Home Gambling Network, Inc., etal VS Chris Piche, etal
Filing
389
ORDER Denying 375 Motion for Reconsideration Signed by Judge David A. Ezra on 11/04/2014. (Copies have been distributed pursuant to the NEF - TR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
HOME GAMBLING NETWORK, INC., §
et al.,
§
§
Plaintiffs,
§
§
vs.
§
§
CHRIS PICHE, et al.,
§
§
Defendants.
§
__________________________________§
No. 2:05-CV-610-DAE
ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
Before the Court is the Motion for Reconsideration (Dkt. # 375)
brought by Plaintiffs Home Gambling Network, Inc. and Mel Molnick
(collectively, “Plaintiffs”). Pursuant to Local Rule 78-2, the Court finds this
matter suitable for disposition without a hearing. After reviewing the Motion and
the supporting and opposing memoranda, the Court DENIES Plaintiffs’ Motion for
Reconsideration.
BACKGROUND
On September 30, 2013, more than seven years after the filing of the
Plaintiffs’ First Amended Complaint, this Court granted Defendants’ Motion for
Summary Judgment in its entirety, dismissing all of Plaintiffs’ claims. 1 (Dkt.
# 333.) In relevant part, the Court concluded that (1) there was no liability under
35 U.S.C. § 271(a) because at least one of the method steps was performed outside
the United States (id. at 16); (2) there was no inducement to infringe the patent
because there was no direct infringement of a patent (id.); (3) Defendants did not
infringe the Method Patent by operating a website and licensing software that
permitted sports betting, lottery, keno, and bingo games because these activities are
excluded from the Method Patent pursuant to the prosecution history disclaimer
(id. at 23); and (4) there was no contractual liability of Defendants because the
HGN Contract did not prevent CWC from licensing the CWC Software to third
parties for bingo, keno, lottery or sporting events (id. at 25). Importantly, the
Court found that Plaintiffs purposefully attempted to exclude subject matter that
was beyond the scope of the Method Patent from the license granted to CWC, so
that they could license that subject matter to others for money. 2 (Id. at 26.)
On October 24, 2013, Defendants filed a Motion for Attorney Fees
and Costs (Dkt. # 337), arguing they are entitled to a total award of $1,806,416.59.
1
The Court’s May 22, 2014 Order Granting Attorneys’ Fees and Costs (Dkt.
# 367) provides a detailed recitation of the factual and procedural history of this
case; thus, the Court will not re-state that information here.
2
The Court’s Order was affirmed by the Federal Circuit in a Judgment entered
June 9, 2014. (See Dkt. # 369 (Judgment of United States Court of Appeals for
the Federal Circuit).)
2
(Id. at 1.) Defendants argued that (1) this case is an “exceptional” case, entitling
them to attorneys’ fees pursuant to 35 U.S.C. § 285; (2) they are entitled to their
attorneys’ fees, costs and double damages under the patent license agreement; and
(3) the attorneys’ fees, costs, and damages claimed are reasonable. (Id.)
Plaintiffs responded (Dkt. # 347), arguing (1) this case does not meet
the “objectively baseless” standard required for an award of attorney fees under 35
U.S.C. § 285, and (2) Defendants did not meet their burden of establishing an
exceptional case by clear and convincing evidence. (Id.)
On April 29, 2014, approximately two weeks before the scheduled
hearing on the Motion for Attorneys’ Fees, the United States Supreme Court issued
Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184, 134 S. Ct. 1749
(Apr. 29, 2014) and Highmark Inc. v. Allcare Management System, Inc., No.
12-1163, 134 S. Ct. 1744 (Apr. 29, 2014), changing the standard under which a
case is found to be “exceptional” under 35 U.S.C. § 285. In light of the Supreme
Court’s decisions, the Court ordered the parties to submit simultaneous
supplemental briefing, which the Court considered in conjunction with the original
motions.
On May 22, 2014, the Court issued an Order Granting Defendants’
Motion for Attorneys’ Fees, concluding that based on the totality of the
circumstances, this is an “exceptional case” under 35 U.S.C. § 285. (Dkt. # 367.)
