Specht et al v. Google Inc et al

Filing 332

MOTION by Counter Defendants Andoid's Dungeon Incorporated, The, Android Data Corporation, Erich Specht, Plaintiffs Andoid's Dungeon Incorporated, The, Android Data Corporation, Erich Specht to strike MOTION by Defendant Google Inc for attorney feesMOTION by Defendant Google Inc for sanctions 314 (Murphy, Martin)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERICH SPECHT, an individual and doing business
as ANDROID DATA CORPORATION, and THE
ANDROID’S DUNGEON INCORPORATED,
Plaintiffs/Counter-Defendants,
v.
GOOGLE INC.,
Defendant/Counter-Plaintiff.

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Civil Action No. 09-cv-2572
Judge Harry D. Leinenweber

PLAINTIFFS’ MOTION TO STRIKE GOOGLE’S MOTION
FOR ATTORNEY FEES [ECF 314]
Plaintiffs Erich Specht, an individual and doing business as Android Data Corporation
and The Android’s Dungeon Incorporated (collectively, “Plaintiffs”), by and through their
attorney, respectfully move this Court to strike Google’s Motion for Attorney Fees [ECF 314].
In support hereof, Plaintiffs state as follows:
I.

A POST JUDGMENT MOTION FOR ATTORNEYS’ FEES IN A TRADEMARK
CASE IS A MOTION TO ALTER OR AMEND THE JUDGMENT GOVERNED
BY RULE 59(e) OF THE FEDERAL RULES OF CIVIL PROCEDURE
1.

In an attempt to muddy the waters and cause confusion, Google has filed a motion

seeking attorney fees under the Lanham Act, 15 U.S.C. § 1117(a), with a motion for sanctions
under 28 U.S.C. § 1927. [ECF 314]. This motion is only addressing that portion of Google’s
motion for attorney fees under the Lanham Act. The motion for sanctions under 28 U.S.C. §
1927 is a separate matter and will be addressed in a separate filing.
2.

Google has also filed a motion for leave to file an oversize brief. [ECF 315].

Improperly buried in Google’s motion for leave to file an oversize brief is the contention that its

motion for attorney fees under 15 U.S.C. § 1117(a) is governed by Rule 54(d). [ECF 315 at ¶
7]. Google is wrong. It is not.
3.

In Hairline Creations, Inc. v. Kefalas, the sole issue decided by the Seventh

Circuit was whether a post judgment motion for attorneys’ fees in a trademark case [under 15
U.S.C. 1117(a)] is a motion to alter or amend the judgment governed by Rule 59(e) of the
Federal Rules of Civil Procedure, or is a motion for costs governed by Rule 54(d). Hairline
Creations, Inc. v. Kefalas, 664 F.2d 652, 654 (7th Cir. 1982). The Court held that post judgment
motion for attorney fees under [15 U.S.C.] § 1117(a) is governed by FRCP Rule 59(e) and not
Rule 54(d). Id.
4.

Rule 54 provides that a claim for attorney's fees and related nontaxable expenses

must be made by motion unless the substantive law requires those fees to be proved at trial as an
element of damages. FRCP Rule 54(d) (2). Under the Lanham Act, Attorneys’ fees are only
awarded when the Court makes a finding that the case is exceptional. Thus, the substantive law
requires those fees to be proved at trial.
5.

A statutory and functional analysis of the attorneys’ fees provision of [15 U.S.C.]

§ 1117 indicates that these fees are tied to the judgment and are governed by Rule 59(e). Keflas
at 660.
6.

“[A] proceeding for an award of attorneys’ fees is not a suit; it is a tail dangling

from a suit. We don’t want the tail to wag the dog.” Nightingale Home Healthcare v. Anodyne,
626 F.3d 958, 965 (7th Cir. 2010).
7.

Accordingly, what Google is really asking the Court to do is amend its judgment

pursuant to Rule 59(e). There is no reason to amend the judgment to accommodate Google for
something it knew before judgment became final.

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8.

Google knew that it was going to be asking for attorney fees well before it

dismissed its counterclaims and cleared the way for the Court to render its judgment final.
9.

