speaker 04: The first one was conditioned upon entry of the mandate. [00:04:42] Speaker 03: That's not my recollection. [00:04:44] Speaker 03: OK, so the second order. [00:04:48] Speaker 04: I mean, certainly he didn't condition the status conference or the pretrial conference or whatever you want to call it based on pending issuance of the mandate, did he? [00:04:58] Speaker 03: No, Your Honor, we were just called to court. [00:05:02] Speaker 03: But the problem became this, by reinstating the injunction at a time when the mandate had not yet issued. [00:05:12] Speaker 03: The district court lacked jurisdiction because the mandate hadn't yet issued. [00:05:16] Speaker 04: OK, I want you to assume something for me. [00:05:19] Speaker 04: Assume I'm right and you're wrong, and that he did. [00:05:24] Speaker 04: reinstate his prior orders subject to entry of the mandate. [00:05:29] Speaker 04: At that time, I mean, his reinstated orders had no effect on you. [00:05:35] Speaker 03: My recollection is that one order reinstated and was to be effective when the mandate issued. [00:05:44] Speaker 03: OK. [00:05:44] Speaker 03: I mean, that's the same thing, isn't it? [00:05:46] Speaker 04: I mean, it's nothing until the I'm reinstating my order, but it's not going to be effective until the mandate issues. [00:05:54] Speaker 03: Well, and if I may, Your Honor, that was the order that essentially entered judgment again. [00:05:58] Speaker 03: That was not the injunction order, as I remember it. [00:06:03] Speaker 05: So the August 7th order, he did not condition it. [00:06:09] Speaker 05: I think that's right. [00:06:10] Speaker 05: That is my recollection, Your Honor. [00:06:11] Speaker 05: And the 815 order is conditioned. [00:06:13] Speaker 03: That is my recollection, Your Honor. [00:06:17] Speaker 03: I am getting old. [00:06:17] Speaker 03: Sometimes my memory fails me. [00:06:23] Speaker 03: We then look at issue number two. [00:06:25] Speaker 03: And the prior order from this court held that there was no longer a case or controversy. [00:06:31] Speaker 03: The claims became moot December 3, 2020. [00:06:36] Speaker 03: And at that point in time, and this court also held at the time, that the district court lost subject matter jurisdiction. [00:06:48] Speaker 03: Well, if there's no longer a case or controversy, the claims are moved, the district court has lost subject matter jurisdiction. [00:06:56] Speaker 03: It's also lost personal jurisdiction. [00:07:00] Speaker 03: The appellants aren't even properly before the court. [00:07:04] Speaker 03: And nothing occurred afterwards to place the appellants before the court, just as nothing occurred afterwards to reinvest subject matter jurisdiction somehow in the district court. [00:07:16] Speaker 02: Well, there was the refiling of the judgment. [00:07:19] Speaker 03: Well, there was an attempt at your honor. [00:07:22] Speaker 03: And excuse me. [00:07:25] Speaker 02: I mean, just to add a little more depth to that, we're in a post-judgment proceeding. [00:07:32] Speaker 02: It's a collection action basically in federal court applying Oklahoma law. [00:07:39] Speaker 02: And I think if I understand your position correctly, [00:07:46] Speaker 02: There has to be a new case started and then a judgment filed in that case under Oklahoma law. [00:07:56] Speaker 02: And then what happened here was incorrect because you can't refile in a case where the jurisdiction's been eliminated by the mootness argument. [00:08:08] Speaker 03: Is that correct? [00:08:10] Speaker 03: That is correct, Your Honor. [00:08:11] Speaker 03: But if I may add to that, there's also a law of the case issue. [00:08:15] Speaker 03: on this particular argument. [00:08:18] Speaker 03: And the law of the case is this. [00:08:19] Speaker 03: In its August 2023 order, this court expressly refused to extrapolate, and I use the word extrapolate accurately. [00:08:29] Speaker 03: That's what that order says. [00:08:32] Speaker 03: Terracorp, the Terracorp opinion, to the facts of this case. [00:08:38] Speaker 03: And what we see in the Terracorp opinion out of the Oklahoma State Court system is that a judgment that was [00:08:44] Speaker 03: still a valid judgment in the jurisdiction where it was entered could be registered a second time and was registered a second time, but it was in a separate case. [00:08:56] Speaker 03: And so that was also similar, by the way, to the Yorkshire opinion. [00:08:59] Speaker 02: Is there any impediment to universitas commencing a new case and filing the judgment? [00:09:08] Speaker 03: My understanding is that the judgment itself is still a valid judgment under the laws of New York. [00:09:14] Speaker 03: It was issued in district court, but it was in the district court of the Southern District of New York. [00:09:18] Speaker 02: But basically, the district court would be starting from zero under that scenario? [00:09:25] Speaker 03: That's where all cases start, Your Honor. [00:09:29] Speaker 03: But I really do want to emphasize this. [00:09:32] Speaker 03: This court refused to extrapolate [00:09:34] Speaker 03: Terra Corp, and that is the law of the case here. [00:09:38] Speaker 04: I'm sorry, go ahead. [00:09:39] Speaker 04: No, you go ahead. [00:09:42] Speaker 04: We didn't refuse to say that it couldn't apply. [00:09:45] Speaker 04: We just didn't apply it in that case. [00:09:48] Speaker 03: It's the same case, Your Honor. [00:09:52] Speaker 04: But we really expressed no substantive opinion on that issue, did we? [00:09:58] Speaker 03: Well, I think you did, Your Honor, and here's why. [00:10:00] Speaker 03: Terra Corp, as I mentioned, the holding of Terra Corp [00:10:04] Speaker 03: affirmed the refiling in a second case. [00:10:09] Speaker 03: Universitas, in this case, was asking for validity to a refiling in the same case after the five-year window expired. [00:10:19] Speaker 03: And this court, by saying it refused to extrapolate tariff