Cambridge University Press, et al v. J.L. Albert, et al

Filing 38

RESPONSE to Motion to dismiss appeal for lack of jurisdiction filed by Appellees Mark P. Becker, J. L. Albert, Kenneth R. Bernard, Jr., Robert F. Hatcher and W. Mansfield Jennings, Jr. in 12-14676 [6689964-2], Motion to consolidate appeals filed by Appellees Mark P. Becker, J. L. Albert, Kenneth R. Bernard, Jr., Robert F. Hatcher and W. Mansfield Jennings, Jr. in 12-14676 [6689964-3] filed by Attorney John H. Rains, IV for Appellants Cambridge University Press, Oxford University Press, Inc. and Sage Publications, Inc.. (ECF: John Rains)

Nos. 12-14676-FF
_____________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
Cambridge University Press,
Oxford University Press, Inc.,
and Sage Publications, Inc.,
Plaintiffs-Appellants,
v.
Mark P. Becker, in his official capacity as
Georgia State University President, et al.,
Defendants-Appellees.
_____________________________________
On Appeal from the United States District Court
for the Northern District of Georgia
D.C. No. 1:08-cv-1425 (Evans, J.)
_____________________________________
APPELLANTS’ PARTIAL OPPOSITION
TO APPELLEES’ MOTION TO DISMISS OR CONSOLIDATE
__________________________________________________
Edward B. Krugman
John H. Rains IV
BONDURANT, MIXSON &
ELMORE, LLP
1201 West Peachtree Street NW
Suite 3900
Atlanta, Georgia 30309
Telephone: [phone]
Facsimile: [phone]

1017684.1

R. Bruce Rich (pro hac vice)
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Facsimile: [phone]
Attorneys for Appellants

CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
The following trial judges, attorneys, persons, associations of persons, firms,
partnerships, and corporations are known to have an interest in the outcome of this
case or appeal:
• Albert, J.L.
• Alford, C. Dean
• Askew, Anthony B., counsel for Appellees
• Association of American Publishers
• Banks, W. Wright, Jr., counsel for Appellees
• Bates, Mary Katherine, counsel for Appellees
• Ballard Spahr, LLP, counsel for Appellees
• Becker, Mark P.
• Bernard, Kenneth R., Jr.
• Bishop, James A.
• Bloom, Jonathan, counsel for Appellants
• The Board of Regents of the University System of Georgia
• Bondurant, Mixson & Elmore, LLP, counsel for Appellants
• Cambridge University Press
• Carter, Hugh A., Jr.
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• Cleveland, William H.
• Copyright Clearance Center
• Cooper, Frederick E.
• Ellis, Larry R.
• Eskow, Lisa R., counsel for Appellants
• Evans, Hon. Orinda D., United States District Judge
• Gentry, Robin L., counsel for Appellees
• Georgia State University
• Griffin, Rutledge A., Jr.
• Harbin, John Weldon, counsel for Appellees
• Hatcher, Robert F.
• Henry, Ronald
• Hopkins, C. Thomas, Jr.
• Hurt, Charlene
• Jennings, W. Mansfield, Jr.
• Jolly, James R.
• King & Spalding, LLP, counsel for Appellees
• Krugman, Edward B., counsel for Appellants
• Larson, Todd D., counsel for Appellants
1017684.1

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• Leebern, Donald M., Jr.
• Lerer, R.O., retired counsel for Appellees
• Levie, Walter Hill, III, counsel for Appellees
• Lynn, Kristen A., counsel for Appellees
• McKeon Meunier Carlin & Curfman, LLC
• McMillan, Eldridge
• Miller, Richard William, counsel for Appellees
• Moffit, Natasha Horne, counsel for Appellees
• NeSmith, William, Jr.
• Olens, Samuel S., counsel for Appellees
• Oxford University Press, Inc.
• Oxford University Press, LLC
• Oxford University Press USA
• Palm, Risa
• Patton, Carl. V.
• Poitevint, Doreen Stiles
• Potts, Willis J., Jr.
• Pruitt, Neil L., Jr.
• Quicker, Katrina M., counsel for Appellees
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• Rains, John H., IV, counsel for Appellants
• Rich, R. Bruce, counsel for Appellants
• Rodwell, Wanda Yancey
• SAGE Publications, Inc.
• Seamans, Nancy
• Schaetzel, Stephen M., counsel for Appellees
• Singer, Randi W, counsel for Appellants
• State of Georgia
• Stelling, Kessel, Jr.
• Tarbutton, Benjamin J., III
• Tucker, Richard L.
• The Chancellor, Masters and Scholars of the University of Oxford
• Walker, Larry
• Weil Gotshal & Manges, LLP, counsel for Appellants
• Whiting-Pack, Denise E., counsel for Appellees
• Wilheit, Philip A., Sr.
• Vigil, Allan
• Volkert, Mary Josephine Leddy, counsel for Appellees