3
Specifically, the Court found that the totality of the circumstances warranted a
finding of “exceptionality” in this case because (1) Plaintiffs alleged in their
amended complaint that live casinos were located outside the United States in
Costa Rica despite controlling Federal Circuit law holding that an infringement of
a method patent could not lie unless all steps were performed in the United States;
(2) Plaintiffs attempted to sue for infringement of a patent that they did not own
and in fact voluntarily relinquished years earlier; and (3) Plaintiffs engaged in
patent misuse by purposefully attempting to limit Defendants’ usage of subject
matter that was beyond the scope of the Method Patent from the license granted to
CWC, so that they could license that subject matter to others for money. 3 (Id. at
22.)
Because Plaintiffs did not specifically object to any of Defendants’
calculations regarding either the amount of attorneys’ fees awarded under § 285 or
the amount of damages under the contract, instead remaining steadfast in their
opposition to Defendants receiving any fees whatsoever, the Court, in light of its
earlier conclusion that Defendants are entitled to attorneys’ fees and damages,
ordered the parties to submit briefing on the issue of the reasonableness of
attorneys’ fees and the amount of damages. (Id. at 29.)
3
Additionally, the Court concluded that Defendants, as the prevailing party, are
entitled to recover “reasonable attorney’s fees, court costs and double damages”
pursuant to the licensing agreement between the parties. (Dkt. # 367 at 29.)
4
On July 8, 2014, Plaintiffs timely filed their supplemental brief.
(Dkt. # 374.) However, on July 9, 2014, Plaintiffs also filed a “Supplemental
Brief Requesting Reconsideration of the Court’s Finding On An ‘Exceptional’
Case.” (Dkt. # 374.) The Court then issued an Order clarifying the
supplemental briefing schedule ordered by the Court, stating that to the extent
Plaintiffs’ motion requesting reconsideration is labeled a “supplemental brief,” that
designation was incorrect because the Court very clearly requested supplemental
briefing only on Defendants’ calculations as set forth in their original Motion for
Attorney Fees. (Dkt. # 382.) However, the Court concluded that Plaintiffs’
“supplemental brief” requesting reconsideration would be construed as a Motion
for Reconsideration, to which Defendants could respond in a separate response
within the time limits as set forth by the Local Rules. (Id. at 3.)
Plaintiffs’ Motion, construed as Motion for Reconsideration, is now
before the Court. Defendants have filed a Response in opposition to Defendants’
Motion for Reconsideration (Dkt. # 385), and Plaintiffs have filed a Reply (Dkt.
# 388).
ANALYSIS
I.
Motion for Reconsideration
A district court “possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City
5
of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir.2001)
(internal citation omitted). The Court should only grant motions for
reconsideration when the moving party presents a valid reason for reconsideration
and the facts or law strongly support reversing the prior decision. Frasure v. United
States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). The Ninth Circuit has
recognized three circumstances in which a district court should grant a motion for
reconsideration: “if the district court (1) is presented with newly discovered
evidence, (2) has committed clear error or the initial decision was manifestly unjust,
or (3) there has been an intervening change in controlling law.” Nunes v. Ashcroft,
375 F.3d 805, 807–08 (9th Cir.2004) (quoting Sch. Dist. No. 1J v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir.1993)).
The Federal Rules of Civil Procedure do not contain a provision
governing the review of interlocutory orders. However, “[a]s long as a district
court has jurisdiction over the over the case, then it possesses the inherent procedure
power to reconsider, rescind, or modify an interlocutory order for cause seen by it to
be sufficient.” City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254
F.3d 882, 885 (9th Cir. 2001).
Other districts within the Ninth Circuit have adopted local rules
governing reconsideration of interlocutory orders; however, the District of Nevada
has not done so. See McGee v. Donahoe, No. 2:13-CV-1426-RFB-VCF, 2014 WL
6
43844985, at *2 (D. Nev. Sept. 4, 2014). “Rather, this district has used the standard
for a motion to alter or amend judgment under Rule 59(e).” Id. (citing Henry v.
Rizzolo, No. 8-00635, 2010 WL 3636278, at *1 (D. Nev. Sept. 10, 2010)).
