Peiker Acustic, Inc. et al v. Kennedy

Filing 186

ORDER for Entry of Amended Final Judgment. Order granting in part and denying in part 165 Motion to Amend. An Amended Final Judgment shall enter reflecting the disposition of the Peiker entities' defamation claims in favor of Mr. Kennedy, as well as the jury's verdict against Mr. Kennedy and in favor of Peiker on Mr. Kennedy's counterclaim for abuse of process by Judge John L. Kane on 06/22/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane

Civil Action No. 10-cv-02083-JLK
PEIKER ACUSTIC, INC. and
PEIKER ACUSTIC GMBH & CO. KG,
Plaintiffs/Counterclaim Defendants,
v.
PATRICK KENNEDY,
Defendant/Counterclaimant.

ORDER FOR ENTRY OF AMENDED FINAL JUDGMENT
Kane, J.
This matter is before me on Defendant Patrick Kennedy’s Motion to Amend Final
Judgment (Doc. 165). Besides correcting the Judgment to reflect the pretrial disposition of
Plaintiffs’ defamation claims against him, Mr. Kennedy asks that I declare him the “prevailing
party” in this litigation notwithstanding the loss of his counterclaim at trial because this case has
“always” been about the defamation claims and the Peiker entities were forced to withdraw those
claims before trial. As set forth in my preliminary Order on Kennedy’s Motion (Doc. 167), I
agree the Judgment in this case should be amended to reflect the withdrawal of the defamation
claims, but expressed doubt as to Mr. Kennedy’s claim to “prevailing party” status. My
inclination, as stated in the May 29 Order, was to decline to award costs or fees to either side. See
Order, Doc. 167, at 2. The parties have briefed the issue, and I rule as follows:

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Mr. Kennedy argues, as David to Peiker’s Goliath, that given Plaintiffs’ relentless and
“uncompromising . . . pursuit of their [failed] defamation claim against [him],” fairness and
equity dictate that he should be awarded not only his costs in this civil action, but attorney fees as
well. Reply (Doc. 185) at 2. Placing the parties’ zest for litigating one against the other in
context, however, relentlessness in the pursuit of redress is a characterization befitting both, and
not just Peiker.
The dispute between these parties has a long an inglorious history. Mr. Kennedy’s
company, Cellport Systems, first filed suit against the Peiker entities in 2004, in Boulder,
Colorado. That case was removed to federal court, assigned to me, and quickly remanded to state
court. See Civil Action No. 04-cv-1361-JLK. In 2009, Cellport again filed suit against the Peiker
entities in Boulder, seeking millions of dollars in damages on claims for patent infringement and
unfair competition. Peiker removed to federal court, where, after two years of proceedings and
transfers to three different district court judges and a magistrate judge, Civil Action No. 09-cv1007 is set for trial before Judge Jackson in September 2012. After Mr. Kennedy wrote
IdeaJacked detailing the parties’ conflict, the Peiker companies filed suit against Mr. Kennedy in
Michigan for defamation, and Mr. Kennedy countersued for abuse of process. After a transfer to
this court and a year of litigation, Peiker conceded their defamation claims before trial and a jury
entered a verdict against Mr. Kennedy and in favor of Peiker on his abuse of process claim.
Clearly, neither party is patently victim or aggressor in this case.
Because both sides have lost and neither clearly “prevailed,” I exercise my discretion to
deny an award of attorney fees or costs to either Mr. Kennedy or the Peiker entities in this case.
Mr. Kennedy’s Motion to Amend (Doc. 165) is GRANTED in part and DENIED in part. An

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Amended Final Judgment shall enter reflecting the disposition of the Peiker entities’ defamation
claims in favor of Mr. Kennedy, as well as the jury’s verdict against Mr. Kennedy and in favor of
Peiker on Mr. Kennedy’s counterclaim for abuse of process.
Dated this 22d day of June, 2012.
/s/ John L. Kane
Senior U.S. District Court Judge

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