On February 24, 2011, Google’s attorney, Mr. Finn, stated that:
MR FINN: Your Honor, just so this Court is aware, we plan on filing a
motion for attorneys’ fees at least under the extraordinary case findings of
the Lanham Act. I don’t believe that affects the appeal date or the stay but
just wanted this Court to be aware.” (Feb. 24, 2011 Transcript at p. 6).
[Exhibit 1]. (emphasis added).

10.

Rule 59(e) allows a court to alter or amend a judgment only if the petitioner can

demonstrate a manifest error of law or present newly discovered evidence.

Obriecht v.

Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) citing Sigsworth v. City of Aurora, 487 F.3d 506,
511-12 (7th Cir. 2007).
11.

Google cannot claim a manifest error of law when the Court did everything it

asked. Nor can it claim newly discovered evidence when it stated its intention to file for attorney
fees and then failed to do so before judgment became final.
12.

The Court granted Google the judgment Google wanted on February 24, 2011.

The judgment Google wanted did not include costs or fees. It was Google’s attorneys that erred,
not the Court and not Plaintiffs.
13.

Then, in an attempt to further prejudice Plaintiffs counsel, Google did not file its

motion for fees until March 22, 2011, 26 days after the Court said judgment was final and after
Plaintiffs’ had already filed a Notice of Appeal.
14.

Accordingly, Google’s motion to amend the final judgment pursuant to Rule 59(e)

to add attorney fees under 15 U.S.C. § 1117(a) should be stricken or denied. Also, because the
judgment entered did not include costs or fees, any motion to add them would have to be
pursuant to Rule 59(e) as well.

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15.

Google should have presented a motion to allow fees and costs to this Court

before it rendered judgment final. Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008).
II.

EVEN IF THE COURT WERE TO HOLD THAT A MOTION FOR ATTORNEY
FEES UNDER THE LANHAM ACT WERE GOVERNED BY RULE 54(d),
GOOGLE’S MOTION IS UNTIMELY AS SET FORTH BY THE COURT IN ITS
FEBRUARY 24, 2011, RULING ON PLAINTIFFS’ MOTION FOR
RECONSIDERATION AND, THEREFORE MUST BE STRICKEN AS
UNTIMELY
16.

On January 31, 2011, Plaintiffs filed a Rule 54(b) motion for reconsideration of

the Court’s Judgment Summary Judgment Order. [ECF 302]. On February 3, 2011, the Court
offered Google an opportunity to respond to Plaintiffs’ motion which they declined.

By

declining to respond to Plaintiffs’ motion and allowing the Court to respond for it, Google has
adopted the Court’s position and waived any objection it may have to the Court’s February 24,
2011 ruling, including any argument that it may now have that final judgment was not “entered”
until March 11, 2011. Google cannot sit silently and allow the Court to advance arguments that
it disagrees with. If Google allows the Court to make Google’s arguments, then Google must
live with the consequences.
17.

On February 24, 2011, the Court held that Plaintiffs’ motion for reconsideration

was untimely under FRCP Rule 59(e). More specifically, the Court stated:
THE COURT: All right … The Court granted defendant Google's motion for
summary judgment on all five counts of plaintiffs' trademark infringement action,
as well as on two counts of Google's counterclaim. Plaintiffs have filed a motion
for reconsideration for all counts of this decision … As an initial matter, plaintiffs
did not file their motion within the required 28-day time frame following the
Court's December 17, 2010, judgment. See Federal Rule of Civil Procedure
59(e)…
18.

FRCP Rule 54(d)(2)(A) provides that: a claim for attorney's fees and related

nontaxable expenses must be made by motion unless the substantive law requires those fees to be

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proved at trial as an element of damages. Notwithstanding, Plaintiffs’ argument that substantive
law requires the fees to be proved at trial, Google’s motion is untimely.
19.

FRCP Rule 54(d)(2)(B) states that: unless a statute or a court order provides

otherwise, the motion must (i) be filed no later than 14 days after the entry of judgment.
20.

Under the Court’s February 24, 2011 holding, Google is well beyond the 14 days

permitted under Rule 54 and its motion is, therefore, untimely and must be stricken.
III.

