Certusview Technologies, LLC v. S & N Locating Services, LLC et al
Filing
329
ORDER Denying 257 Motion for Attorney Fees. The Court DENIES WITHOUT PREJUDICE Defendants' Motion for Exceptional Case Finding & Attorneys' Fees, ECF No. 257. Defendants may re-file such motion within fourteen (14) days after the latte r of the Federal Circuit's ruling on the merits of Plaintiff's pending appeals (Nos. 15-1404, 15-1571) or the Court's entry of judgment with respect to Defendants' inequitable conduct counterclaims. Signed by District Judge Mark S. Davis and filed on 6/1/15. Copies distributed to all parties 6/1/15. (ldab, )
UNITED
FOR THE
STATES
DISTRICT
COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CERTUSVIEW TECHNOLOGIES,
LLC,
Plaintiff,
Civil Action No.
v.
S&N LOCATING SERVICES,
2:13cv346
LLC,
and
S&N COMMUNICATIONS,
INC.,
Defendants
MEMORANDUM ORDER
This matter is before the Court on a Motion for Exceptional
Case Finding and Attorneys'
LLC
and
S&N
Communications,
ECF No. 257.
award
Fees filed by S&N Locating Services,
Inc.
In their motion,
attorneys'
fees
to
(collectively
"Defendants").
Defendants request that the Court
Defendants
because
this
"exceptional case" within the meaning of 35 U.S.C.
In this action,
asserted
that
Defendants
patents-in-suit") .
No.
55.
CertusView Technologies,
patents-in-suit
seeking to
because
2014,
ECF No.
197.
1M 15,
LLC
five
19,
they
an
§ 285.
("Plaintiff")
patents
23,
27,
("the
32,
ECF
Defendants moved for judgment on
invalidate the asserted claims of
subject matter under 35 U.S.C.
Pleadings,
infringed
See Am. Compl.
On October 28,
the pleadings,
had
is
did
§ 101.
not
claim
Defs.'
On January 16,
2015,
the
patent-eligible
Mot.
for J. on the
the Court granted
Defendants leave to amend their answer to assert an inequitable
conduct counterclaim against Defendants.
248.
Order at 2-3,
ECF No.
On January 21, 2015, the Court granted Defendants'
motion
for judgment on the pleadings and held that each of the asserted
claims of the patents-in-suit were invalid because they did not
See Opinion and Order at
claim patent-eligible subject matter.
95, ECF No.
judgment
250.
in
Therefore,
favor
of
infringement action.
on that same day,
Defendants
in
Plaintiff's
which
filed
their
asserted
against
patent
Judgment, ECF No. 251.
In accordance with the Court's Order,
Defendants
the Court entered
First
numerous
Plaintiff.
Amended
Answer
No.
253.
2015,
and
Counterclaims,
conduct
inequitable
ECF
on January 23,
counterclaims
On
February
17,
2015,
Plaintiff noticed an appeal of the Court's ruling on Defendants'
motion for judgment on the pleadings.
267.
On April 10,
2015,
appeal with respect to
Appeal,
Court
ECF No.
denied
Defendants'
Thus,
before
at
Defendants'
the
Court.
Plaintiff's
Court
the Court.
Notice of
By Opinion and Order of May 22,
stage,
of
ECF No.
Plaintiff filed a subsequent notice of
another ruling of
inequitable
this
the
319.
Notice of Appeal,
motion
conduct
two
strike
counterclaims.
appeals
Appeals
to
for
in
this
the
a
the
number
of
ECF
matter
Federal
2 015,
are
No.
3 25.
pending
Circuit
and
inequitable conduct counterclaims are pending before
The
Patent
Act
provides:
"The
court
in
exceptional
cases
may award reasonable attorney fees to the prevailing party."
U.S.C.
§
285.
" [A] n
'exceptional'
case
is
simply
one
35
that
stands out from others with respect to the substantive strength
of a party's litigating position (considering both the governing
law
and
the
facts
of
the
case)
or
the
unreasonable
which the case was litigated." Octane Fitness,
& Fitness,
Inc. , 134
S. Ct.
to recover attorneys'
1749,
1756
fees pursuant
with Federal Rule of Civil Procedure 54.
v.
