Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 206

MOTION to continue pretrial conference and trial date by Connexus Corporation, Epic Media Group, Incorporated, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated. (Delgado, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
Case No. 2:09-CV-10756
Hon. Marianne O. Battani

vs.
NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________

DEFENDANTS THE EPIC MEDIA GROUP, INC. CONNEXUS CORPORATION,
FIRSTLOOK, INC., AND NAVIGATION CATALYST SYSTEMS, INC.’S MOTION TO
CONTINUE PRETRIAL CONFERENCE AND TRIAL

NOTICE OF MOTION AND MOTION
TO THIS HONORABLE COURT, PLAINTIFF, AND ITS ATTORNEYS OF RECORD:
The Epic Media Group, Inc., Connexus, Inc., Firstlook, Inc., and Navigation Catalyst
Systems, Inc. (collectively the “Defendants”) hereby move this court for an order continuing the
pretrial conference and trial date in this matter.
The bases for this Motion are set forth in the Memorandum of Points and Authorities; to
wit, because of the pending Motions for Summary Judgment and the numerous procedural and
substantive issues which are to be heard on September 15, 2011, it is presently impossible for the
parties to adequately and efficiently prepare for a trial in this matter.
On July 22, 2011, William A. Delgado and Bruce Sendek, counsel for Connexus,
telephonically met and conferred with Enrico Schaefer, counsel for Plaintiff, and explained the
nature of this Motion and its legal basis and requested, but did not obtain, concurrence in the
relief sought.
RESPECTFULLY SUBMITTED this 15th day of August, 2011 (Pacific Time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

ii

STATEMENT OF THE ISSUE PRESENTED
Whether judicial economy is best served by continuing the pretrial conference and trial in
this matter.

iii

CONTROLLING AUTHORITY
The Court has the inherent power to control its own schedule to promote fair and efficient
adjudication. Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1077 (3d Cir. 1983).

iv

MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
Defendants respectfully request that the pretrial conference and trial date in this matter be

reset to future dates, after the scope of this trial is known. There are two primary reasons.
First, under the present schedule, the parties must commence preparing for trial and
exchange pretrial disclosures on September 2, 2011, before the Court has even had oral
argument on four pending motions, three of which are dispositive and one of which is a Daubert
motion which seeks to preclude testimony at trial. It is nearly impossible to adequately and
efficiently commence preparing for a trial where: (i) the evidence to be presented is in question,
(ii) the claims to be presented are in question, (iii) the witnesses to be presented are in question,
(iv) the parties that will participate in that trial are in question.
Second, under the present schedule, it would be nearly impossible to prepare for and
submit the necessary pretrial documents between September 15, 2011 (the date of the hearing of
the pending motions) and September 22, 2011 (the date by which the pretrial order is likely to be
lodged). Indeed, the present schedule would require the Court to rule on the four different
pending motions from the bench on September 15, 2011. The parties would then have
approximately one week to craft their respective pretrial strategies (since trial will be shaped one
way or the other by the Court’s rulings on these motions), prepare and lodge the pretrial order,
prepare the Bench Book, and prepare their motions in limine in advance of the pretrial
conference on September 26, 2011.

II.

STATEMENT OF FACTS
On July 15, 2011, Plaintiff filed a Motion for Summary Adjudication on its Anti-