GOOGLE’S MOTION IS ALSO UNTIMELY UNDER FRCP RULE 54,
BECAUSE ITS MOTION FOR FEES WAS NOT FILED UNTIL 26 DAYS
AFTER JUDGMENT WAS RENDERED FINAL

21.

FRCP Rule 54(d) provides that unless a statute or a court order provides

otherwise, the motion (for attorney fees) must: (i) be filed no later than 14 days after the entry of
judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to
the award; and (iii) state the amount sought or provide a fair estimate of it…
22.

Google’s Rule 54(d) motion is defective in that it was not filed timely in accord

with the Court’s Order of February 24, 2011.
23.

Also, because the motion is based upon two completely different statutes, it does

not state the amount sought or provide a fair estimate of what is sought, against which party, and
under which statute.
24.

On February 24, 2011, Google’s attorney stated that:
MR FINN: Your Honor, just so this Court is aware, we plan on filing a motion
for attorneys’ fees at least under the extraordinary case findings of the Lanham
Act. I don’t believe that affects the appeal date or the stay but just wanted this
Court to be aware.” (Feb. 24, 2011 Transcript at p. 6). [Exhibit 1].

25.

The Court, responding to the notice by Google’s attorney’s, stated:
THE COURT: I don’t think that does either. It’s my understanding that’s -- as
of today then, the judgment is final for the purposes of the appeal. Id.

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26.

As further evidence of the Court’s intention that the judgment be final as of

February 24, 2011, the “Filed” date on the judgment is also February 24, 2011 as is the date
immediately to the left of this Court Clerk’s signature. [Exhibit 2].
27.

The “Entered” date on the Docket sheet, however, is March 11, 2011.

28.

The question then is which date is controlling: The date set by the Court, the

Filed date set on the Order and judgment, and the signed date to the left of the clerk’s signature
or the date printed on the Docket Sheet?
29.

Google now argues that it is the date printed on the Docket Sheet and not the date

set out numerous times by the Court’s statements in open court, in the Order, in the Judgment,
and next to the Clerk’s signature which is controlling.
30.

Google’s argument ignores the Court’s Order that the judgment was final for the

purposes of the appeal as of “today” (February 24, 2011). That Order was directed at Google in
anticipation of Google filing their Rule 54(d) attorney fee motion.
31.

In this circuit, however, the technical requirements of Rules 54 and 58 need not be

met for an Order to be final and appealable. American National Bank and Trust Co. of Chicago
v. Secretary of Housing and Urban Development, 946 F.2d 1286, 1290 n. 6, (7th Cir. 1991) ,
American Family Mut. Ins Co. v. Jones, 739 F.2d 1259, 1261-62 n.1, (7th Cir. 1984).
32.

In American National Bank, the clerk neglected to complete an AO 450 Form

(“Judgment in a Civil Case”) and the district court did not specifically rule on the rights of
intervenors in the case. The Seventh Circuit still held that “it is evident the district court
intended the June 10, 1987 order to dispose of the proceedings with respect to the intervenors…”
American National Bank, at 1290. Thus, the order of the district court was final even though the
requirements of Rule 58 and 79(b) were not complied with and even though the Court did not

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make specific rulings. It was the intent of the district court and not compliance with the Rules
that the Seventh Circuit ultimately relied upon in calculating the due date for a notice of appeal.
33.

Accordingly, it is the Court’s intention that is the determining factor in calculating

the deadline for filing Rule 54 motions and not the clerk’s strict adherence to the Rules. Id.
34.

Plaintiffs understood that the Court made its intention crystal clear: The clock

starting ticking on February 24, 2011 and not on March 11, 2011 as now alleged by Google.
35.

Plaintiff filed his Notice of Appeal on March 22, 2011 relying on the Court’s

order of February 24, 2011. Google then filed its motion for attorney fees.
36.

FRCP Rule 58 (e) provides that: “Ordinarily, the entry of judgment may not be

delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a timely
motion for attorney's fees is made under Rule 54(d)(2), the court may act before a notice of
appeal has been filed and become effective to order that the motion have the same effect under
Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59.”
37.

Had Google complied with the Court’s Order and filed their motion by March 11,

2011, Plaintiff would have had fifteen days in which to move the Court for an order extending
the time to file a notice of appeal.
38.