court, refused to give credence and any effect to the Universitas refiling. [00:10:32] Speaker 05: Well, TerraCorp and the other case that you cite, which was Yorkshire West, neither one of them even considered the issue that you're now asking us to decide, which is whether [00:10:43] Speaker 05: It has to be refiled in a separate case. [00:10:46] Speaker 05: It just so happened in both those cases, it was refiled. [00:10:49] Speaker 05: And in both of those cases, the courts focused on the fact that the big issue is, is this judgment still enforceable in the original state or originating state, which here is New York, and it's still clearly enforceable up to 20 years? [00:11:04] Speaker 05: That's the real issue. [00:11:05] Speaker 05: You don't cite any case law that I could see, and I didn't find any indicating that [00:11:10] Speaker 05: It absolutely has to be refiled in a separate case. [00:11:15] Speaker 05: And I'm not sure I would understand why it would need to be. [00:11:18] Speaker 03: Well, it would need to be, Your Honor, because once this court, when the cases became moot, and this court held the cases were moot. [00:11:29] Speaker 05: Well, we didn't say the cases were moot. [00:11:32] Speaker 05: I don't believe. [00:11:33] Speaker 05: We never said the case was moot. [00:11:34] Speaker 05: I thought we were pretty specific when we said it. [00:11:37] Speaker 05: that at the time of the decision in February 2021, due to the expiration of the judgment, the underlying dispute was moved. [00:11:49] Speaker 05: We didn't say you need to dismiss the case. [00:11:51] Speaker 05: We were very clear this isn't substantive ruling. [00:11:55] Speaker 05: I think it was pretty careful not to say that. [00:11:58] Speaker 03: Well, the prior order did not dismiss the case. [00:12:04] Speaker 05: In direct dismissal? [00:12:05] Speaker 03: Correct. [00:12:07] Speaker 03: But the court did hold that the district court lost subject matter jurisdiction. [00:12:13] Speaker 03: The claims became moot. [00:12:14] Speaker 03: Universitas no longer had a cognizable interest. [00:12:19] Speaker 03: And at that point, [00:12:21] Speaker 03: Appellants aren't before the court anymore because there's no claims against us So I think it was substantive your honor and that that is the law of the case here We're asking this panel to follow what was previously written so if you're right wouldn't We have remanded with instructions case be dismissed well without prejudice [00:12:45] Speaker 04: and not remand and send it back for further proceedings? [00:12:48] Speaker 03: Well, I think that there's more to it. [00:12:49] Speaker 03: And Your Honor, you were on that panel. [00:12:52] Speaker 03: So I think you know far better than I what that panel was thinking. [00:12:56] Speaker 04: Well, Judge McKay told me one time that the people who know the least about their case are the ones that were on the prior panel. [00:13:05] Speaker 03: And that's true. [00:13:05] Speaker 03: I would never say that. [00:13:08] Speaker 03: But I think in the context of what was occurring at the time, [00:13:11] Speaker 03: The universe has had filed, and it files this basically in almost all its motions, motions for sanctions. [00:13:19] Speaker 03: And it had two motions for sanctions that were pending. [00:13:23] Speaker 03: If I had a crystal ball here in front of me, I would anticipate that it would say, [00:13:30] Speaker 03: that this court did not dismiss because the district court still would have been in a position to rule on those motions for sanctions. [00:13:39] Speaker 03: One of those motions was withdrawn by the universitas and the other was denied by the district court. [00:13:46] Speaker 03: I have gone well over my time. [00:13:48] Speaker 03: Thank you very much. [00:13:49] Speaker 03: Thank you, counsel. [00:14:04] Speaker 01: May it please the court, Francis Schneider for Avon Capital of Wyoming Limited Liability Company, and Alan Roop, who's at council table to write. [00:14:15] Speaker 01: I have three issues I want to address while I'm up here. [00:14:19] Speaker 01: First is that when the judgment that was registered expired on December 3, 2020, the court lost personal jurisdiction over Avon Capital of Wyoming and [00:14:34] Speaker 01: the other individuals party to the case. [00:14:37] Speaker 01: The burden is on the party asserting personal jurisdiction and universitas, the appellee has not met its burden in showing that we are a party to this case. [00:14:48] Speaker 01: After the judgment was in on August 4 correctly, August 4, 2023, Avon capital Wyoming [00:14:55] Speaker 01: filed a limited entry of appearance for the sole purpose of challenging jurisdiction, which is why we're here today. [00:15:01] Speaker 01: So just to be clear, that wasn't an assertion or a voluntary appearance into the case after the August 2023 decision. [00:15:11] Speaker 01: The second item I want to address is appellants jointly briefed all issues in this consolidated appeal, except for the appeal that Avon Wyoming filed in response to the district court's modification [00:15:24] Speaker 01: of the injunction over Avon Capital Wyoming and Avon Capital Wyoming's interest in SDM holdings. [00:15:30] Speaker 01: And that has to do with a district court does not reacquire jurisdiction over matters involved in appeal until the circuit court has issued a mandate on those matters on the appeal. [00:15:41] Speaker 01: Applying that principle to this current consolidated appeal, the district court did not have jurisdiction necessary to modify the injunction [00:15:50] Speaker 01: over Avon Capital Wyoming and Avon Capital Wyoming's interest in March of this year. [00:15:57] Speaker 01: The third issue I want to hit on is the receivership. [00:16:01] Speaker 01: The jurisdiction issues we're discussing today in both of these consolidated appeals are, they permeate across both consolidated appeals. [00:16:10] Speaker 01: And so if the court