Jurin v. Google Inc., No. 2:2009cv03065 - Document 10 (E.D. Cal. 2009)
Court Description: MOTION FOR COSTS AND TO STAY by Google, Inc.. Motion Hearing set for 1/28/2010 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. (Attachments: # 1 Proposed Order GRANTING GOOGLE INC.'S MOTION FOR COSTS AND TO STAY)(Caruso, Margaret)
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Jurin v. Google Inc. Doc. 10 1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Margret M. Caruso (Bar No. 243473) margretcaruso@quinnemanuel.com 2 Cheryl A. Galvin (Bar No. 252262) cherylgalvin@quinnemanuel.com 3 555 Twin Dolphin Drive, Suite 560 4 Redwood Shores, CA 94065-2129 Telephone: (650) 801-5000 (650) 801-5100 5 Facsimile: Attorneys for Defendant 6 Google Inc. 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 SACRAMENTO DIVISION 11 12 DANIEL JURIN, an Individual, CASE NO. 2:09-cv-03065-MCE-KJM 13 GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) 14 Plaintiff, vs. 15 GOOGLE, INC., 16 17 Defendant. Date: January 28, 2010 Time: 2:00 p.m. Hon. Judge England, Jr. 18 19 NOTICE OF MOTION AND MOTION FOR COSTS 20 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE that on Thursday, January 28, 2010 at 2:00 p.m. in Courtroom 7 23 of the United States District Court for the Eastern District of California, Sacramento Division, 24 located at 501 I Street, Suite 4-200, Sacramento, CA, 95814, defendant Google Inc. (“Google”) 25 will and hereby does move for an order requiring Daniel Jurin (“Jurin”) to pay costs for the 26 previous action he filed against Google in the Central District of California on June 2, 2009 and 27 voluntarily dismissed on July 23, 2009. Google will and hereby does also move for an order to 28 stay the current proceedings until the plaintiff has complied with the order to pay costs. Case No. :09-cv-03065-MCE-KJM GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) Dockets.Justia.com 1 Google’s motion for costs and to stay is brought pursuant to Federal Rules of Civil 2 Procedure (“FRCP”) Rule 41(d), on the grounds that Jurin previously filed and dismissed an 3 almost identical complaint against Google. 4 This motion is based upon the accompanying memorandum of points and authorities, all 5 judicially noticeable facts, as well as the pleadings, records and files in this action. 6 7 DATED: December 30, 2009 8 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 9 10 11 By /s/ Margret M. Caruso Margret M. Caruso Attorneys for Defendant Google Inc. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. :09-cv-03065-MCE-KJM -2GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 INTRODUCTION 3 The complaint Plaintiff Daniel Jurin (“Jurin”) filed in this action includes substantively 4 identical claims to those in the complaint Jurin filed in the Central District of California against 5 Google on June 1, 2009. After being served with the Central District complaint, Google prepared 6 to defend that action—in that jurisdiction, before that Court, against Jurin’s original lawyers. But 7 Jurin voluntarily dismissed that complaint on July 23, 2009. Jurin’s decision to re-file a complaint 8 containing the same core claims against Google in the Eastern District of California renders many 9 of the costs Google incurred in the first action fruitless and wasted. 10 The Federal Rules of Civil Procedure provide a means to protect defendants from incurring 11 wasteful costs in connection with earlier filed and dismissed actions. Specifically, Rule 41(d) 12 allows the Court to order “the payment of costs of the action previously dismissed” and to “stay 13 the proceedings in the action until the plaintiff has complied with the order.” Consistent with the 14 protective purpose of the Rule, courts have construed “costs” under Rule 41 to include attorneys’ 15 fees. To compensate it for costs incurred in connection with the earlier action that are not useful 16 in this action, Google respectfully requests that Jurin be ordered to pay Google $6,030.52 and that 17 this action be stayed pursuant to Rule 41(d) until Jurin complies with that order. 18 19 STATEMENT OF RELEVANT FACTS Plaintiff Jurin filed a complaint against Google and Does 1-10, inclusive, in the Central 20 District of California on June 2, 2009. See Declaration of Margret Caruso, dated December 30, 21 2009 (“Caruso Decl.”), ¶ 3, Ex. A. The complaint alleged violation of 15 U.S.C. § 1114(1), 22 violation of 15 U.S.C. § 1125(a), violation of 15 U.S.C. § 1125(c), common law trademark 23 infringement, tortious interference with economic advantage, California unfair competition, and 24 unjust enrichment. Id. In connection with its defense of that action, Google incurred legal fees 25 and expenses. Google’s counsel reviewed the complaint, began preparing a motion to dismiss, 26 and had its lead trial lawyer admitted to the Central District of California. Caruso Decl. ¶¶ 7-8. In 27 addition, Google’s counsel had numerous communications with opposing counsel concerning its 28 negotiation of a short extension of time, which was initially refused—requiring Google to begin Case No. :09-cv-03065-MCE-KJM -3GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) 1 preparing a motion for an extension—and then partially granted, resulting in Google’s first 2 stipulation for an extension of time. Caruso Decl. ¶ 4, Ex. B, ¶¶ 7-8. Google then obtained a 3 second extension, covering the time it sought in its initial request. Caruso Decl. ¶ 5, Ex. C, ¶¶ 7-8. 