Thus, in the District of Nevada, a motion for reconsideration must set
forth: “(1) some valid reason why the court should revisit its prior order, and
(2) facts or law of a ‘strongly convincing nature’ in support of reversing the prior
decision.” Id. (citing Henry, 2010 WL 3636278, at *1) (emphasis added): see also
Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003) (using same
standard in motion for reconsideration of district court’s denial of defendant’s
motion to dismiss); Fetrow-Fix v. Harrah's Entm't, Inc., No. 2:10-CV-00560-RLH,
2011 WL 2313650, at *1-2 (D. Nev. June 9, 2011). Additionally, reconsideration is
appropriate if the court is “(1) presented with newly discovered evidence,
(2) committed clear error or the initial decision was manifestly unjust, or (3) if there
is an intervening change in controlling law.” Henry, 2010 WL 3636278, at *1; see
also Nunes, 375 F.3d at 807–08; Frasure, 256 F. Supp. 2d at 1183.
However, “[a] motion for reconsideration should not merely present
arguments previously raised; that is, a motion for reconsideration is not a vehicle
permitting the unsuccessful party to reiterate arguments previously presented.”
Fetrow-Fix, 2011 WL 2313650, at *1–2 (citing Merozoite v. Thorp, 52 F.3d 252,
255 (9th Cir.1995); Khan v. Fasano, 194 F.Supp.2d 1134, 1136 (S.D.Cal.2001) (“A
7
party cannot have relief under this rule merely because he or she is unhappy with the
judgment.”)).
Plaintiffs argue the Court should reconsider its decision that this case is
“exceptional” because (1) the Court decided that the case was “exceptional” under
the dramatically changed standard set by the Supreme Court without allowing
Plaintiffs to revise their opposition; (2) despite the Court’s prior rulings, Plaintiffs
had a good faith basis for maintaining the lawsuit because it was supported by
controlling Federal Circuit’s law at the time the case was initially filed; (3) Plaintiffs
did not have an opportunity to set forth their theory of infringement in detail; and
(4) although the case has been decided against Plaintiffs on the merits, the Court
should consider the patent claim construction contentions and theory of
infringement that Plaintiffs intended to present at a patent claim construction
hearing. (Dkt. # 375 at 1–2.) The Court will address each of their arguments in
turn, keeping in mind the standard under which reconsideration is warranted.
A.
No opportunity to revise their opposition
Plaintiffs first argue that the Court decided this case was “exceptional”
under the “dramatically changed standard” set forth by the Supreme Court in Octane
and Highmark without allowing Plaintiffs an opportunity to revise their opposition
in response to those two cases. (Dkt. # 375 at 2.) This assertion, however, is
patently false.
8
On April 29, 2014, in light of the Supreme Court’s issuance of the
opinions in Octane and Highmark, the Court, sua sponte on that very same day,
issued an Order directing the parties to file supplemental briefing specifically
addressing those opinions. (Dkt. # 358.) On May 6, 2014, Plaintiffs filed their
Supplemental Briefing Concerning Motion for Attorneys’ Fees. (Dkt. # 360.)
Although Plaintiffs argued in their supplemental brief that they “should be given a
fair opportunity to re-submit their opposition to the motion,” Plaintiffs failed to
recognize that, in fact, the Court already had provided that opportunity to them by
requesting supplemental briefs. That Plaintiffs failed to adequately seize upon that
opportunity (instead choosing to focus the majority of their supplemental brief on
other extraneous issues) does not mean that they were not provided with an
opportunity to address the Octane and Highmark opinions. The Court DENIES
reconsideration on this point.
B.
Good faith basis for maintaining the suit
Next, Plaintiffs argue that this case was filed in good faith. (Dkt. #375
at 4.) Specifically, Plaintiffs assert that at the time they filed the instant case, the
“governing law fully supported Plaintiffs’ theory of infringement” because the first
opinion in NTP, Inc. v. Research in Motion, Ltd., 392 F.3d 1336 (Fed. Cir. 2004),
withdrawn and superseded on rehearing by, NTP, Inc. v. Research in Motion, Ltd.,
418 F.23d 1282 (Fed. Cir. 2005), published on December 14, 2004, was the
9
governing law until it was withdrawn on August 2, 2005, which occurred after this
case was filed. However, this argument is wholly without merit and moreover
demonstrates a complete lack of candor with the Court.
In the Order Granting Attorneys’ Fees, the Court discussed NTP and its
effect on the validity of Plaintiffs’ claims. While Plaintiffs are correct that they
filed their Complaint prior to the August 2, 2005 withdrawal of the decision in NTP
and resulting change in law, they fail to mention that, as discussed in the Court’s
Order, Plaintiffs’ filed a First Amended Complaint on July 10, 2006, nearly one year
after Federal Circuit’s August 2, 2005 Opinion in NTP.