Amazon.com,
Inc.,
430 F.3d 1377,
1386
in
LLC v. ICON Health
(2014) .
to
manner
A party wishing
section 285
must comply
IPXL Holdings,
(Fed.
Cir.
L.L.C.
2005).
Such
rule provides:
(A) Claim to Be by Motion. A claim for attorney's fees
and related nontaxable expenses must be made by motion
unless the substantive law requires those fees to be
proved at trial as an element of damages.
(B)
Timing and Contents
of
the
Motion.
Unless
a
statute or a
court order provides otherwise,
the
motion must:
(i) be filed no later than 14 days after the
entry of judgment;
(ii) specify the judgment and the statute, rule,
or other grounds entitling the movant to the
award;
(iii)
state the
estimate of it;
amount sought or provide a
fair
and
(iv) disclose, if the court so orders, the terms
of any agreement about fees for the services for
which the claim is made.
Fed.
R.
Civ.
P.
54(d)(2).
amendments to Rule 54,
In
.
.
its
.
notes
regarding
the
1993
the Advisory Committee has suggested that
" [i] f an appeal on the merits of the case is taken,
the court
may rule on
motion,
under
or
the claim for fees,
may
deny
subdivision
the
motion
(d) (2) (B)
a
appeal has been resolved."
amendments) .
may
defer
without
its ruling
on
the
prejudice,
for
new period
directing
after
filing
Id. advisory committee's note
the
(1993
And the Advisory Committee has also suggested that
"if the claim for fees involves substantial issues or is likely
to be affected by the appellate decision,
prefer to defer consideration of
the
appeal
is
resolved."
committee's note
The
for
an
Court
the district court may
the claim for fees until after
Fed.
R.
Civ.
P.
58
advisory
(1993 amendments).
will
WITHOUT
PREJUDICE
case
exceptional
DENY
finding
and
Defendants'
attorneys'
motion
fees.
Such
denial is appropriate because the appeals currently pending with
respect
to Plaintiff's
and novel—issues
See,
e.g.,
1067-BEN
2014);
SLR,
(D.
that
infringement claims
the
Pacing Techs.,
(JLB) ,
2014
WL
Walker Digital,
12-140-SLR,
Del.
Oct.
Defendants,
Federal
LLC v.
12-141-SLR,
16,
2013)
in part,
Circuit's
at
discretion
to
(unpublished) .
the
Inc.,
(S.D.
Inc.,
12-142-SLR,
seek an award of
deny
*2
Expedia,
Plaintiff's alleged inequitable conduct,
its
ruling may affect.
Garmin Int'l,
2872219,
LLC v.
involve substantial—
2013
Cal.
Civ.
WL
12-CV-
June
Nos.
24,
11-313-
5662145,
Similarly,
attorneys'
No.
at
given
*2
that
fees based on
the Court will exercise
instant motion until
the
Court
has
adjudicated
the
merits
of
Defendants'
inequitable
conduct
counterclaims.
For
the
PREJUDICE
forgoing
Defendants'
Attorneys'
Fees,
Motion
ECF
No.
motion within fourteen
Circuit's
(Nos.
ruling
15-1404,
on
15-1571)
Order
Clerk
to all
IT
IS
SO
is
257.
merits
or
of
Court
DENIES
Exceptional
Defendants
Case
may
WITHOUT
Finding
re-file
&
such
the
of
Plaintiff's
Court's
entry
pending
of
appeals
judgment
with
inequitable conduct counterclaims.
REQUESTED
counsel
for
the
(14) days after the latter of the Federal
the
respect to Defendants'
The
reasons,
to
send
a
copy
of
this
Memorandum
record.
ORDERED.
/s/
Mark
UNITED
Norfolk, Virginia
June
I
, 2015
STATES
S.
Davis
DISTRICT
JUDGE
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