Instead, Plaintiffs now have to prepare their brief and deal with Google’s

untimely and frivolous motions.
39.

Google’s actions were deliberate.

40.

At 5:26 p.m. on Sunday, March 20, 2011, Google’s attorney, Mr. Finn, sent an

email to Plaintiff’s attorney, Mr. Murphy, reiterating Google’s intent to file an attorney fee
motion and requesting that Plaintiff’s agree to allow Google to file an oversize brief and a
briefing schedule. [Exhibit 3].

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41.

At 12:35 p.m. on Monday, March 21, 2011, Plaintiffs’ attorney, Mr. Murphy,

responded to Google’s request and informed Mr. Finn that he believed that the time for filing had
already passed. Id.
42.

Mr. Finn did not reply to Mr. Murphy’s email. So at 12:12 p.m. on Tuesday,

March 22, 2011, Plaintiffs filed their notice of appeal. [ECF 312].
43.

At 4:37 on March 22, 2011, Google filed its motion for attorney fees. [ECF 314].

44.

So, why did Google sit on the motion until after Plaintiff filed its Notice of

Appeal? The answer is clear, to prejudice Plaintiffs’ attorney and bury him in paperwork so that
he can’t concentrate on the appellate brief.
45.

Google’s deliberate defiance cannot be tolerated.

46.

WHEREFORE, for the reasons set forth above, Plaintiffs move this Honorable

Court for an order striking or denying Google’s motion for attorney fees under Rule 59(e) or
Rule 54 and granting Plaintiffs such other and further relief as is appropriate under the
circumstances including its fees in defending against Google’s motion. If for any reason this
Court denies Plaintiffs’ motion to strike, then Plaintiffs request an opportunity to address the
substantive issues raised by the motion for attorney fees, i.e. whether this is truly an “exceptional
case,” under the test set forth in Nightingale Home Healthcare v. Anodyne, 626 F.3d 958, 963
(7th Cir. 2010).

Respectfully submitted,
ERICH SPECHT, an individual and doing
business as ANDROID DATA
CORPORATION, and THE ANDROID’S
DUNGEON INCORPORATED
By:

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/s/Martin J. Murphy

Martin J Murphy
2811 RFD
Long Grove, IL 60047
[phone]
[e-mail]

CERTIFICATE OF SERVICE
Martin J. Murphy, an attorney, certifies that he caused copies of the foregoing to be
served by electronically filing the document with the Clerk of Court using the ECF system this
_26th__ day of April, 2011.

/s/ Martin J. Murphy

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EXHIBIT 1

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

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ERICH SPECHT, et.al.,

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Plaintiffs,
v.
GOOGLE, INC.,

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Defendants.

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Docket No. 09 C 2572
Chicago, Illinois
February 24, 2011
9:30 o'clock a.m.

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE HARRY D. LEINENWEBER

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APPEARANCES:

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For Plaintiff:
The Android's Dungeon

MR. MARTIN J. MURPHY
2811 RFD
Long Grove, IL 60047

For Defendant Google:

GREENBERG TRAURIG LLP by
MR. HERBERT H. FINN
77 West Wacker Drive
Chicago, IL 60601

Court Reporter:

GAYLE A. MCGUIGAN, CSR, RMR, CRR
Official Court Reporter
219 South Dearborn Street
Room 1022
Chicago, Illinois 60604
[phone]

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(Proceedings had in open court:)

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THE CLERK:

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MR. MURPHY:

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09 C 2572, Specht versus Google.
Good morning, your Honor.

Martin Murphy

on behalf of plaintiffs.

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MR. FINN:

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behalf of defendant Google.

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THE COURT:

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Good morning, your Honor.

All right.

Herbert Finn on

The motion for reconsideration

ruling.
The Court granted defendant Google's motion for summary

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judgment on all five counts of plaintiffs' trademark

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infringement action, as well as on two counts of Google's

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counterclaim.

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reconsideration for all counts of this decision.

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Plaintiffs have filed a motion for

Motions for reconsideration serve a limited function:

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to correct manifest errors of law or fact or to present newly

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discovered evidence.

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an initial matter, plaintiffs did not file their motion within

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the required 28-day time frame following the Court's

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December 17, 2010, judgment.