finds in favor of appellants on those jurisdiction issues, then there's nothing to be resolved on the orders at issue. [00:16:20] Speaker 01: in this consolidated appeal pertaining to receivership, because there would be nothing more than advisory opinions. [00:16:29] Speaker 01: That's all I have, Your Honor. [00:16:30] Speaker 04: Let me ask you a question while you're up there. [00:16:32] Speaker 04: So we've had some cases, some of which involve minor children, where they were 16, 17 years old when a case was filed, class action type lawsuits. [00:16:45] Speaker 04: And the class representatives aged out, leaving no party [00:16:50] Speaker 04: available to pursue the case. [00:16:53] Speaker 04: And so there's no one with standing left to pursue a case. [00:16:58] Speaker 04: And the arguments come up, well, there's no standing. [00:17:02] Speaker 04: The case has to be dismissed. [00:17:04] Speaker 04: But we've allowed maneuvers for them to cure that by substituting in plaintiffs who were under the age of 18. [00:17:15] Speaker 04: For example, there are other instances, but this is an example. [00:17:19] Speaker 04: In this case, you have an expired judgment. [00:17:22] Speaker 04: By the way, I looked back at TerraCorp, and TerraCorp didn't say you could not refile a judgment. [00:17:28] Speaker 04: But this case had an expired judgment, presumably causing there to be the person pursuing it to have no standing. [00:17:42] Speaker 01: Do you agree with that? [00:17:43] Speaker 01: That's correct. [00:17:44] Speaker 04: Yeah. [00:17:44] Speaker 04: So I mean, why doesn't it revive the case if they just file a new judgment? [00:17:51] Speaker 04: I mean, because clearly, in some instances, we're not required to just dismiss it and make them start completely over. [00:17:57] Speaker 01: I want to point out two things in response to that, Your Honor. [00:18:01] Speaker 01: First is, once the court lost Article III jurisdiction, and the case was no longer live, and there was no live controversy, and it was moot, [00:18:13] Speaker 01: We believe at that point that there's nothing more to be determined in that case, in that case number. [00:18:18] Speaker 01: Because once you lose such amount of jurisdiction, you just magically regain it. [00:18:23] Speaker 05: The second thing I would say with respect to Terra Corp and Oklahoma- But we have, just as Judge Carson says, we actually have held, and so has the U.S. [00:18:31] Speaker 05: Supreme Court, that you can temporarily lose jurisdiction and regain it in the same action. [00:18:37] Speaker 05: We have held that. [00:18:39] Speaker 01: I would point to, with respect to applying, the procedure and execution applies to the state law. [00:18:46] Speaker 01: And here, Oklahoma's statutes have expressed provisions on how you re-register a judgment. [00:18:57] Speaker 01: But what I want to point to, actually, is after this court entered its August 4, 2023 order, Appellees Universitas [00:19:07] Speaker 01: actually sought to re-register the judgment in a new case, in a new case number. [00:19:12] Speaker 01: But they stopped short of that only because the district court decided to go ahead and re-enter all these orders, assuming it regained jurisdiction. [00:19:23] Speaker 04: What we point to- And so that case was administratively closed by the court, right? [00:19:30] Speaker 01: That I believe that may be the kit. [00:19:32] Speaker 01: Yes, your honor. [00:19:35] Speaker 04: Okay, but I'm gonna ask judge Tim Kovitz to indulge you with a little more time since I'm taking you to the end here. [00:19:40] Speaker 01: Absolutely, I'm here for you. [00:19:43] Speaker 04: So it seems to me that when you have a situation where another case is opened, they're going to file in that case the district court basically [00:19:53] Speaker 04: accepts the filing in the live case, or as you contend, the not live case, and then administratively closes the new case number, that it seems really form over function to pour them out on the basis that you suggest. [00:20:14] Speaker 01: Well, two things. [00:20:15] Speaker 01: First, I don't believe subject matter jurisdiction is a matter of form. [00:20:19] Speaker 01: I think that's a very important aspect of this. [00:20:22] Speaker 01: Once you lose it, you lose it. [00:20:25] Speaker 04: Well, how about this? [00:20:25] Speaker 04: You agree that if they would have filed it in the new case and everything would have been in the new case, that there would have been subject matter jurisdiction. [00:20:34] Speaker 04: You don't disagree with that, do you? [00:20:36] Speaker 01: Your Honor, had they properly followed the Oklahoma statute and properly registering the judgment with an authenticated version of it, [00:20:43] Speaker 01: and they properly serve the parties, and we don't party to the case, then yes, that road could be traveled. [00:20:52] Speaker 04: OK. [00:20:52] Speaker 04: So I mean, there is a bit of form to it. [00:20:54] Speaker 04: I mean, it's the same result. [00:20:58] Speaker 04: You get to the same place with the same steps. [00:21:02] Speaker 04: But in one case, the district court says, ah, don't worry about that other case you opened. [00:21:07] Speaker 04: We're just going to do it right here. [00:21:09] Speaker 04: And in this case, and in the other case, [00:21:12] Speaker 04: you would close out the case where you lost on appeal and just start fresh? [00:21:18] Speaker 01: I won't belabor the subject matter of jurisdiction, but I'm going to talk about personal for a moment then. [00:21:22] Speaker 01: As mentioned earlier, Avon Capital, Wyoming was no longer a party to that case the moment it lost. [00:21:28] Speaker 01: There was no longer Article III authority jurisdiction. [00:21:33] Speaker 01: Universitas has not attempted to serve, even in the same case or case number, if we're talking procedure, any party to be joined to the case [00:21:42] Speaker 01: And so there's there's no