Specht et al v. Google Inc et al

Filing 385

REPLY by Andoid's Dungeon Incorporated, The, Android Data Corporation, Erich Specht to response to motion 384 by Defendant, Google. (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.

)
)
)
)
)
)
)
)
)
)

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

PLAINTIFFS’ REPLY IN SUPPORT OF ITS
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 submit this Reply in support of its Motion to vacate the Court’s
Memorandum Opinion and Order [ECF 360] allowing costs pursuant to Federal Rule of Civil
Procedure Rule 54 (b).
The issue before this Court is whether it is proper to declare a prevailing party and award
costs before the entry of final judgment where there are still outstanding unadjudicated claims
involving the same parties.
For the reasons set forth in Plaintiffs Motion and this Reply, Google has failed to cite any
authority which would justify a departure from the general rule that a prevailing party cannot be
declared until final judgment is entered as to all claims involving the same parties. Accordingly
the Court should vacate its Order awarding costs pending a final resolution of all claims.
I.

THERE IS NO WAIVER BECAUSE IN ITS MOTION FOR DISALLOWANCE,
PLAINTIFFS TIMELY OBJECTED TO THE AWARD OF ANY COSTS CITING

THE FACT THAT THE JUDGMENT DID NOT AWARD COSTS AND THAT
THE JUDGMENT MAY NOT HAVE BEEN FINAL
Google alleges that Plaintiffs failed to raise the objections timely and is merely filing a
motion for reconsideration and raising new issues. This is not true. First of all, the issues were
clearly raised in the first two sections of Plaintiffs’ Motion to Disallow or Stay Taxation of Costs
[ECF 328.]
Section I of the Motion for Disallowance asked the Court to stay the taxation of costs
because Judgment may not be final. Section II of the Motion argued that costs should not be
taxed because the judgment did not allow costs. Although never addressed by the Court, the
issues were specifically raised by Plaintiffs.
Google also argues that nothing has changed since the Court allowed costs. That
argument is also misplaced. The Court awarded costs believing that judgment was final. (See
for e.g. February 24, 2011 transcript wherein the Court stated that judgment was final and
appealable.) The Court of Appeals disagreed and dismissed Plaintiffs appeal as premature citing
Google’s unadjudicated counterclaims and their refusal to dismiss them with prejudice as the
basis for its dismissal.
Accordingly, Plaintiffs objections are proper and were not waived.
II.

BY REFUSING TO DISMISS ITS REDUNDANT CLAIMS WITH PREJUDICE,
GOOGLE HAS PREVENTED JUDGMENT FROM BECOMING FINAL AND
CANNOT BE A PREVAILING PARTY WHEN THERE ARE STILL
UNADJUDICATED CLAIMS HANGING OVER THE LITIGATION
Plaintiffs position is further supported by a case Google has cited in its Response. In,

Haynes Trane Service Agency, Inc. v. Am. Std., Inc., 573 F.3d 947, the Court of Appeals upheld
a judgment against a company on one claim but vacated the award of costs against the company
after it remanded the case for adjudication of another claim.

2

The other two cases cited by Google also do not support their argument. The first case,
Smart v. Local 702 Int’l Brotherhood of Elec. Workers, 573 F.3d 523 (7th Cir. 2009), addressed
the issue of costs of appeal which must be filed in the court of appeals. This case has nothing to
do with the award of costs by the district court before a final judgment is entered and is of no
support to Google’s position.
The other case cited by Google, Slane v. Mariah Boats, Inc., 164 F.3d 1065 (7th Cir.
1999), dealt with the issue of assigning prevailing party status after final judgment. So again,
this case is of no help.
Thus, Google cites no support for its position that a Court can bestow prevailing party
status on one party while there are still unadjudicated claims involving the same parties.
III.

THE COURT’S ORDER STAYING ENFORCEMENT OF THE COST ORDER
WAS BASED UPON THE ASSUMPTION THAT JUDGMENT WAS FINAL
Google’s response assumes that nothing has changed since the Court allowed costs and

permitted Plaintiffs to post a supersedeas bond. However, as set forth above, at the time both
orders were entered, the Court and the parties were operating under the assumption that
judgment was final. This assumption changed when the Court of Appeals held that judgment
was not final.
Accordingly, Plaintiffs’ motion is based in good faith and not a frivolous attempt to
evade this Court’s Order. Since there is no final judgment, declaring a prevailing party is
premature and the Court’s Order awarding costs to Google must be vacated.

3

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]

4

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
_25th__ day of October, 2011.

/s/ Martin J. Murphy

5