Mercexchange, L.L.C. v. Ebay, Inc., Civil Action No. 2:01cv736.

• Decision Date: 11 December 2007
• Docket Number: Civil Action No. 2:01cv736.
• Citation: 660 F.Supp.2d 653
• Parties: MERCEXCHANGE, L.L.C., Plaintiff, v. eBAY, INC. and Half.com, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

660 F.Supp.2d 653

MERCEXCHANGE, L.L.C., Plaintiff, v. eBAY, INC. and Half.com, Inc., Defendants.

Civil Action No. 2:01cv736.

United States District Court, E.D. Virginia, Norfolk Division.

December 11, 2007.

Brent Lee VanNorman, Gregory N. Stillman, Hunton & Williams, Norfolk, VA, Brian Mark Buroker, Emerson Vincent Briggs, III, Hunton & Williams, Washington, DC, Kenneth Reed Mayo, Reed Mayo Law Firm PC, Virginia Beach, VA, Thomas J. Cawley, Hunton & Williams, McLean, VA, for Plaintiff.

ORDER AND OPINION

JEROME B. FRIEDMAN, District Judge.

Pending before the court is a motion to certify the judgment, filed by the plaintiff, MercExchange, L.L.C. (hereinafter "the plaintiff" or "MercExchange"), pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Also before the court are motions filed by the defendants, eBay, Inc., and Half.com, Inc. (hereinafter "the defendants" or "eBay"), seeking various remedies, including a motion for leave to file a supplemental answer, a motion seeking the requirement that MercExchange post a bond should the court certify the judgment, and a motion for Judgment as a Matter of Law ("JMOL") or a new trial on the '265 patent. The defendants have also filed two motions for leave to file supplemental memoranda in support of their motions for JMOL and leave to file an amended answer. Additionally, the plaintiff has filed a motion to strike the defendants' motions and a "suggestion" for sanctions.¹ On a related issue, the defendants have filed a motion for clarification, seeking confirmation that their counsel in this litigation is not violating the protective order by its conduct in the reexamination of the '265 patent. After examination of the briefs and record, this court determines that oral argument is unnecessary because the facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. The court, for the reasons stated fully herein, GRANTS the plaintiff's motion to certify the judgment on the '265 patent, and DENIES the defendants' motions for leave to file a supplemental answer, for a bond, for JMOL on the '265 patent, and for leave to file supplemental briefs. The court also DENIES the plaintiffs motion to strike and suggestion for sanctions, and DENIES the defendants' motion for clarification.

I. Factual and Procedural History

Much of the factual and procedural history relevant to the consideration of the instant motions has been set forth in several of this court's previous orders, including orders entered on August 6, 2003, and July 27, 2007. See MercExchange, L.L.C. v. eBay, Inc., 275 F.Supp.2d 695 (E.D.Va. 2003); MercExchange, L.L.C. v. eBay, Inc., 500 F.Supp.2d 556 (E.D.Va.2007). In the latter order, this court indicated that it would "entertain appropriate motions regarding the post-appeal issues in the '265 patent dispute, including MercExchange's anticipated motion for entry of a final and enforceable judgment and motion for an accounting." Id. at 592. Accordingly, MercExchange filed the instant Motion to Certify Judgment Pursuant to Rule 54(b) on July 30, 2007. eBay filed a brief in opposition on August 10, 2007, in which it also requested that, should the court grant MercExchange's motion, the court also require MercExchange to post a bond as security. MercExchange filed a reply brief on August 15, 2007, and filed an opposition brief to eBay's motion for a bond on August 21, 2007. eBay then'filed a reply brief in support of its motion for a bond on August 24, 2007.