parties before that case once those claims became moot, and we're no longer live All right counsel. [00:21:52] Speaker 02: Thank you your time to expire mr.. Sandro. [00:21:54] Speaker 02: I'll give you a minute if you want it. [00:21:56] Speaker 02: Thank you all right. [00:21:56] Speaker 02: Let's hear from universitas Mr.. Karram [00:22:10] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:22:12] Speaker 00: My name is Joseph Karam, and I represent the petitioner appellee in this case, Universitas Education, LLC. [00:22:19] Speaker 00: For context, this is a long-running case that reaches numerous jurisdictions, and it involves Universitas's attempts to recover $30 million that was stolen by the convicted felon Daniel Carpenter with the aid of numerous shell companies. [00:22:33] Speaker 00: Among those shell companies was Avon Capital, LLC. [00:22:37] Speaker 00: In the case below, Universitas sought to garnish a insurance policy portfolio that was nominally owned by SDM Holdings LLC, which was purchased entirely with funds stolen from Universitas and transferred through Avon Capital for that purchase. [00:22:55] Speaker 00: Ultimately, as this court is aware, the district court's findings that all of the Avon entities alter egos of one another [00:23:06] Speaker 00: was ultimately vacated because the case had become moot at the time that the district court entered its February 11, 2021 order. [00:23:13] Speaker 00: Notably, however, Universitas has since refiled its judgment. [00:23:17] Speaker 00: It filed a notice of renewal in substantially the form prescribed under Oklahoma law, and it filed a separate case that was administratively closed afterwards. [00:23:28] Speaker 00: At that point, the district court reacquired jurisdiction and was able to continue the case and lead it to its ultimate end, which is where we intend to get to now. [00:23:37] Speaker 02: What do you think the best authority is for that point, that there was a successful revival of the case and jurisdiction was reacquired? [00:23:45] Speaker 00: Yes, Your Honor. [00:23:46] Speaker 00: We think that there's a couple interests here. [00:23:48] Speaker 00: The first is that Section 735 of Title XII of the Oklahoma statutes [00:23:57] Speaker 00: state that judgment may be renewed by refiling the judgment and by providing a notice of renewal, which is what occurred here. [00:24:05] Speaker 00: Second, we believe that Rule 69 specifically prescribes substantial compliance is sufficient in order to comply with state's procedural strictures. [00:24:16] Speaker 00: And there is ample case law to support that proposition. [00:24:19] Speaker 05: This isn't really about Oklahoma law and compliance. [00:24:24] Speaker 05: whether once you lose jurisdiction, you can reacquire it. [00:24:28] Speaker 02: In an Article III context. [00:24:29] Speaker 05: In an Article III context. [00:24:30] Speaker 02: And I want the best cases for that point, excuse me. [00:24:33] Speaker 02: Thank you. [00:24:34] Speaker 05: Thank you. [00:24:34] Speaker 05: Thank you. [00:24:35] Speaker 00: Yes, Your Honor. [00:24:36] Speaker 00: To the extent that there is an issue with respect to regaining Article III jurisdiction, we believe that the case of Mulaney versus Anderson is at least persuasive out of the United States Supreme Court. [00:24:46] Speaker 00: There, on appeal for the first time, the Supreme Court was [00:24:50] Speaker 00: alerted to the fact that the original plaintiffs in the case likely lacked standing to pursue the case, as they were only representatives of the actual parties in interest. [00:25:00] Speaker 00: Instead of dismissing the case and sending it back to the district court, the Supreme Court instead joined parties that it was certain had standing to pursue those claims at the appellate level. [00:25:11] Speaker 00: And when it did so, it noted that to send the case back to the district court [00:25:15] Speaker 00: And to redo all of the proceedings that had already come before would be a waste of judicial resources and would not make any sense in the larger context of getting the case to a conclusion. [00:25:26] Speaker 00: So we believe that that case is largely persuasive in this case. [00:25:31] Speaker 00: We also believe that the Federal Circuit case of Shriver Foods versus Beatrice Cheese contemplated a similar situation. [00:25:37] Speaker 00: In that case, a party originally had standing, Article III standing, and then it transferred its rights to a patent in a patent dispute. [00:25:45] Speaker 00: There, it ultimately regained the rights to those patents before entry of judgment. [00:25:50] Speaker 00: But there was a time where the Federal Circuit noted that they did not have standing. [00:25:55] Speaker 00: However, the Federal Circuit concluded that because they did ultimately reacquire standing through regaining the patent before final judgment, [00:26:04] Speaker 00: it was able to proceed, and the case was able to go to judgment. [00:26:07] Speaker 00: And here, because no final garnishment order has been entered, this case has not proceeded to its conclusion, despite the fact that there has been a modification of the ultimate Southern District of New York judgment to include the alter egos. [00:26:20] Speaker 05: Did our opinion, the second opinion in universe task two, where we modified the language, does our opinion leave room for what you're discussing now, which is to basically say, [00:26:34] Speaker 05: Well, maybe there was a lack of jurisdiction, but it was reacquired with the filing of the new registration. [00:26:42] Speaker 00: Yes, Your Honor, we believe that it does leave that room. [00:26:44] Speaker 00: Specifically, the new judgment that vacated the July 13th judgment, which was filed on August 4th, noted that it was only the February 11th, 2021 order that was vacated, and specifically remanded the case for further proceedings. [00:27:02] Speaker 00: We note that in Solid FX versus