Cybersquatting Consumer Protection Act (“ACPA”) Claim (“Plaintiff’s MSA”). Docket No.
189. Connexus Corporation, Firstlook, Inc. and Navigation Catalyst Systems (the “Connexus
Defendants”) also filed a Motion for Summary Adjudication on Plaintiff’s ACPA Claim
(“Connexus Defendants’ MSA”). Docket No. 87. The Epic Media Group (“Epic Media”) filed a
Motion for Summary Judgment on all of Plaintiff’s claims (“Epic Media MSJ”). Docket No.
178.
On August 15, 2011, Plaintiff filed an Opposition to Epic Media’s Motion. The
Connexus Defendants filed a Response to Plaintiff’s Motion consisting of: (i) twenty pages of
evidentiary objections and responses to Plaintiff’s “evidence”, (ii) twenty pages of facts in
dispute, and (ii) a twenty page memorandum of law. Epic Media and the Connexus Defendants
also filed an objection/motion pursuant to Daubert to strike the “expert” testimony of Chris
Schwerzler (“Daubert Motion”) and prevent any “expert” testimony or evidence by Schwerzler
at the trial in this matter. The parties will file their respective reply briefs on August 30, 2011.
The three Motions for Summary Adjudication/Judgment are set for hearing on September
15, 2011. In connection with Plaintiff’s Motion, the Court must necessarily decide the Daubert
Motion. The pretrial conference is set for September 26, 2011, and trial is scheduled to
commence on October 3, 2011. Although there is no established deadline yet, consistent with
the practice in this District, the pretrial order would have to be lodged in advance of the pretrial
conference on September 26, 2011.
//

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III.

ARGUMENT
A.

Judicial Economy and the Parties’ Resources Are Not Well-Served by Preparing
for a Trial Whose Boundaries Are Not Yet Known

There are two primary reasons why the present trial date creates a significant difficulty
for the parties. Standing alone, either reason would constitute “good cause” for continuing the
pretrial and trial dates. Together, they lead to the conclusion that the “fair and efficient”
administration of justice requires a continuance of these dates.
First, it would be impossible to efficiently prepare for trial given the pending dates.
Because trial is scheduled to commence on October 3, 2011, pursuant to Rule 26(a)(3)(B), the
parties must exchange witness lists and exhibit lists by September 2, 2011. Nevertheless, the
parties’ respective Motions are not scheduled to be heard until September 15, 2011.
Immediately, a conundrum arises because the parties must exchange witness and exhibit lists
without knowing what parties and claims are going to proceed to trial in this matter.
Notably, the Motions to be heard on September 15, 2011 are not minor. They have the
ability to significantly alter the landscape of the trial in this matter. For example, if the Court
grants Epic Media’s MSJ, Epic Media will be dismissed from this matter altogether which means
that the trial in this matter would not include Epic Media’s witnesses or the issues of whether
Epic Media and Connexus Corporation merged or whether Epic Media is an alter ego of
Connexus. If the Court grants Plaintiff’s MSA, Plaintiff intends to dismiss all of its remaining
claims for relief, and the trial in this matter would consist of a single issue: the amount of
statutory damages, if any, to be awarded to Plaintiff pursuant to the ACPA. If, on the other hand,

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the Court granted the Connexus’ Defendants MSA, then a significant amount of evidence and
witnesses that the parties intend to produce at trial would not be needed. 1
As a result, commencing trial preparation in accordance with Rule 26 prior to September
15, 2011 simply results in gross inefficiency. To say that the parties can simply start preparing
for trial as though the Court will deny all the Motions and trial will consist of all issues, claims
and witnesses is no solution. First, it would be inefficient and extremely expensive. The parties
should not be forced to undertake that burden and cost until, in fact, the Court ruled on the
Motions definitively. Moreover, even if the Court were to deny all the motions for summary
judgment/adjudication on September 15, 2011, there are still evidentiary rulings that the Court is
obligated to make in connection with the Motions that would affect how the parties prepare for
trial and what witnesses and evidence they choose to present.
For example, if the Court ruled that Plaintiff’s “expert,” Chris Schwerzler, could not
testify at trial, that would, obviously, affect the evidence that Plaintiff put on this respect as well
as Defendants’ strategy for Schwerzler’s cross-examination. Similarly, if the Court sustained the
Connexus Defendants’ various objections to the documents submitted by Plaintiff’s counsel in
connection with Plaintiff’s MSA, Plaintiff’s exhibit and witness lists would look significantly
different than if the Court overruled those objections (e.g., it may choose to present witnesses to
authenticate documents that were not authenticated in connection with the filing of Plaintiff’s
MSA).
Second, even if the September 2, 2011 deadline did not present any obstacle to trial
preparation, the short time period between September 15, 2011 and the pre-trial conference of
1