eBay filed a motion for judgment as a matter of law or for a new trial on the '265 patent on August 10, 2007, and filed a motion for leave to file a supplemental answer on August 15, 2007. Instead of filing direct responses to these motions MercExchange filed, on August 21, 2007, a motion to strike eBay's filings and a suggestion for sanctions.² Treating the motion to strike as an omnibus response brief, eBay filed reply briefs in support of its motions for JMOL and for leave to file a supplemental answer on August 24, 2007. Additionally, eBay filed a motion for leave to file a supplemental brief in support of its motion for JMOL or a new trial on November 9, 2007. eBay also filed a motion for leave to file a supplemental brief in support of its motion for leave to file a supplemental answer on the same date. MercExchange filed separate briefs in opposition to these two motions on November 19, 2007, and eBay filed reply briefs in support on November 23, 2007. eBay also filed, on September 27, 2007, a motion for clarification that its litigation counsel was not violating the protective order. MercExchange responded in opposition on October 9, 2007, and eBay filed a reply brief on October 12, 2007. Accordingly, MercExchange's motion to certify the judgment and eBay's motion for a bond, motion for judgment as a matter of law, motion for leave to file a supplemental answer, and motions for leave to file supplemental briefs are all ripe for the court's consideration. Furthermore, the court also addresses MercExchange's motion to strike and suggestion for sanctions and eBay's motion for clarification.

II. Standard of Review

A. Motion to Certify Judgment

Rule 54(b) of the Federal Rules of Civil Procedure provides, in pertinent part:

When more than one claim for relief is presented in an action, whether as a claim [or] counterclaim . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

FED.R.CIV.P. 54(b). In determining the finality of a claim, a "court's judgment is final where it `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" W.L. Gore & Assocs. v. Int'l Med. Prosthetics Research Assocs., Inc., 975 F.2d 858, 863 (Fed.Cir.1992) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)).

As the Supreme Court has held:

Rule 54(b), in its amended form, is a comparable exercise of the rulemaking authority of this Court. It does not supersede any statute controlling appellate jurisdiction. It scrupulously recognizes the statutory requirement of a `final decision' under [28 U.S.C.] § 1291 as a basic requirement for an appeal to the Court of Appeals. It merely administers that requirement in a practical manner in multiple claims actions and does so by rule instead of by judicial decision. By its negative effect, it operates to restrict in a valid manner the number of appeals in multiple claims actions.

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895, 100 L.Ed. 1297 (1956).

B. Motion for a Bond

The district court is entitled to exercise its inherent authority to impose a bond requirement on a party before it. See, e.g., HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916 (1st Cir.1988) (noting the rule "that federal courts have the authority to preserve a fund or property which may be the subject of a final decree is well established"). That authority, however, must operate in the confines of other rules and procedural requirements dealing with the finality of judgments. See, e.g., Pedraza v. United Guar. Corp., 313 F.3d 1323, 1335 (11th Cir.2002) (noting that the district court had to make explicit findings of fact in order to use its inherent authority to require a party to post a bond covering the adverse party's attorneys' fees).

C. Motion for Leave to File a Supplemental Answer

Federal Rule of Civil Procedure 15(d) authorizes a court to permit a party, on its motion, "to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Fed.R.Civ.P. 15(d). Like a motion to amend a pleading under Rule 15(a), leave to file a supplemental pleading "should be freely granted." Franks v. Ross, 313 F.3d 184, 198 n. 15 (4th Cir. 2002). Although such motions should be allowed, they may be denied if "some particular reason for disallowing them appears." New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 29 (4th Cir.1963). See also Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1353 (Fed.Cir.2006) ("[L]eave to amend may be denied if the court finds that there has been undue delay that would prejudice the nonmoving party, that the moving party has acted in bad faith, or that the amendment would be futile.") (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

D. Motion for Judgment as a Matter of Law or for a New Trial

Federal Rule of Civil Procedure 50(a) provides, in pertinent part:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed.R.Civ.P. 50(a)(1). JMOL should not be granted unless

(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only be the result of sheer surmise and conjecture or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair-minded men could not arrive at a verdict against him.

Jamesbury Corp. v. Litton Indus. Prods. Inc., 756 F.2d 1556, 1558 (Fed.Cir.1985). When ruling on a motion for JMOL, a judge "must consider all the evidence in a light most favorable to the non-mover, must draw reasonable inferences favorable to the non-mover, must not determine credibility of witnesses, and must not substitute its choice for that of the jury between conflicting...