Specht et al v. Google Inc et al

Filing 382

MOTION by Plaintiffs Andoid's Dungeon Incorporated, The, Android Data Corporation, Erich Specht to vacate memorandum opinion and order 360 (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 VACATE ORDER AWARDING COSTS [ECF 360]
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 vacate its Memorandum Opinion and Order [ECF 360]
allowing costs pursuant to Federal Rule of Civil Procedure Rule 54 (b).
1.

Rule 54 (b) provides in pertinent part that:

[A]ny order or other decision,

however designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating all the claims and all the parties'
rights and liabilities.
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 oral motion to dismiss without

prejudice Counts II, IV, V VI, and VII of the counterclaim. The Court also stated that 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. [ECF311].
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 April 13, 2011 Plaintiffs filed their objections to Google’s Bill of Costs

arguing in part that Google’s filing was improper because Local Rule 54.1 only permits the filing
of a Bill of Costs where the judgment specifically awards costs, which the judgment did not.
Plaintiffs also objected because Judgment may not have been final. [ECF328.]
7.

On June 27, 2011, over Plaintiffs’ objections, the Court awarded costs in favor of

Google and against Plaintiffs. [ECF 360.]
8.

On August 22, 2011 the Court of Appeals dismissed Plaintiffs appeal as

premature citing the non-finality of the Court’s February 24, 2011 order. [ECF 370.]
9.

On October 6, 2011 the Court entered an order permitting Plaintiffs to file an

interlocutory appeal pursuant to FRCP Rule 54 (b). [ECF 373.]
10.

Because Google has declined to dismiss its unadjudicated Counterclaims with

prejudice, there are still claims which may need to be adjudicated. Thus, without a final
adjudication of all claims, there is no prevailing party. (See, for e.g., Farrar v. Hobby, 506 U.S.
103, 112 (1992.)

"[T]he moral satisfaction [that] results from any favorable statement of law

cannot bestow prevailing party status.” (Citation omitted.) )
11.

Because Google’s refusal to dismiss its remaining counterclaims with prejudice is

preventing a final judgment, it would not be unduly prejudiced by this Court vacating the Order
awarding costs pending resolution of all claims.

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12.

Accordingly, the Order awarding costs is premature and should be vacated

pending a final resolution of all claims.
WHEREFORE, Plaintiffs move this Honorable Court for an order vacating the Order
awarding costs [ECF 360] pending a final resolution of all claims.
Respectfully submitted,
ERICH SPECHT, an individual and doing
business as ANDROID DATA
CORPORATION, and THE ANDROID’S
DUNGEON INCORPORATED
By:

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

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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
_20th__ day of October, 2011.

/s/ Martin J. Murphy