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Plaintiffs-Appellants, Cambridge University Press, Oxford University Press,
Inc., and Sage Publications, Inc. (“Appellants” or “the publishers”), oppose
Appellees’ Motion to Dismiss or Consolidate (the “Motion”) to the extent it seeks
dismissal of the above-captioned appeal (No. 12-14676-FF). Appellants do not
oppose, and in fact support, Appellees’ alternative request to consolidate this
appeal with a second appeal in this matter (No. 12-15147-FF).
As further discussed below, this Court has jurisdiction over both appeals,
which concern a permanent injunction and award of attorneys’ fees and costs
issued in connection with a suit brought by the publishers against several GSU
officials and members of the Board of Regents of the University System of
Georgia in their official capacities, alleging unauthorized copying and distribution
of copyrighted academic works through a variety of university-controlled online
systems. Consolidation of the two appeals will serve all parties’ best interests and
will promote efficiency for the Court with one set of comprehensive briefs on both
the merits and the attorneys’ fees and costs issues.
PROCEDURAL BACKGROUND
On May 11, 2012, the Northern District of Georgia entered a 340-page
opinion granting in part and denying in part the injunctive and declaratory relief
sought by the publishers and directing the parties to submit briefing on the
proposed text of declaratory and injunctive relief and their respective requests for
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attorneys’ fees and costs. Dkt. No. 423. On August 10, 2012, the district court
issued its order on declaratory and injunctive relief, which also determined that the
GSU officials were prevailing parties entitled to an award of attorneys’ fees and
costs. Dkt. No. 441 (Motion Ex. B). The only remaining issue was the amount of
fees and costs. See id.
The publishers filed a notice of appeal on September 10, 2012. That appeal
was docketed in this Court as No. 12-14676-FF, and, on October 9, 2012, the Court
extended the deadline for Appellants’ brief to November 21, 2012. The Court also
granted Appellants’ Motion for Enlargement of the Permitted Words for
Appellants Opening Brief (filed October 3, 2012), setting a word limit of 18,000
for Appellants’ opening brief, 18,000 for Appellees’ brief, and 9,000 for
Appellants’ reply brief. See Order, dated October 11, 2012, in No. 12-14676.
On September 30, 2012, the district court signed an order determining the
amount of attorneys’ fees and costs to be awarded to the GSU officials and
directed the clerk to enter final judgment reflecting its prior declaratory- and
injunctive-relief rulings, as well as the court’s determination of attorneys’ fees and
costs. Dkt. Nos. 462, 463 (Motion Exs. D, F). 1 On October 2, 2012, the publishers
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In its September 30, 2012 order calculating the amount of attorneys’ fees and
costs to be awarded to Appellees, the district court stated that it “did not intend” its
August 10, 2012 order to be an appealable order and, regardless, would proceed
with awarding fees and costs notwithstanding the publishers’ prior notice of
appeal. Dkt. No. 462 at 4 n.2. Although the district court retained jurisdiction to
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filed a second notice of appeal from the September 30, 2012 order and judgment,
as well as from prior orders in the case including those listed in the publishers’
September 10, 2012 notice of appeal. Dkt. No. 465. The second appeal has been
docketed in this Court as No. 12-15147-FF, and the opening brief in that appeal
currently is due on November 14, 2012.
ARGUMENT
I.

THIS COURT HAS JURISDICTION OVER BOTH APPEALS.
Appellees’ motion to dismiss rests on the false premise that the district