Jefferson, this court found that unless discretion is specifically cabined, [00:27:10] Speaker 00: a court is free to continue to conduct proceedings consistent with an opinion rendered by an appellate court, which is precisely what happened here. [00:27:19] Speaker 00: It did, in fact, find that that February 11, 2021 order was vacated. [00:27:25] Speaker 00: It further found that as a result of mootness, the first receivership was also properly vacated. [00:27:32] Speaker 00: And so ultimately, the court did comply with the exact requirements in the August 4th decision. [00:27:39] Speaker 00: And we believe that, yes, that decision did leave room open for further proceedings. [00:27:45] Speaker 00: And indeed, it did remand for further proceedings. [00:27:48] Speaker 02: The Munsinger, the Supreme Court case in Munsinger suggests in a mootness context that dismissals the way to go. [00:27:56] Speaker 00: Yes, I believe the specific language in Montsiguere is that it is customary to dismiss at the time that it is found to be moot. [00:28:04] Speaker 00: However, that is sui generalis. [00:28:07] Speaker 00: There is no language in Montsiguere that says it must always happen. [00:28:13] Speaker 00: courts that have looked at Montseguerre, including Hirshfield, note that yes, that is generally what must happen. [00:28:20] Speaker 00: However, there is no strict holding in Montseguerre that says it always must be dismissed and that the entire case must be dismissed. [00:28:29] Speaker 00: And as Universitas has noted and this court has noted, [00:28:32] Speaker 00: there are circumstances in which issues with standing may be cured. [00:28:38] Speaker 00: And we believe that as a result, that's what happened here, and it was possible to continue the case forward. [00:28:42] Speaker 04: Tell us the timeline of the separate case that got filed. [00:28:46] Speaker 04: So there's a separate case that gets filed. [00:28:48] Speaker 04: Nothing's ever done with it. [00:28:50] Speaker 04: It ends up being closed out because the district court proceeds in the other action. [00:28:55] Speaker 04: Tell us the timeline and sort of the sequence of events of how all that happens. [00:29:00] Speaker 00: Your honor, it's an exceedingly short timeline. [00:29:03] Speaker 00: On August 15th, 2023, Universitas [00:29:06] Speaker 00: initiated a new proceeding, a new miscellaneous proceeding for a foreign judgment in the District of Oklahoma the same day that we had the hearing in which the court preliminarily read it. [00:29:16] Speaker 00: Did you file the judgment in that case? [00:29:18] Speaker 00: Yes, we filed a copy of the judgment. [00:29:20] Speaker 00: And in fact, we filed a new copy of the judgment that had recently been signed by the clerk of the Southern District of New York. [00:29:28] Speaker 00: It had been signed, I believe, on August 11th or something to that effect. [00:29:32] Speaker 00: So we filed a brand new judgment that had recently been signed in that proceeding. [00:29:39] Speaker 00: And during arguments at the hearing on August 15th, Universitas specifically noted that to the court. [00:29:46] Speaker 04: So it's the same day. [00:29:47] Speaker 04: It's happening the same day. [00:29:48] Speaker 00: You file a new case, then you go to your hearing. [00:29:51] Speaker 00: Yes. [00:29:52] Speaker 00: And on that same day, after the hearing, that case was administratively dissolved. [00:29:57] Speaker 00: We suspect in light of the finding that the district court found that it could properly require subject jurisdiction in the same case as a result of the fact that TerraCorp holds no explicit requirement that a case be filed in a different case. [00:30:14] Speaker 00: And the district court declined. [00:30:15] Speaker 00: Universitas contends correctly to read one in. [00:30:18] Speaker 00: Did you ask that the two cases be consolidated? [00:30:21] Speaker 00: Universitas did note that to the extent [00:30:24] Speaker 00: that the other case would go forward, that it intended to consolidate those two cases. [00:30:29] Speaker 00: I believe that was on the record there. [00:30:32] Speaker 00: But yes, the intent was to consolidate those cases in order to, one, satisfy any potential requirements of renewal in a separate action, and two, in an attempt to ensure that all of the work that had been done in the previous case could potentially [00:30:50] Speaker 00: be noticed or a part of the new case, particularly in light of the fact that both Avon and SDM had more than a full and fair opportunity to litigate those issues, and they did not warrant being revisited. [00:31:03] Speaker 00: So Universitas does contend that under the totality of those circumstances, particularly the flexible procedures under Rule 69. [00:31:12] Speaker 00: Let me ask you a question. [00:31:14] Speaker 04: So just jumping back to this new case filing, [00:31:19] Speaker 04: Is the transcript of that hearing in our record? [00:31:24] Speaker 00: Yes, Your Honor. [00:31:25] Speaker 04: OK. [00:31:25] Speaker 00: Yes. [00:31:26] Speaker 00: And as I said, I do not recall specifically if consolidation was mentioned there, but I do believe that lead counsel for universitas did make at least a passing reference to the new proceeding and the intent to see if those two proceedings could be combined. [00:31:41] Speaker 00: But I would be happy to supplement or send a letter pointing specifically to any language to that effect to this court, if it so requires. [00:31:48] Speaker 00: I don't need it. [00:31:50] Speaker 00: Look it up myself. [00:31:52] Speaker 00: To the extent that appellants complain that the court lacks personal jurisdiction, we believe that that argument, too, is unavailing. [00:32:01] Speaker 00: First, the only real case law that they cite for that proposition is already versus Nike, which doesn't really include any kind of analysis with respect to personal jurisdiction. [00:32:11] Speaker 00: There, the court