I/P Engine, Inc. v. AOL, Inc. et al

Filing 825

MOTION for New Trial on the Dollar Amount of Past Damages by I/P Engine, Inc.. (Attachments: # 1 Proposed Order)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
)
)
Plaintiff,
)
v.
)
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)
I/P ENGINE, INC.,

Civ. Action No. 2:11-cv-512

PLAINTIFF I/P ENGINE, INC.’S RULE 59
MOTION FOR A NEW TRIAL ON THE DOLLAR AMOUNT OF PAST DAMAGES

Plaintiff I/P Engine, Inc. (“I/P Engine”) respectfully moves this Court, pursuant to Rule
59 of the Federal Rules of Civil Procedure, to vacate the jury’s responses to question III.C of the
verdict form and order a new trial to determine the dollar amount of past damages.
As set forth in the accompanying Memorandum of Law, this Court should order a new
trial on the dollar amount of past damages for five reasons. First, the timing and Court
implementation of its laches ruling after the close of the parties’ respective cases, and the Court’s
forbidding I/P Engine to identify a specific damages amount to the jury, was fundamentally
unfair and highly prejudicial to I/P Engine. I/P Engine was precluded from explaining how the
evidence supported $118 million of damages accrued since September 15, 2011. Second, this
Court wrongly prevented I/P Engine from introducing evidence of Defendants’ accused
revenues, which formed the total revenue base. This evidence also would have enabled I/P
Engine to explain the damages amounts from September 15, 2011. Third, the jury’s damages
award is internally inconsistent; the jury awarded 35% of I/P Engine’s initial claimed damages
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against four defendants, but only 3.5% of I/P Engine’s initial claimed damages against Google.
Fourth, as set forth in detail in I/P Engine’s post-trial motion regarding laches, this Court’s
exclusion of damages from September 15, 2005 to September 15, 2011 was error. Fifth,
applying laches to AOL and Gannett was error, because there was no record evidence that either
had indemnification agreements with Google.

Dated: December 18, 2012

By: /s/ Jeffrey K. Sherwood
Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone:
[phone]
Facsimile:
[phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
Dawn Rudenko Albert
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone:
[phone]
Facsimile:
[phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 18th day of December, 2012, the foregoing PLAINTIFF I/P
ENGINE, INC.’S RULE 59 MOTION FOR A NEW TRIAL ON THE DOLLAR
AMOUNT OF PAST DAMAGES, was served via the Court’s CM/ECF system on the
following:
Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

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