Indeed, Defendants suspect that it is highly unlikely that this matter would even proceed to trial
if Plaintiff lost on its ACPA claim.
4

September 26, 2011 does. Local Rule 16.1(f) requires that all pending dispositive motions must
be resolved at least seven (7) days before the pretrial order is submitted to the Court. As noted,
above, the Connexus Defendants do not believe that the Court has issued a date for submitting
the pretrial order, but, since the pretrial conference is scheduled for Monday, September 26,
2011, the latest date for submission of the pretrial order would necessarily be Friday, September
23, 2011. Of course, that would not provide the Court any time to review the proposed order
prior to the pretrial conference (unless the Court was inclined to spend the preceding weekend
doing so). As a result, it is more likely that the pretrial order would need to be submitted, at the
latest, on Thursday, September 22, 2011 so that the Court could review the order on Friday,
September 23, 2011.
Once again, the procedural conundrum is apparent. In order to comply with Rule 16.1(f),
the Court must be ready to rule on all four pending Motions and all the evidentiary objections
submitted by the parties in connection with those Motions from the bench on September 15,
2011. The parties must be ready to absorb all of the Court’s rulings in this regard and, within a
week, prepare and lodge the pretrial order and the Bench Book required by the Court’s Order of
April 14, 2011 which consists of, inter alia,: (i) a theory of the case, (ii) proposed voir dire, (iii)
witness lists, (iv) exhibit lists, (v) final jury instructions, and (vi) a list of remaining evidentiary
issues. Simultaneously, that same week, the parties would be preparing all of their motions in
limine which also need to be filed on September 26, 2011.2

2

It would not be efficient or even possible to prepare all motions in limine prior to September
15, 2011 since many of the motions may be affected by the Court’s rulings on the evidentiary
objections in connections with the Motions or the Court’s rulings on the Motions themselves.
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Of course, if the Court must be ready to rule from the bench on September 15 th, it leads
one to wonder whether the Court would have the time to properly consider the oral argument on
the Motions that would be presented that same day and incorporate those arguments, if
necessary, into its ruling.
In short, adhering to the current schedule would place a significant burden on both the
Court and the parties. Since the scope of the trial would not be known until September 15, 2011,
at the earliest, the parties would essentially have one week between September 15, 2011 and
September 22, 2011 to adequately prepare their pretrial submissions in this matter, and a few
short weeks to prepare for trial itself. That is simply not sufficient time, particularly in a case
where Plaintiff intends to ask for tens of millions of dollars.
For the foregoing reasons, the Defendants respectfully request that the pretrial conference
and trial dates be vacated and continued until a future point in time, to be decided after the Court
has ruled on the pending Motions.
B.

The Court Should Be Mindful That the Present Trial Schedule Can Be Exploited
in a Request for Attorneys Fees.

15 U.S.C. § 1117(a) provides that the prevailing party in this matter may seek reasonable
attorneys’ fees upon a showing of “exceptional” circumstances. While the Defendants take no
position as to whether this party is “exceptional,” it is evident that Plaintiff does believe this to
be an “exceptional” case and will seek attorneys’ fees in the event it prevails.
Unfortunately, the present trial schedule can be exploited to inflate such a request. Since
the boundaries of the trial are not known, and, at present, all claims, issues, and witnesses are to
be presented at trial, Plaintiff can spend hundreds of hours preparing for a trial of broad scope.

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However, if the Court’s decisions on the pending Motions significantly alter the scope of the trial
or the witnesses and evidence to be presented at trial, such that the actual trial is narrower in
scope, much of Plaintiff’s trial preparation will have been needless. Nevertheless, Defendants
fully expect that, in the event it prevails, Plaintiff will seek to recover such fees.
Put simply, there is no need for the parties to begin preparing for a trial which might
ultimately be much narrower in scope than is presently imagined. That is true irrespective of
whose client ultimately pays the bill, but it is even more true when a fee-shifting provision exists
and can be exploited to drive up attorneys’ fees.
C.