simply found that the case was moot because Nike had filed a covenant not to sue that effectively disposed of any claims that would be filed by already. [00:32:21] Speaker 00: And so they don't really provide any real [00:32:26] Speaker 00: case law to suggest that personal jurisdiction automatically goes away. [00:32:30] Speaker 00: To the extent that they claim that no further service was made, that's also not true. [00:32:37] Speaker 00: Universitas ultimately served a garnishy SDM and they accepted service on the docket with a separate garnishment summons. [00:32:47] Speaker 00: and that was while the receivership was pending. [00:32:50] Speaker 04: So this is electronic service like CMECF? [00:32:53] Speaker 04: Yes, Your Honor. [00:32:54] Speaker 04: So you file it, it's automatically served on their counsel? [00:32:58] Speaker 04: Yes. [00:32:59] Speaker 04: And I guess your definition of they accepted it is they didn't object? [00:33:04] Speaker 00: They actually specifically on the docket noted that they had accepted it. [00:33:08] Speaker 00: Okay. [00:33:09] Speaker 00: Yes. [00:33:09] Speaker 00: That happened to several months later. [00:33:11] Speaker 00: I believe that might have been in January of 2024. [00:33:14] Speaker 00: But yes, SDM did actually do that. [00:33:17] Speaker 00: And to the extent Avon Wyoming claims that the district court lacks jurisdiction over them, that argument is largely also unavailing. [00:33:24] Speaker 00: Hopper versus Wyant, this court's precedent specifically notes that a party may waive personal jurisdiction defenses. [00:33:32] Speaker 00: And while Avon Wyoming tries to hang its hat on the fact that it entered a limited appearance solely for the purpose of contesting jurisdiction, it has since sought more affirmative relief. [00:33:43] Speaker 00: For instance, it came in and sought the costs of the first receivership. [00:33:48] Speaker 00: It sought to invoke the court's power in order for it to get paid and for it to gain monetary value. [00:33:55] Speaker 00: Moreover, it contested Universitas' attempt to modify the injunction despite the fact that those modifications had nothing to do with Avon, Wyoming. [00:34:04] Speaker 00: And so we contend that by availing itself of the court's procedures in that way, that is sufficient for Universitas to meet its burden to demonstrate that the district court is properly subjecting Avon, Wyoming to personal jurisdiction. [00:34:18] Speaker 05: Can you repeat what you were arguing about Rule 69? [00:34:21] Speaker 05: Yes, Your Honor. [00:34:24] Speaker 00: Yes, Your Honor. [00:34:25] Speaker 00: Specifically, we cite to Rule 69 for largely two propositions. [00:34:31] Speaker 00: The first is to contest the idea that, under Oklahoma law, a renewal would have to happen in a different case, largely because Rule 69 permits substantial compliance with state procedural rules, as the Seventh Circuit found in Ruggiero and is this court actually considered in the case of McCarthy, where there was procedural ambiguity in Utah law as to [00:34:53] Speaker 00: whether or not a renewal of a judgment could happen in the same case. [00:34:57] Speaker 00: And the court in McCarthy said, well, in light of the fact that substantial compliance suffices, we can do it here. [00:35:04] Speaker 00: The second point is in a Rule 69 proceeding that the summary judgment proceedings that transpired [00:35:11] Speaker 00: were sufficient to protect the due process rights of both Avon and SDM. [00:35:18] Speaker 00: We believe that due process, and this goes to more of the substantive arguments unless this court has any further questions with respect to jurisdiction. [00:35:26] Speaker 04: The first argument you just made under Rule 69 is assuming [00:35:31] Speaker 04: that it was at least unclear whether you had to file in a new case? [00:35:36] Speaker 00: Yes, Your Honor. [00:35:37] Speaker 00: We believe that neither Terra Court nor Yorkshire mandate that, and that it was just a function of the facts of the case, specifically the debtor moving, that required filing in a new case. [00:35:47] Speaker 00: Yes. [00:35:49] Speaker 00: So if there's nothing further, we'd like to at least address some of the substance of the case, and specifically that the district court did not err when it found that Avon Capital, Wyoming, was an alter ego of the other [00:36:00] Speaker 00: Avon entities on summary judgment. [00:36:03] Speaker 00: Avon largely makes three arguments to contest this. [00:36:06] Speaker 00: The first is that it lacked due process in those proceedings. [00:36:10] Speaker 00: We believe that that argument is unavailing. [00:36:12] Speaker 00: First, they were the ones who put the alter ego at issue in their motion to intervene, where they specifically said, we are not an alter ego of these other entities. [00:36:25] Speaker 00: Certainly, they could have expected that that would become part of fact-finding or post-judgment determinations. [00:36:30] Speaker 00: Secondly, the cases that they cite, particularly Nichols versus Chesnoff, are inapposite. [00:36:36] Speaker 00: There, they cite that for the proposition that in order to satisfy due process rights, a separate case must be filed or a separate action or complaint must be filed. [00:36:46] Speaker 00: But in Nichols versus Chesnoff, an intervener came into a post-judgment garnishment proceeding contending that he had a right to some of the property at issue. [00:36:55] Speaker 00: The Chesnoff court, this court specifically found that that was not the case. [00:36:59] Speaker 00: In fact, they found that by intervening and then adjudicating his own rights as a result of that intervention, that suffice for due process considerations. [00:37:08] Speaker 00: To the extent they claim that summary judgment evidence submitted by universitas was insufficient, that argument also fails. [00:37:16] Speaker 00: They largely point to the fact that the district court judicially