The August 2, 2005 NTP holding held that conduct occurring outside of
the United States cannot infringe a method covered by a United States patent; this
was controlling law prior to the filing of Plaintiffs’ July 10, 2006 First Amended
Complaint. In the First Amended Complaint, Plaintiffs never contested that
portions of Defendants’ operations were conducted outside the United States in
Costa Rica. Thus, as pointed out in the Court’s Order granting Defendants’ Motion
for Summary Judgment, Plaintiffs should have known that no cause of action for
patent infringement could lie in this case pursuant to NTP.
Plaintiffs attempt to justify this action by arguing that the case was
initially filed in good faith; however, that the case was initially filed in good faith in
no way excuses filing an Amended Complaint after the law was changed, directly
10
affecting Plaintiffs’ claims. Indeed, Plaintiffs even acknowledge this in their
Motion for Reconsideration, stating: “Indeed, the law was changed after the
complaint was filed. But the fact remains that no one can contend that this case was
commenced in bad faith, or that the patent suit was unwarranted when it was filed.”
(Dkt. # 375 at 5.) Plaintiffs then cite Bianco v. Globus Medical, Inc., No.
2-12-cv-00147-WCB, 2014WL 1904228, at *3 (E.D. Tex. May 12, 2014), for the
proposition that “a party may not be chargeable with anticipating unexpected
changes in the law.” While that may indeed be true, the issue here is not with the
original Complaint that which may have been filed in good faith, but with the
Amended Complaint that was filed in contravention of established controlling law
that was in effect at the time it was filed.
Because it is apparent Plaintiffs’ counsel may have overlooked it, the
mandate of Rule 11 of the Federal Rules of Civil Procedure is provided here:
Representations to the Court. By presenting to the court a pleading,
written motion, or other paper – whether be signing, filing, submitting,
or later advocating it – an attorney . . . certifies that to the best of the
person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(2) the claims, defenses, and other legal contentions are
warranted by existing law . . . .
Fed. R. Civ. P. 11 (emphasis added). Rule 11 applies equally to original
Complaints as well as to all other “pleading[s], written motion[s], or other paper[s]”
11
submitted to the Court, including Amended Complaints.
Based on the foregoing, the Court DENIES reconsideration on this
point.
C.
No opportunity to set forth theory of infringement in detail
Next, Defendants argue that reconsideration is appropriate because
they did not have an opportunity to set forth their theory of infringement in detail.
(Dkt. # 375 at 2.) Specifically, Plaintiffs assert that they had expected they would
have an opportunity to present their detailed patent claim construction contentions in
a Markman patent claim construction hearing. Plaintiffs argue that given the
timing of the Defendants’ summary judgment motion on the grounds that one step of
the patented method, step (ix), was not performed in the United States, Plaintiffs did
not have an opportunity to go through every step in the patent claim and present the
details of their theory of infringement. (Dkt. # 375 at 3.)
When Defendants moved for summary judgment nearly six years after
their first Motion for Summary Judgment was partially denied in order to permit the
parties to engage in further discovery, Defendants contended that “the record [was]
ripe for summary judgment on the remaining counts of the Complaint.” (Dkt. # 312
at 2.) Concluding there was no genuine issue as to any material fact, the Court
granted Defendant’s’ Motion for Summary Judgment in its entirety. If the Court
had felt it necessary, it would have allowed further discovery, as it did after it
12
partially denied Defendants’ first Motion for Summary Judgment to permit further
discovery. (Dkt. # 143.)
However, although Plaintiffs asserted in their response
to Defendants’ second Motion for Summary Judgment that “[d]iscovery is need[ed]
to prove instances of infringement that occurred in the United States,” (Dkt. # 323 at
30), the Court specifically concluded that “it is clear that additional discovery will
not alter the outcome of this case.” (Dkt. # 333 at 30.)
Plaintiffs have not demonstrated any substantial reason why this portion
of the Court’s ruling should be disturbed. Plaintiffs were not granted additional
discovery for a second time because the Court concluded that no additional
discovery would alter the outcome of this case; thus, their request for
reconsideration on the basis that they did not have an opportunity for additional
discovery (nearly eight years after the case was commenced) is DENIED.
D.