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Procedure 59(e).

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motion as one brought under 60(b).

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See Caisse Nationale, 90 F.3d at 1269.

As

See Federal Rule of Civil

The Court, therefore, treats plaintiffs'

Plaintiffs first argue that the Court does not have

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jurisdiction to order the cancellation of the ANDROID DATA mark.

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The Lanham Act, however, gives federal courts concurrent power

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with the USPTO to cancel a mark in a case in which the mark's

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validity is an issue.

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party can petition a district court to cancel a trademark

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because of abandonment under 15 U.S.C. 1064(3).

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Net Bank, 348 F. Supp. 2d at 352.

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motion to reconsider Count 1 is denied -- of the counterclaim is

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denied.

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See 15 U.S.C. Section 1119.

Also, a

See InterState

Accordingly, plaintiffs'

Next, plaintiffs argue that Google misled the Court

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regarding its use of screen shots from the website

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androiddata.com, pulled from the Internet Archive's Wayback

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Machine.

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Google's motion for summary judgment, and the Court granted

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Google's motion to exclude them as they were not properly

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authenticated by an employee of the Internet Archive.

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support their argument, plaintiffs have submitted reports that

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Google commissioned a third party to do, which investigate use

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of the ANDROID DATA mark.

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exhibits, which Google produced in discovery and plaintiffs

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possessed during the summary judgment proceedings, is improper

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on a motion for reconsideration, as it is not newly discovered

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evidence.

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not consider them in ruling on this motion.

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Plaintiffs produced these screen shots to oppose

To

However, the introduction of these

See Caisse National, 90 F.3d at 1269.

The Court will

Plaintiffs do not allege that Google ever used the

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Internet Archive screen shots outside of the present litigation

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in a manner to determine exactly how the androiddata.com website

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appeared in March 2005.

Rather, Google used them to determine

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possible use of the ANDROID DATA mark by plaintiffs.

Federal

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Rule of Evidence 901 requires authentication of the shots as a

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predicate to their admissibility as an exhibit demonstrating the

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actual appearance of the website.

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plaintiffs allege, if Google admitted to the USPTO that the

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androiddata.com site was a use in commerce of the ANDROID DATA

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mark, as use in commerce is a question of law defined in the

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Lanham Act.

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bona fide use in commerce.

Also, it is irrelevant, as

The Court, not Google, determines if a use is a
Accordingly, the Court denies the

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motion to reconsider the admissibility of the Internet Archive

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screen shots.

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Nevertheless, the screen shots do not show that

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androiddata.com as it existed from the end of 2002 through March

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2005 amounted to any more than, quote, mere advertising, end

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quote, that is not a bona fide use in commerce.

See In re

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Genitope, 78 U.S. Patent Quarterly 2d at 1822.

As the Court

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discussed in its summary judgment opinion, the shots do not show

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that the website provided a mechanism to order plaintiffs'

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software, any price information about the software, information

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about how a visitor to the website could license the software,

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or detailed information and pricing on plaintiffs' services.

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short, they would not alter the Court's abandonment holding.

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In

Finally, plaintiffs argue that a genuine issue of

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material fact exists as to when Google first used its ANDROID

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mark in commerce.

Plaintiffs confuse the sale of smart phones

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with the Android operating system with the actual introduction

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of the Android operating system.

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used the ANDROID mark in commerce in November 2007 when it

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introduced the operating system and provided it to third-party

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developers.

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an ordinary course of trade.

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allegedly denied using the mark in commerce in November 2007,

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which, again, was presented in exhibits that the Court will not

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consider as they were improperly produced at this stage of the

The evidence shows that Google

At this point, the ANDROID mark was being used in
Plaintiffs' argument that Google

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litigation, does not affect this decision because use in

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commerce is a question of law decided by the Court.

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Therefore, the motion for reconsideration is denied as
to all counts.
Now, the -- as I understand it, remaining are Counts 2,
4, 5, 6, and 7 on the counterclaim; is that correct?

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MR. FINN:

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THE COURT:

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I believe that's correct, Your Honor.
Mr. Finn, it was my understanding you were

planning to -MR. FINN:

Well, your Honor, we had a proposal.