noticed facts from the prior cases. [00:37:23] Speaker 00: However, those were largely adjudicative facts in the first instance and would be subsumed by the doctrines of collateral estoppel res judicata. [00:37:31] Speaker 00: And that's particularly true in light of the fact that there is evidence that Avon Wyoming participated in that action. [00:37:37] Speaker 00: And that evidence is specifically that Avon Wyoming submitted a declaration from Daniel Carpenter [00:37:44] Speaker 00: signed in his capacity as chairperson of Caroline Financial Group. [00:37:49] Speaker 00: And Caroline Financial Group was only a member of Avon, Wyoming. [00:37:54] Speaker 00: And the facts on the record demonstrate that, specifically the documentary evidence attached to Universitas' motions for summary judgment, as well as its motion for post-judgment discovery. [00:38:05] Speaker 00: To the extent that they claim that the documents submitted were inadmissible, that is not a relevant consideration. [00:38:11] Speaker 00: This court in Bryant found that they need not be admissible so long as they can be presented in an admissible manner at trial, and they do not contest that that is possible. [00:38:20] Speaker 00: In the same way, they claim that Mr. Chernow lacked the ability to authenticate certain documents. [00:38:25] Speaker 00: But once again, Jefferies versus the Metropolitan Police of Las Vegas out of the Ninth Circuit counsels that so long as authentication can happen at trial, there is no error. [00:38:37] Speaker 00: And here, once again, they do not suggest that authentication is impossible, rather that it was not done at the summary judgment proceeding, which again is not necessary. [00:38:47] Speaker 00: And so the district court properly found that summary judgment in favor of universitas was appropriate, particularly due to the overwhelming evidence that was presented to it in documentary form. [00:39:01] Speaker 00: It correctly applied the standards elucidated in Greenhunter out of the Wyoming Supreme Court and specifically found that it would be unfair, inequitable, and unjust to respect the corporate facade [00:39:16] Speaker 00: of Avon, Wyoming. [00:39:18] Speaker 00: Perhaps the most significant factor in that is that SDM was allegedly purchased by Avon, Wyoming at a time when Avon, Wyoming was administratively dissolved and used entirely funds from Avon, Nevada. [00:39:32] Speaker 00: And there was no apparent transfer of property back from Avon, Wyoming. [00:39:38] Speaker 00: There was no consideration for those funds. [00:39:41] Speaker 00: They maintained a lot of their assets on the same general ledger. [00:39:45] Speaker 00: And all of these things taken together, in addition to the history of fraud in the case, largely point to the fact that the alter ego determination was proper, and that the district court did not abuse its discretion in the evidence that it considered. [00:39:59] Speaker 04: So I have a question about, there's an issue of discovery. [00:40:02] Speaker 04: Yes, Your Honor. [00:40:03] Speaker 04: That somehow the district court improperly denied discovery to your opposing party. [00:40:12] Speaker 00: What do you say about that? [00:40:14] Speaker 00: Your Honor, it did not. [00:40:16] Speaker 00: As Daniel J. Hartwig Associates versus Kanner points out, a party cannot claim that a district court improperly denied discovery when that party simply sat on their hands. [00:40:27] Speaker 00: And there were no changed circumstances. [00:40:29] Speaker 00: So we think there are two points at play here. [00:40:31] Speaker 00: First, they concede that they made the request for further discovery during summary judgment proceedings pursuant to Rule 5060. [00:40:39] Speaker 00: Rule 56D explicitly requires that that request be supported by affidavit or declaration. [00:40:44] Speaker 00: Universitas pointed out in its briefing that no such affidavit and no such declaration were filed, and that remains uncontested. [00:40:51] Speaker 00: So as a matter of procedure, they failed to meet the standard for requesting that supplemental discovery. [00:40:58] Speaker 00: The second point is that not only did they fail to do so on a procedural basis, but they had ample opportunity to seek discovery. [00:41:05] Speaker 00: Instead, they argued that any discovery, post-judgment discovery, violated due process, despite Rule 69's very explicit B provision that says that post-judgment discovery is appropriate in order to determine connections or who might have assets. [00:41:22] Speaker 04: So I'm guessing these objections came in response to you wanting discovery. [00:41:27] Speaker 04: from them? [00:41:28] Speaker 00: No, these objects, yes, yes, that was originally where those came from. [00:41:31] Speaker 04: And so they resisted discovery, and then later they wanted discovery under Rule 56C. [00:41:39] Speaker 00: The district court also pointed to the fact that Mr. Chernow had filed declarations before, particularly with respect to that motion for discovery, and they were on notice that [00:41:51] Speaker 00: something like that was likely to happen again, and they did not take advantage of the discovery proceedings in order to seek that discovery in a timely fashion. [00:41:59] Speaker 00: I see that I've run out of time. [00:42:00] Speaker 04: Can I ask him one more question? [00:42:01] Speaker 04: Yes, Your Honor. [00:42:02] Speaker 04: So just one more. [00:42:03] Speaker 04: Did you get discovery? [00:42:04] Speaker 00: When you asked for discovery, did you get it? [00:42:06] Speaker 00: Yes, Your Honor. [00:42:07] Speaker 00: The requests were limited to several depositions because we largely had the documentary evidence with a subpoena deus esticum. [00:42:14] Speaker 00: And so, yes, we were able to depose the parties we sought to depose and receive some documents from them. [00:42:20] Speaker 00: If I may just make one final point. [00:42:22] Speaker 00: Yes, they waived