In deciding whether attorneys’ fees were warranted, the Court should
have considered the patent claim construction and theory of
infringement that Plaintiffs intended to present at a patent claim
construction hearing
Because Plaintiffs assert they did not have an opportunity to present
their patent claim construction arguments in detail, Plaintiffs next ask the Court to
reconsider the determination that this is an “exceptional” case in view of the detailed
patent claim construction arguments that Plaintiffs would have offered had there
been a Markman hearing on patent claim construction. (Dkt. # 375 at 3.)
13
Plaintiffs argue that Defendants’ summary judgment motion was based on where
they allegedly performed the method steps and not on whether they performed the
steps of the patented method; however, if Defendants “had not convinced the Court
that they successfully evaded the territorial reach of the United States patent laws,”
Plaintiffs argue that it would be shown that they would have infringed the patent.
(Id.)
Plaintiffs go into considerable detail regarding their hypothetical patent
claim construction contentions. (See id. at 6–15.) Defendants point out that
Plaintiffs fail to explain why they did not put these arguments in their opposition to
the Motion for Attorneys’ Fees in the first place. (Dkt. # 385 at 5.) Defendants
argue that at the time Plaintiffs filed their response to Defendants’ Motion for
Attorneys’ Fees, it was clear that summary judgment had long since been granted
and that no Markman hearing would be held—thus, there is no explanation why
these arguments Plaintiffs attempt to now assert could not have been presented to
and considered by the Court in their original response to the attorneys’ fees motion.
Citing to Rule 60(b) 4 of the Rules of Federal Civil Procedure, Defendants argue that
4 Rule 60 provides limited grounds for relief from an order:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
14
these grounds for reconsideration are not proper under Rule 60(b). (Dkt. # 385 at
5.)
Plaintiffs reply that this is not a Rule 60(b) motion, but rather is
addressed to the Court’s inherent power to reconsider and modify an interlocutory
order. Indeed, as stated above, the Federal Rules of Civil Procedure do not contain
a provision governing the review of interlocutory orders, and the District of Nevada
has not adopted local rules regarding review of such orders. See McGee, 2014 WL
43844985, at *2. Thus, this district has used the standard for a motion to alter or
amend judgment under Rule 59(e), id., and the motion for reconsideration must
therefore set forth: “(1) some valid reason why the court should revisit its prior
order, and (2) facts or law of a ‘strongly convincing nature’ in support of reversing
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to more for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been revered or
vacated; or applying it prospectively is no longer equitable;
or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
15
the prior decision.” 5 Id. (citing Henry, 2010 WL 3636278, at *1) (emphasis
added). 6 The Court concludes Plaintiffs have failed to meet his standard.
Plaintiffs provide a detailed discussion of how their patent
infringement contentions were made in good faith and how, if there had been more
discovery, their patent claim construction contentions would have shown direct
infringement by players in the United States, thus rendering Defendants liable for
inducing that direct infringement. (Dkt. # 375 at 15.) These contentions, however,
belie what actually occurred in this case and what was decided by the Court on
summary judgment (and later affirmed by the Federal Circuit).
First, although Plaintiffs contend that the Court “apparently
misunderstood” their argument that Defendants induced the direct infringement by
5
Additionally, as discussed above, reconsideration is appropriate if the court is “(1)
presented with newly discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an intervening change in controlling
law.” Henry, 2010 WL 3636278, at *1. However, with regards to Plaintiffs’
argument on their hypothetical patent claim construction contentions that would
have been developed with more discovery had the case not been decided against
them on summary judgment, that argument does not fit in any of these three
categories for when reconsideration is appropriate—it is not based on newly
discovered evidence, does not demonstrate the Court committed clear error or the
initial decision was manifestly unjust, nor is it based on an intervening change in
controlling law. See McGee, 2014 WL 43844985, at *2.
6
Considering this broader standard of review for reconsideration of interlocutory
orders, the Court will consider the substance of Plaintiffs’ arguments for
reconsideration regarding the patent claim construction arguments that would have
been presented, despite that Plaintiffs failed to assert these arguments in their
opposition to the Motion for Attorneys’ Fees in the first place.
16
players who perform steps in the United States in granting summary judgment, the
Court’s Order and the parties’ arguments reflect otherwise.