4 Further, Google incurred costs through other communications with Jurin’s lawyers about the status 5 of the case. Id. ¶¶ 7-8. On July 23, 2009, just one week prior to the due date of Google’s 6 response, Jurin voluntarily dismissed his complaint without prejudice. Id. ¶ 6, Ex. D. 7 On November 10, 2009, almost four months after dismissing the first complaint, Jurin 8 served a new complaint on Google, this time in the Eastern District of California, represented by 9 different counsel. This complaint is based on the same facts as the first one, and purports to allege 10 the same claims, along with additional ones for negligent interference with prospective economic 11 advantage, negligent interference with existing economic relations, fraud and deceit, and 12 conversion. Because the complaint in this action suffers from the same legal infirmities (and 13 additional ones) as the earlier complaint, Google does not seek reimbursement for fees incurred 14 for work done on the motion to dismiss in the first action. ARGUMENT 15 16 I. RULE 41(D) PERMITS AN AWARD OF COSTS, INCLUDING ATTORNEYS’ 17 FEES, OF A PREVIOUSLY DISMISSED ACTION WHEN THE SAME CLAIM 18 AGAINST THE SAME DEFENDANT IS RE-FILED. 19 Rule 41(d) of the Federal Rules of Civil Procedure provides: 20 Costs of a Previously-Dismissed Action. If a plaintiff who 21 previously dismissed an action in any court files an action based on 22 or including the same claim against the same defendant, the court: 23 (1) may order the plaintiff to pay all or part of the costs of that 24 previous action; and (2) may stay the proceedings until the plaintiff 25 has complied. 26 Rule 41(d) is an expression of the Court’s inherent power to protect defendants from the 27 harassment of repeated lawsuits by the same plaintiff on the same claims. See Hacopian v. United 28 States Dept. of Labor, 709 F.2d 1295, 1296 (9th Cir. 1983) (“Courts have consistently found the Case No. :09-cv-03065-MCE-KJM -4GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) 1 power to dismiss an action for nonpayment of costs in a prior action to be part of the inherent 2 power of the courts.”). The remedies set forth in Rule 41(d) are a codification of a well-settled 3 practice whereby a second action cannot be maintained for substantially the same relief asked for 4 in a prior action until the costs of the first action have been paid. This practice was designed to 5 prevent vexatious litigation and also to enable a party who has incurred costs in defending a suit to 6 obtain reimbursement of those costs before being subjected to further litigation relating to the 7 same subject matter. See id. at 1297 (citing Weidenfeld v. Pacific Improvement Co., 101 F.2d 699, 8 700 (2d Cir. 1939) (Augustus Hand, J.)). In light of Rule 41(d)’s purpose of protecting defendants from incurring unnecessary 9 10 expenses, it is not necessary for a court to find bad faith to award costs if a defendant expended 11 money preparing to defend the first action before it was dismissed. E.g., Chien v. Hathaway, 17 12 F.3d 393, 1994 WL 48319, *1 (9th Cir. 1994) (upholding district court’s order of costs and a stay 13 where plaintiff filed a case, dismissed it, and re-filed it in a different venue several months later); 14 Esquivel v. Arau, 913 F. Supp. 1382, 1388 (C.D. Cal. 1996) (awarding costs where plaintiff filed 15 actions in New York, then filed an action in California federal court that included the same claims 16 and additional ones and dismissed the New York actions). 17 Further, to foster Rule 41(d)’s policy to prevent forum shopping and vexatious litigation, 18 courts have often awarded attorneys’ fees as part of costs. E.g., Esquivel, 913 F. Supp. at 1392 19 (awarding expenses and attorneys’ fees).1 For example, in Esquivel, the plaintiff filed an action in 20 New York state court and New York federal court. 913 F. Supp. at 1385. The plaintiff later filed 21 a complaint arising out of the same facts and asserting additional claims in the Central District of 22 23 24 25 26 27 28 1 See also, e.g.,Meredith v. Stovall, 216 F.3d 1087, 2000 WL 807355, * 1 (10th Cir. June 23, 2000) (“Under the language of Rule 41(d), the decision whether to impose costs and attorney’s fees is within the discretion of the trial court”); Evans v. Safeway Stores, Inc., 623 F.2d 121, 121 (8th Cir. 1980) (affirming award of attorneys’ fees under Rule 41(d)); Loubier v. Modern Acoustics, Inc., 178 F.R.D. 17, 23 (D. Conn. 1998) (awarding attorneys’ fees under Rule 41(d)); Whitehead v. Miller Brewing Co., 126 F.R.D. 581, 582 (M.D. Ga. 1989) (same); Eager v. Kain, 158 F. Supp. 222, 223 (E.D. Tenn. 1957) (stating that Rule 41(d) authorizes a court to “require the payment of costs, including attorneys’ fees, of the previously dismissed action as a prerequisite to the filing of the [subsequent] action”). Case No. :09-cv-03065-MCE-KJM -5GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) 1 California, and then voluntarily dismissed the pending New York actions. Id. The U. S. District 2 Court for the Central District of California found that under Rule 41(d) the defendants were 3 entitled to costs, including attorney’s fees, expended in litigating the plaintiff’s earlier filed New 4 York actions; except the Court would not impose any costs associated with work that would be 5 useful to defendants in the newly filed action. See id. at 1388. 