Specht et al v. Google Inc et al

Filing 363

MOTION by Plaintiffs Andoid's Dungeon Incorporated, The, Android Data Corporation, Erich Specht to stay regarding memorandum opinion and order 360 , text entry, 359 (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 STAY ENFORCEMENT OF
ORDER AWARDING COSTS [ECF 360] PURSUANT TO
RULE 8 OF THE FEDERAL RULES OF APPELLATE PROCEDURE
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, pursuant to Fed. R. App. Proc. 8, for an Order staying
enforcement of the Court’s order awarding costs in favor of Google, pending appeal to the
Seventh Circuit Court of Appeals and the rendering of a decision by the Seventh Circuit Court of
Appeals. In support of this Motion, Plaintiffs state as follows:
1.

Fed. R. App. Proc. 8 provides in relevant part that a party must ordinarily move

first in the district court for … a stay of the judgment or order of a district court pending appeal.
2.

On December 17, 2011 the Court granted summary judgment in favor of Google

as to Plaintiffs’ Second Amended Complaint and two of Google’s seven counterclaims. [ECF
296]
3.

On February 24, 2011, the Court granted Google’s motion to dismiss its

remaining five counterclaims, and Final Judgment was entered March 11, 2011. [ECF 311]
4.

On March 22, 2011, Plaintiffs filed their Notice of Appeal. [ECF 312]

5.

On March 23, 2011, Google filed its bill of costs. [ECF 321]

6.

On March 25, 2011, the Court of Appeals suspended briefing and ordered

Plaintiffs to file a jurisdictional memorandum stating why the appeal should not be dismissed for
lack of jurisdiction citing Google’s dismissal of its counterclaims without prejudice. (See Exhibit
1 attached hereto.)
7.

Plaintiffs filed a jurisdictional memorandum, Google filed a response, and

Plaintiffs filed a reply.
8.

As of August 1, 2011, no further order regarding jurisdiction or briefing has been

forthcoming from the Court of Appeals.
9.

On June 27, 2011, the Court awarded costs in favor of Google and against

Plaintiffs.
10.

On July 28, 2011, Plaintiffs were notified that Google would be seeking to

enforce the Court’s Order awarding costs.
11.

Plaintiffs seek a stay of enforcement of this Court’s Order awarding costs in order

to preserve the status quo pending appeal.
12.

In the alternative, if the Court does not grant a stay of the enforcement of its

order, Plaintiffs ask that this Court set a reasonable supercedeas bond amount pending appeal.
13.

This Motion is made for good cause. It will not prejudice either party and is not

being made for purpose of undue delay.

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WHEREFORE, for the reasons stated above, Plaintiffs respectfully request that this
Honorable Court grant the Motion to Stay Enforcement of Order Awarding Costs Pending
Appeal.
Respectfully submitted,
ERICH SPECHT, an individual and doing
business as ANDROID DATA
CORPORATION, and THE ANDROID’S
DUNGEON INCORPORATED
By:
Martin J Murphy
2811 RFD
Long Grove, IL 60047
[phone]
[e-mail]

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/s/Martin J. Murphy

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
_2nd__ day of August, 2011.

/s/ Martin J. Murphy

EXHIBIT 1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
March 24, 2011

By the Court:
ERICH SPECHT, et al.,
Plaintiffs-Appellants,
No. 11-1689
GOOGLE INC.,
Defendant-Appellee.

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Appeal from the United
States District Court for
the Northern District of
Illinois, Eastern Division.
No. 1:09-cv-02572
Harry D. Leinenweber,
Judge.

O R D E R
A preliminary review of the short record indicates that the
order appealed from may not be a final appealable judgment within
the meaning of 28 U.S.C. § 1291.
The district court dismissed a portion of defendant Google’s
counterclaim (specifically Counts II, IV, V, VI and VII) without
prejudice, at the request of defendant Google. It is not known
whether defendant Google would be able, if it chooses to do so,
reinstate those claims after this appeal is resolved. If so,
this appeal may be premature. See, e.g. India Breweries, Inc. v.
Miller Brewing Co., 612 F.3d 651 (7th Cir. 2010). Accordingly,
IT IS ORDERED that appellants shall file, on or before
April 7, 2011, a brief memorandum stating why this appeal should
not be dismissed for lack of jurisdiction. A motion for
voluntary dismissal pursuant to Fed. R. App. P. 42(b) will
satisfy this requirement. Briefing shall be suspended pending
further court order.
NOTE:

Caption document “JURISDICTIONAL MEMORANDUM.” The filing
of a Circuit Rule 3(c) Docketing Statement does not
satisfy your obligation under this order.