Thanks for Playing

Thanks for Playing

We’ve all seen those sad moments on game shows when an eager contestant walks away empty-handed. While we can’t all be as successful in court as Barney Stinson was on “The Price Is Right,” it helps if you know how the game is played. The plaintiffs in these cases tripped up on the rules, so the Federal Circuit told them, “Better luck next time!” I wonder if this sound played in their minds:

Actually, We CAN Stop You

Karen L. Willis v. Can’t Stop Productions, Inc., No. 2012-1109 (Fed. Cir. Mar. 23, 2012) (Judge Bryson) (nonprecedential order)

While Victor Willis of Village People fame is busy defending his copyright termination lawsuit, his wife (and manager) has been active at the Trademark Trial and Appeal Board (TTAB) trying to cancel Can’t Stop Productions’ VILLAGE PEOPLE trademarks. Willis filed 2 separate petitions to cancel the marks. The TTAB issued a single summary judgment opinion denying the petitions and dismissing the proceedings. Willis then filed a single appeal for both cancellation proceedings.

Can’t Stop argued that Willis should have filed 2 separate notices of appeal, one for each cancellation, since the cases weren’t officially consolidated. But the Federal Circuit said that Can’t Stop’s argument had “no merit” because the TTAB had issued a consolidated order that made both proceedings final and appealable. So the court denied Can’t Stop’s motion.

Can’t Stop is now not so macho, man.

I’ve Got My Eye on You

Service Reminder LLC v. Volkswagen Group of America, Inc., No. 2012-1139 (Fed. Cir. Mar. 23, 2012) (Judge Bryson) (nonprecedential order)

We mentioned a couple of weeks ago that it’s frustrating for litigants when one side doesn’t follow the rules. Well, here’s another situation like that. Volkswagen didn’t get everything it asked for this time, but the Federal Circuit seemed pretty miffed at Service Reminder’s behavior and warned it to get its act together.

When you file an appeal at any federal circuit court, you have 14 days to order a transcript of the trial (if there was a trial) and file the written transcript order at the district court, or file a certificate stating that no transcript will be ordered.

Service Reminder filed its appeal on October 27, 2011, but apparently it didn’t follow the transcript order rules. Volkswagen complained, and asked the Federal Circuit to dismiss the appeal for failure to prosecute. Service Reminder replied with a declaration from its attorney that it had sent a letter and a check to the district court’s court reporter to get a transcript, and stating that the district court forwarded the record to the Federal Circuit on December 21, 2011. But no order form or certificate was officially filed at the district court until January 21, 2012, nearly 3 months after Service Reminder filed its appeal.

The Federal Circuit acknowledged that Service Reminder hadn’t followed the rules, but it thought that dismissing the appeal was too harsh a penalty. The court accepted that the transcript has now been ordered and advised Service Reminder to play by the rules going forward. But the court also indicated that it would be watching Service Reminder closely.

Volkswagen mentioned several other occasions when Service Reminder hadn’t complied with the rules on time, and the court granted Volkswagen’s motion to add to the record on the status of the case. It warned Service Reminder to “adhere strictly to all of this court’s rules and deadlines going forward, and immediately cure any outstanding noncompliance” with the rules. The court also left the door open to Volkswagen to refile its motion to dismiss for failure to prosecute later in the case.

Personally, I don’t think I’d want to use a “Service Reminder” company that has this many problems with timing and deadlines.

Help Me Help You

Pieczenik v. Bayer Corp., No. 2011-1385 (Fed. Cir. Mar. 22, 2011) (Judges Newman, Mayer, and Plager) (nonprecedential opinion)

Dr. Pieczenik is an inventor, patent owner, and scientist. But he’s not a lawyer. That didn’t stop him from suing 88 big pharmaceutical companies for patent infringement and racketeering.

Now, you don’t have to be a lawyer to represent yourself in court; our system allows for pro se representation. And pro se parties get a little more leeway with the rules and requirements than licensed attorneys do. But these parties still have to meet some basic standards when they file a complaint—standards like providing some facts to back up their claims. A complaint should include enough information to explain to the defendants why you are suing them, and to help the court help you.

Dr. Pieczenik alleged that these companies infringed his patent, entitled “Method and Means for Sorting and Identifying Biological Information.” But his complaint didn’t explain the criteria for patent infringement or point to any infringing product or process that the defendants use, make, or sell. The situation was same for the racketeering claims—Dr. Pieczenik’s complaint didn’t explain how the defendants violated the racketeering statute, or how any violation harmed him.

Without this basic information, Dr. Pieczenik’s complaint didn’t meet the basic pleading standards, so the district court dismissed it, and the Federal Circuit agreed.

Dr. Pieczenik didn’t stop there though. He also asked the district court judge to recuse himself for a cornucopia of reasons, including favoritism toward opposing counsel, a “hidden agenda,” and prejudice against “scientists acting as lawyers” and against science generally. Like his complaint, Dr. Pieczenik didn’t provide any facts to support these arguments, so the district court and the Federal Circuit rejected them.

Finally, Dr. Pieczenik said that the defendants violated his copyright by quoting, in their briefs, statements from a lecture that Dr. Pieczenik gave in which he described the “ease and benefits of pro se litigation in federal court.” Unsurprisingly, the court didn’t agree with him.

After this decision, I’m not sure Dr. Pieczenik will continue to hold that view about pro se litigation.

Photo credit: Greencolander

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