We

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understand plaintiffs want to appeal this Court's ruling on

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summary judgment.

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whether they can pay the costs that we'd be entitled to under

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that ruling, we'd be willing to withdraw or dismiss those counts

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without prejudice with leave to reinstate should the appeal

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overturn this Court's ruling and it get sent back.

And in view of the fact we had concerns as to

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THE COURT:

Is there objection to that?

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MR. MURPHY:

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THE COURT:

No, your Honor.
The motion -- motion of the

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defendant/counterclaimant, Counts 2, 4, 5, 6, and 7 of the

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counterclaim are dismissed without prejudice to be reinstated in

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the event that the cause is reversed on appeal.

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MR. FINN:

Your Honor, just so this Court is aware, we

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plan on filing a motion for attorneys' fees at least under the

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extraordinary case findings of the Lanham Act.

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I don't believe that affects the appeal date or the
stay but just wanted this Court to be aware.
THE COURT:

I don't think that does either.

It's my

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understanding that's -- so that as of today then, the judgment

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is final for purposes of the appeal.

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Thank you.

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MR. MURPHY:

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MR. FINN:

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Thank you, your Honor.

Thank you, your Honor.

(Proceedings Concluded.)

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C E R T I F I C A T E

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I certify that the foregoing is a correct transcript from

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the record of proceedings in the above-entitled matter.

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s/s_________________________________
GAYLE A. McGUIGAN, CSR, RMR, CRR
Official Court Reporter

_________
Date

EXHIBIT 2

AO 450(Rev. 5/85)Judgment in a Civil Case

United States District Court
Northern District of Illinois
Eastern Division

Erich Specht, et al
v.

JUDGMENT IN A CIVIL CASE
Case Number: 09 C 2572

Google Inc., et al
G

Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

O

Decision by Court. This action came to hearing before the Court. The issues have
been heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that Google’s oral motion to dismiss without
prejudice Counts II, IV, V, VI, VII of the counterclaim is granted. The Court having
previously granted Google’s Motion for Summary Judgment on Counts I-V of Plaintiffs’
Second Amended Complaint, and Counts I and III of Google’s counterclaim, judgment is
hereby final for the purposes of appeal.

Michael W. Dobbins, Clerk of Court
Date: 2/24/2011

________________________________
/s/ Wanda A. Parker, Deputy Clerk

EXHIBIT 3

Marty Murphy
From:
Sent:
To:
Subject:

Marty Murphy <[e-mail]>
Monday, March 21, 2011 12:35 PM
'[e-mail]'
RE: Specht/Google

Herb,
I believe that the time for filing the motion has passed, and, therefore, would be untimely. As the Court clearly stated
at the February 24, 2011 hearing “as of today then, the judgment is final for the purposes of the appeal.” The “Filed”
date on the judgment is also February 24, 2011. Under FRCP Rule 54(d)(2)(B)(i), the motion must be filed no later than
14 days after the entry of judgment. I also don’t believe that Local Rule 54.3 would apply since you are effectively asking
the Court to award fees as a sanction for what you would apparently perceive to be “an abuse of process in suing” under
the Nightingale case. So, I believe that perhaps the best way to go is to have the Court rule on whether the motion is or
is not timely. If the Court rules in Google’s favor, then I would be agreeable to your briefing schedule and filing an
oversize brief.
Marty
From: [e-mail] [mailto:[e-mail]]
Sent: Sunday, March 20, 2011 5:26 PM
To: [e-mail]
Cc: [e-mail]; [e-mail]
Subject: Specht/Google
Marty,
As previously advised, we intent on filing a motion for attorneys fees. So as to avoid an unnecessary hearing, we would
like to come to some agreement as to a briefing schedule. We suggest 14 days for a response and 7 for a Reply. Please
advise if that is acceptable.
Also, please advise if Plaintiffs object to an oversized brief of no more than 5 pages. We, of course, would agree to a
similar size for Plaintiffs' responsive brief.
Thank you,
Herb Finn
Herbert H. Finn
Shareholder
Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
Tel [phone] | Fax [phone]
[e-mail] | www.gtlaw.com
Righ
tclick
here
to
dow
nlo…

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