In the Court’s Order Granting Summary Judgment, the Court noted that
there was no liability for direct infringement under 35 U.S.C. § 271(a) because at
least one of the method steps was performed outside the United States. (Dkt. # 333
at 17.) Specifically, the Court concluded that there could be no direct infringement
by either Defendants or users in the United States. The Court noted:
Plaintiffs do not argue that CWC’s Live Casino and servers were
located anywhere other than Costa Rica or that interaction with the
Live Casino and servers was not a necessary step in carrying out the
Method Patent. Thus, to the extent Plaintiffs assert that “Defendants
have, in instances where users in the United States have gambled online
using the CWC system, induced parties to collectively perform all of
the steps of the claimed method in the United States,” this statement is
not supported by the evidence.7
(Id.) Accordingly, the Court has already considered and rejected Plaintiffs’
argument that Defendants induced infringement in those scenarios where users in
the United States performed the steps of the method patent. 8 Plaintiffs subsequently
7
The Court further concluded, “[m]oreover, to the extent Plaintiffs contend that
acts of inducement may be performed outside the United States, this argument is
unavailing in this case because there is no collection of acts leading to direct
infringement. Accordingly, there can be no liability for inducement to
infringement.” (Dkt. # 333 at 17–18.)
8
Plaintiffs made this same argument in their response to Defendants’ Motion for
Summary Judgment, arguing: “In this case, Defendants have, in instances where
users in the United States have gambled online using the CWC system, induced
17
appealed the Court’s Order Granting Defendants’ Motion for Summary Judgment
and the Judgment in favor of Defendants (Dkt. # 342), which the Federal Circuit
affirmed in all respects (Dkt. # 369).
“A motion for reconsideration is not an avenue to re-litigate the same
issues and arguments upon which the court already has ruled.” U.S. Aviation
Underwriters, Inc. v. WesAir, LLC, No. 208-CV-00891-PMP-LRL, 2010 WL
1462707, at *2 (D. Nev. Apr. 12, 2010). Therefore, the Court DENIES
reconsideration on the basis that the Court should have considered patent claim
construction contentions and theories of infringement that Plaintiffs would have
presented 9 at a patent claim construction hearing—Plaintiffs’ arguments regarding
Defendants’ inducement to infringe based upon United States users’ direct
infringement of the method patent were considered and rejected by this Court in its
Order Granting Defendants’ Motion for Summary Judgment.
In any event, the Court ultimately decided that this case was
other parties to collectively perform all of the steps in the claimed method in the
United States, even if no single party has performed all of the steps itself.” (Dkt.
# 323 at 12.)
9
The Court notes that all of Plaintiffs’ hypothetical arguments asserted in their
Motion for Reconsideration are just that—hypothetical. As the Court concluded
in granting summary judgment, “additional discovery will not alter the outcome of
this case.” (Dkt. # 333 at 30.) Thus, the Court concluded at that time that no
amount of discovery would support Plaintiffs’ contentions; the Court sees no reason
to revisit the issue now.
18
“exceptional” based on the totality of the circumstances, specifically that:
(1) Plaintiffs alleged in their amended complaint that live casinos were located
outside the United States in Costa Rica despite controlling Federal Circuit law
holding that an infringement of a method patent could not lie unless all steps were
performed in the United States; (2) Plaintiffs attempted to sue for infringement of a
patent that they did not own and in fact voluntarily relinquished years earlier; and
(3) Plaintiffs engaged in patent misuse by purposefully attempting to limit
Defendants’ usage of subject matter that was beyond the scope of the Method
Patent from the license granted to CWC, so that they could license that subject
matter to others for money. (Dkt. # 367 at 22.) Plaintiff’s argument asserted
here—that their inducement to infringement claims may have been demonstrated
to have merit with further discovery—does not detract from the Court’s findings in
its Order Granting Motion for Attorneys’ Fees and as listed above. Accordingly,
Plaintiffs fails to demonstrate how these facts are of a ‘strongly convincing nature’
such to support a reversal of the Court’s decision on attorneys’ fees. See McGee,
2014 WL 43844985, at *2.
19
CONCLUSION
Based on the foregoing, Plaintiffs’ Motion for Reconsideration (Dkt.
# 375) is DENIED. Because of the amount of fees, damages, and costs requested
by Defendants, and in fairness to both parties, the Court will hear oral argument on
the issue of the amount of damages and the reasonableness of the amount of fees and
costs requested. A hearing date will be set by the Court at a time convenient to the
parties and to the Court.
IT IS SO ORDERED.
Dated: Las Vegas, Nevada, November 4, 2014.
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