6 The Esquivel Court reasoned that Rule 41(d) permitted an award of fees because Rule 7 41(a)(2), which governs voluntary dismissals, has been read to allow the imposition of attorneys’ 8 fees as a condition of dismissal: “The fact that Rule 41(a)(2) has been a basis to impose fee award 9 ‘conditions’ lends support to the proposition that Rule 41(d) ‘costs’ awards should also include 10 attorneys’ fees.” Id. at 1391. The Court explained that it would be inconsistent for a court to 11 award fees as a condition of a voluntary dismissal but not to allow an award of fees when a case 12 that was previously voluntarily dismissed is re-filed. See id. 13 II. GOOGLE IS ENTITLED TO COSTS, INCLUDING ATTORNEY’S FEES, AND TO 14 A STAY OF THESE PROCEEDINGS. 15 The complaint filed in this action includes the exact claims (in addition to others) as the 16 complaint Jurin filed and dismissed in the Central District of California against Google. Compare 17 Counts I-VI of Central District Complaint (Caruso Decl., ¶ 3, Ex. A) with Counts I-IV, VII, X, XI 18 of the Complaint in this action. As such, Jurin should “pay all or part of the costs of that previous 19 action” to compensate Google for the expenses that it incurred. Fed. R. Civ. Proc. R. 41(d)(1). As 20 detailed in the accompanying Declaration of Margret M. Caruso, the $6,030.52 for which Google 21 seeks compensation is specific to costs incurred in connection with the first complaint in the 22 Central District of California and that are inapplicable to the current action. Caruso Decl. ¶¶ 7-9, 23 11-14. In particular, Google does not seek reimbursement for costs such as legal research directed 24 to the substantive allegations of the complaint, which may be of use to it in this action. The costs 25 Google seeks in connection with the first action are reasonable and should be reimbursed by Jurin 26 in full. These costs should include all of the attorneys’ fees and expenses that Google seeks, 27 including the fees of Quinn Emanuel, whose rates have been repeatedly approved by federal and 28 Case No. :09-cv-03065-MCE-KJM -6GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) 1 state courts. See, e.g., Order Awarding Compensation for First Application for Compensation of 2 Quinn Emanuel Urquhart Oliver & Hedges, LLP, Special Litigation Counsel for Debtors, In re G-I 3 Holdings Inc., Case Nos 01-30135 and 01-38790 (Bankr. D. N.J. Nov. 19, 2009); Order Granting 4 Plaintiff’s Motion for Award of Attorneys’ Fees, Mammoth Lakes Land Acquisition, LLC v. Town 5 of Mammoth Lakes, Mono Superior Court Case No. 15954 (Oct. 8, 2008); Order re Plaintiffs’ 6 Motion for Award of Attorneys’ Fees, Reimbursement of Expenses, and Compensation to 7 Representative Plaintiffs, Bistro Executive, Inc. v. Rewards Network, Inc., Case No. CV04-4640 8 (C.D. Cal. Nov. 19, 2007); Order Setting Sanctions Pursuant to Fed. R. Civ. P. 11, Eon-Net, L.P. 9 v. Flagstar Bancorp, Inc., Case No. C05-2129MJP (W.D. Wash. Dec. 19, 2006). In addition, this action should be stayed pending Jurin’s payment of Google’s costs. See, 10 11 e.g., Chien, 1994 WL at *1; Esquivel, 913 F. Supp. at 1393. Google requests this stay to prevent 12 additional unnecessary expense to Google, and to ensure that Google is compensated for its prior 13 costs. CONCLUSION 14 15 For the foregoing reasons, Google’s motion for costs and for a stay of the proceedings 16 should be granted. 17 18 DATED: December 30, 2009 19 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 20 21 22 By /s/ Margret M. Caruso Margret M. Caruso Attorneys for Defendant Google Inc. 23 24 25 26 27 28 Case No. :09-cv-03065-MCE-KJM -7GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d) Appendix of Unreported Citations (Pursuant to Local Rule 133(i)(3)) Reference 1 Reference 2 Reference 3 Reference 4 1 2 CERTIFICATE OF SERVICE I certify that counsel of record who are deemed to have consented to electronic service are 3 being served on December 30, 2009 with a copy of this document via the Court’s CM/ECF system 4 per Local Rule 135(a). 5 6 /s/ Margret M. Caruso Margret M. Caruso 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. :09-cv-03065-MCE-KJM GOOGLE INC.’S NOTICE OF MOTION AND MOTION FOR COSTS AND TO STAY THE PROCEEDINGS UNDER FEDERAL RULES OF CIVIL PROCEDURE RULE 41(d)
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