their arguments with respect to the propriety of receivership. [00:42:28] Speaker 00: They never addressed 12 Oklahoma 1551. [00:42:32] Speaker 00: below and now try to have their cake and eat it too by saying we did so at a time when the case was moot. [00:42:38] Speaker 00: And so the receivership is also proper and they cannot point to any abuse of discretion there. [00:42:44] Speaker 00: And for all these reasons, Universitas respectfully urges this court to affirm all of the court orders from the district court on appeal. [00:42:51] Speaker 00: Thank you. [00:42:51] Speaker 02: Thank you. [00:42:52] Speaker 02: Could you give Mr. Sandberg two minutes, please? [00:43:05] Speaker 03: Well, again, thank you very much for your generosity regarding time. [00:43:09] Speaker 03: There's just a few points here to make. [00:43:13] Speaker 03: We're asking the court to dismiss this case, or should it remand and instruct a district court to dismiss? [00:43:19] Speaker 03: And I would note that after remand from the August, 2023 order by this court, [00:43:29] Speaker 03: There were no pleadings. [00:43:30] Speaker 03: There have never been any pleadings. [00:43:32] Speaker 03: But all that a potential registration of the judgment accomplishes is it puts universitas in front of the district court. [00:43:41] Speaker 03: It doesn't put claims in front of the district court. [00:43:44] Speaker 03: It doesn't put parties in front of the district court. [00:43:46] Speaker 04: When this was going on, did you say, wait, judge. [00:43:49] Speaker 04: There are no pleadings. [00:43:51] Speaker 04: There's no complaints. [00:43:52] Speaker 04: There's no additional. [00:43:54] Speaker 04: There's no briefing. [00:43:56] Speaker 04: You're just adopting this stuff. [00:43:57] Speaker 04: We filed nothing. [00:43:58] Speaker 04: You've got to let us file some stuff. [00:44:00] Speaker 03: Absolutely, Your Honor. [00:44:01] Speaker 03: We filed motions to dismiss. [00:44:04] Speaker 03: So those were properly before the court, those issues. [00:44:07] Speaker 04: I mean, you filed most. [00:44:08] Speaker 04: Was it based on the fact that the district court didn't require the filing of anything new before he adopted it? [00:44:16] Speaker 03: Well, it was based upon the lack of subject matter jurisdiction and lack of personal jurisdiction. [00:44:21] Speaker 03: It wasn't a case of anything new being filed by universitas. [00:44:25] Speaker 04: OK, I'm just wanting to make sure, because it seemed just then like part of your argument was, wait a minute, the district court just did this. [00:44:31] Speaker 04: He didn't even give us a chance to file anything before he did it. [00:44:35] Speaker 03: No. [00:44:35] Speaker 03: The district court allowed us to file, and we did file motions to dismiss based upon [00:44:40] Speaker 03: lack of subject matter and lack of personal jurisdiction. [00:44:44] Speaker 03: And so those issues were properly before the court. [00:44:46] Speaker 03: And fundamentally, this becomes a due process issue if you're going to potentially hold, and I very much hope the court does not hold, that a mere registration of a judgment, revived claims, put parties before the district court. [00:45:06] Speaker 02: Go ahead and finish your part. [00:45:07] Speaker 03: Thank you very much. [00:45:09] Speaker 03: That's not how it works. [00:45:10] Speaker 03: I mean, the party that wants relief files something describing what it wants and why it's allowed to get that relief. [00:45:19] Speaker 03: It serves defendants or respondents. [00:45:22] Speaker 03: And then the case moves forward from there. [00:45:25] Speaker 03: A registration of a judgment by itself solely puts universitas in front of the court. [00:45:32] Speaker 03: And in fact, when they did try to re-register, [00:45:35] Speaker 03: They didn't file a certificate, which is part of the statutory requirement. [00:45:39] Speaker 03: On a related topic, I apologize. [00:45:44] Speaker 03: I do want to address the standing question. [00:45:46] Speaker 03: Yeah, go ahead and make that point and wrap up. [00:45:48] Speaker 03: I very much appreciate that, Judge. [00:45:50] Speaker 03: Thank you. [00:45:51] Speaker 03: This isn't strictly a loss of standing case or a patent case. [00:45:59] Speaker 03: Now, the patent case. [00:46:01] Speaker 03: stands on its own because there's law that states before judgment is issued, a loss of standing can be addressed. [00:46:13] Speaker 03: That's not the case here. [00:46:14] Speaker 03: It's not a patent case. [00:46:15] Speaker 03: When we look at the court's question regarding standing in a class action where the party rep has aged out, that is really more of a [00:46:33] Speaker 03: construct to accept that litigation in those cases takes a certain amount of time. [00:46:39] Speaker 03: And we all hope that people continue to get older over that time period. [00:46:44] Speaker 03: And so that's why the courts have allowed, in that very specific context, should someone age out, a substitution of parties. [00:46:53] Speaker 03: And the key is substitution of parties as a means of addressing loss of standing. [00:47:01] Speaker 03: That is not what we have here. [00:47:02] Speaker 03: This is not a substitution of parties. [00:47:05] Speaker 03: And it's not a temporary loss of standing. [00:47:08] Speaker 03: Universitas can put itself in front of the district court and has put itself in front of the district court. [00:47:14] Speaker 03: But that doesn't address the mootness. [00:47:16] Speaker 03: It doesn't address the Article III issue. [00:47:19] Speaker 03: I really do have to thank you for all your time today. [00:47:21] Speaker 03: Thank you. [00:47:22] Speaker 02: You're welcome, counsel. [00:47:22] Speaker 02: We appreciate the arguments. [00:47:24] Speaker 02: It's a very interesting and difficult case. [00:47:26] Speaker 02: You're excused. [00:47:27] Speaker 02: And the case is submitted.