court’s August 10, 2012 order provided only interlocutory, preliminary injunctive
relief and therefore was subsumed in the final judgment issued on September 30,
2012, which incorporated the district court’s prior rulings. See Motion at 4-6
(citing cases discussing the effect of a permanent injunction on an appeal of a
preliminary injunction). The district court’s August 10 order, however, granted in
part and denied in part a permanent injunction following a nearly four-week trial.2
The August 10 order disposed of all issues on the merits and even determined that
Appellees were the prevailing parties in the litigation (notwithstanding the fact that
assess fees and costs, it had no jurisdiction over merits issues concerning its
August 10 order.
2
As this Court has explained, a preliminary injunction is relief awarded “before the
entire case is fully and fairly heard,” whereas a permanent injunction is relief
awarded after trial on the merits. Alabama v. United States Army Corp. of Eng’rs,
424 F.3d 1117, 1128 (11th Cir. 2005). It is undisputed that the injunction set forth
in the August 10, 2012 order was awarded after a full trial on the merits.
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the district court enjoined their infringement of the publishers’ copyrights).
Accordingly, no preliminary or interlocutory injunctive relief is at issue in the
publishers’ appeal from the August 10 order, which challenges the limited scope of
the permanent injunction issued by the district court. Indeed, the only issue left
open by the August 10 order was the amount of fees and costs to be assessed
against the publishers.
It is well-established that an order that disposes of the merits in their entirety
and leaves open only a determination of attorneys’ fees and costs is a final and
appealable order in its own right. See, e.g. Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 199-200, 202-03 (1988) (“[A] decision on the merits is a ‘final
decision’ for purposes of [28 U.S.C.] § 1291 whether or not there remains for
adjudication a request for attorneys’ fees attributable to the case”); In re Atlas, 210
F.3d 1305, 1307 (11th Cir. 2000) (“[T]he Supreme Court has determined that
attorney’s fees issues are collateral to the merits, and therefore, a decision on the
merits is a ‘final judgment’ whether or not the assessment of attorney’s fees
remains to be resolved”) (citing Budinich, 486 U.S. at 200, 202-03); see also, e.g.,
Gnesys, Inc. v. Greene, 437 F.3d 482, 487-88 (6th Cir. 2005) (reaffirming that a
determination of attorneys’ fees is not part of the merits for purposes of
determining whether prior orders on compensatory damages and contempt were
final and appealable and dismissing appeals from prior orders as untimely when
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taken within 30 days after the attorneys’ fees order but more than 30 days after the
prior orders on damages and contempt). Accordingly, this Court has jurisdiction
over the publishers’ appeal from the August 10 order.
Appellees’ motion to dismiss is not only unsupported by law, but also of no
practical consequence. Appellees concede that dismissal of the publishers’ first
appeal would not substantively alter the issues before this Court, because the
September 30, 2012 order and judgment incorporated the district court’s prior
rulings from the August 10 order. See Motion at 6; see also Dkt. 462 at 11-12.
The September 30 order and judgment did not alter or supplement any prior rulings
on the merits but included a new ruling solely on the amount of fees and costs
awarded to Appellees. See Budinich, 486 U.S. at 199 (“A question remaining to be
decided after an order ending litigation on the merits does not prevent finality if its
resolution will not alter the order or moot or revise decisions embodied in the
order.”); compare Dkt. 441, with Dkt. 462. Appellees’ motion to dismiss,
therefore, asks this Court to expend resources on an empty exercise.
II.

THE COURT SHOULD CONSOLIDATE BOTH APPEALS.
Appellants join in Appellees’ alternative request to consolidate briefing on

the two appeals so that the Court receives one set of comprehensive briefs on both
the merits and the attorneys’ fees and costs issues. See Motion at 6-7. Appellants
propose that they brief all of the merits and attorneys’ fees-and-costs issues raised
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in both appeals by the November 21, 2012 deadline for their opening brief in the
first appeal.3 Additionally, if the Court orders consolidated briefing, Appellants
further agree to brief all issues from both appeals within the extended, 18,000word limit the Court has set for Appellants’ opening brief in the first appeal.
Respectfully submitted this 22nd day of October, 2012.
/s/ John H. Rains IV
Edward B. Krugman
[e-mail]
Georgia Bar No. 429927
John H. Rains IV
[e-mail]
Georgia Bar No. 556052
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree Street NW
Suite 3900
Atlanta, Georgia 30309
Telephone: [phone]
Facsimile: [phone]
R. Bruce Rich (pro hac vice)
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
Telephone: [phone]
Facsimile: [phone]
Attorneys for Appellants

3

Although the deadline for Appellants’ opening brief in the second appeal is
November 14, 2012. the Clerk has authority to grant an extension of 7 days, which
would create a deadline of November 21, 2012 in the second appeal. See 11TH
CIR. R. 31-2.
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CERTIFICATE OF SERVICE
I certify that I have this day caused a true and correct copy of
APPELLANTS’ PARTIAL OPPOSITION TO APPELLEES’ MOTION TO
DISMISS OR CONSOLIDATE to be served by United States mail on the
following counsel of record:
John W. Harbin, Esq.
Natasha H. Moffitt, Esq.
Mary Katherine Bates, Esq.
KING & SPALDING LLP
1180 Peachtree Street
Atlanta, Georgia 30309
Katrina M. Quicker, Esq.
Richard W. Miller, Esq.
BALLARD SPAHR, LLP
999 Peachtree Street, Suite 1000
Atlanta, Georgia 30309
Anthony B. Askew, Esq.
Stephen M. Schaetzel, Esq.
MCKEON, MEUNIER, CARLIN & CURFMAN, LLC
817 W. Peachtree Street, Suite 900
Atlanta, Georgia 30308
Mary Jo Volkert, Esq.
Assistant State Attorney General
40 Capitol Square
Atlanta, Georgia 30334
This 22nd day of October, 2012.
/s/ John H. Rains IV
John H. Rains IV
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