Dice Corporation v. Bold Technologies LTD

Filing 106

ORDER denying without prejudice 99 Motion for Attorney Fees and Cancelling Hearing. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DICE CORPORATION,
Plaintiff,
Case Number 11-13578
Honorable Thomas L. Ludington

v.
BOLD TECHNOLOGIES,
Defendant.
__________________________________________/

OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR ATTORNEY FEES WITHOUT PREJUDICE
AND CANCELLING HEARING
In this intellectual property dispute, Plaintiff Dice Corporation alleged that Defendant
Bold Technology accessed Plaintiff’s servers and stole its software. Defendant denied that it did
any such thing. Relying on deposition testimony, affidavits, and other evidence showing that it
did not access Plaintiff’s servers or software, Defendant moved for summary judgment. Plaintiff
opposed the motion with conclusory assertions, not evidence. Defendant’s motion was granted.
Dice Corp. v. Bold Techs., --- F. Supp. 2d ----, 2012 WL 5292920 (E.D. Mich. Oct. 25, 2012).
On November 21, 2012, Defendant moved for an award of attorney fees and costs. ECF
No. 99. Specifically, Defendant sought $187,650.48 (the total incurred through November 19,
2012) pursuant to the Copyright Act, the Digital Millennium Copyright Act, and the Michigan
Uniform Trade Secrets Act. Defendant asserted that it is entitled to these fees and costs because
Plaintiff’s claims were baseless and brought in bad faith.
The same day as Defendant filed its motion for attorney fees, Plaintiff filed a notice of
appeal. ECF No. 100. The notice explains that Plaintiff appeals the opinion and order granting
Defendant summary judgment and dismissing the complaint.

The filing of a notice of appeal does not divest a district court of jurisdiction to decide a
motion for attorney fees. Tancredi v. Metropolitan Life Ins. Co., 378 F.3d 220, 225 (2nd Cir.
2004). Rather, in such situations a district court has the discretion to do three things:
If an appeal on the merits of the case is taken, the court may rule on the claim for
fees, may defer its ruling on the motion, or may deny the motion without
prejudice, directing . . . a new period for filing after the appeal has been resolved.
Fed. R. Civ. P. 54(d) advisory committee’s note (1993). Here, the Court selects the final option
for two reasons.
First, if Plaintiff prevails on appeal, Defendant would not be entitled to attorney fees. So
deciding the motion would have wasted judicial resources. See, e.g., Derringer v. Sewell, CV08-8156-PHX-DGC, 2009 WL 2424662, at *1 (D. Ariz. Aug. 7, 2009) (denying motion for
attorney fees without prejudice pending appeal because of interest in judicial economy); Ewing v.
TWA Rest. Group, Inc., 08-2024-CM, 2009 WL 976490, at *1 (D. Kan. Apr. 10, 2009) (same);
Quigley v. Gov’t Emps. Ins. Co., 8:03-CV-1349-T-26EAJ, 2008 WL 384561, at *1 (M.D. Fla.
Feb. 11, 2008) (same).
Second, if Plaintiff does not prevail on appeal, Defendant will almost certainly seek to
recoup the expenses that it incurred on appeal. See, e.g., Quigley, 2008 WL 384561, at *1. And
efficiency favors resolving all of the fee requests at once rather than piecemeal. Consequently, if
Defendant prevails on appeal, it will be permitted 21 days after the issuance of the mandate to
file a request for attorney fees.
Accordingly, it is ORDERED that Defendant’s motion for attorney fees (ECF No. 99) is
DENIED WITHOUT PREJUDICE.

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It is further ORDERED that Defendant, if it is the prevailing party on appeal, may refile
a motion for attorney fees within 21 days of the entry of the mandate of the Sixth Circuit on this
Court’s docket.
It is further ORDERED that the hearing scheduled for June 10, 2013 is CANCELLED
because oral argument will not aid in the disposition of the motion. E.D. Mich. L.R. 7.1(f)(2).

Dated: April 11, 2013
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 11, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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