There Is No Prejudice to the Parties in Continuing This Matter While the Court
Considers Serious Issues of Fact and Law.

As explained, above, the parties are presently in the process of preparing for a trial that
may or may not look very differently, depending on how the Court rules on the pending Motions.
As a result, a significant amount of money may be spent on ultimately unnecessary issues. In
addition, even if the Court rules on all pending Motions on September 15th, the parties will
essentially have one week to prepare numerous pretrial documents and to prepare for the actual
trial (i.e., a trial whose scope would then be known). Clearly, there is significant prejudice in
permitting the trial schedule to remain as is.
In addition, this Court should not be in a position where it is forced to race to a
conclusion on the Motions by September 15th. The cross-motions on the ACPA claim raise
serious issues, including some issues of first impression which may be dispositive of the most
important claim in this lawsuit (e.g., whether the “willful blindness” test from a traditional
Lanham Act claim can be imported into an ACPA claim and, if so, what would constitute

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“willful blindness” in the ACPA context).3 The Connexus Defendants’ also have numerous
evidentiary objections including a Daubert Motion that seeks to exclude Plaintiff’s only expert
witness in this matter. To the extent that the Court has questions for the parties or wishes to
actually consider the arguments made at the hearing on September 15 th, it would be nearly
impossible to rule from the bench on that day as would be required by Local Rule 16.1(f).
On the other hand, there is no prejudice to the parties in continuing the trial date. The
parties can wait for the Court’s ruling on the pending Motions and, when the rulings are issued,
prepare for a trial whose scope is known with the full knowledge of the evidentiary rulings made
by the Court in connection with the pending Motions. Clearly, that alternative represents a more
efficient administration of this matter.
D.

Plaintiff’s Suggested Scheduling Violates the Local Rules and Is Patently Unfair.

Plaintiff does not join in this request, but Plaintiff’s Opposition to Epic Media’s MSJ
creates a scheduling difficulty of its own. Plaintiff proposes that the Court essentially “punt’ on
Epic Media’s pending MSJ until after the trial in this matter. As will be explained more fully in
Epic Media’s reply brief, that proposal would run afoul of Rule 56.
Separate and apart from that, though, and pertinent to the issue raised in this motion,
Plaintiff’s proposed scheduling would run afoul of Local Rule 16.1(f). Pursuant to Local Rule
16.1(f), there can be no pretrial conference or trial in this matter until after all pending
dispositive motions have been resolved. Plaintiff’s proposed schedule—trial first, then
resolution of a pending, dispositive motion for summary judgment later—would violate that rule
3

Indeed, Plaintiff’s MSA asks that the Court consider and rule on whether 288 different domain
names registered by NCS over the course of 5 years are confusingly similar to Plaintiff’s marks
and whether NCS had the bad faith intent to profit from the goodwill of Plaintiff’s marks when it
registered those 288 different names.
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and turn the trial process on its head. Epic Media is entitled to know whether or not it is going to
be a defendant in this matter prior to trial, and Plaintiff’s proposed schedule presents an
untenable and unfair proposition.
IV.

CONCLUSION
It is in the best interest of the Court, the parties, and judicial economy to continue the

pretrial conference and the trial date to a future point in time so that there is a reasonable amount
of time between the time that the Court rules on the pending Motions and the date by which the
parties must submit the pretrial order. For the reasons stated forth in this Motion, the Defendants
respectfully request that the Court continue the pretrial conference and the trial in this matter.
RESPECTFULLY SUBMITTED this 15th day of August, 2011 (Pacific time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on August 15, 2011, Pacific Time, I electronically filed the
foregoing paper with the Court using the ECF system which will send notification of
such filing to the following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
BUTZEL LONG, P.C.
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

10