United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHNSON COLEMAN, UNITED STATES DISTRICT JUDGE
Court finds that Marshall Feature Recognition's
(“MFR”) Rule 59 motion for new trial  was
not properly brought because there was no trial. The Court
will treat MFR's motion as a motion to reconsider the
Court's order awarding Wendy's International
(“Wendy's”) attorney's fees  and its
October 25, 2016 entry of judgment reflecting that award
. The Court's decision to treat it as such is based
on the purported miscommunication about Austin Hansley's
(lead counsel for MFR) motion to withdraw. The Court now
recognizes that MFR asked local counsel, Mathias Civil
Justice, PLLC (“Mathias”), to be its primary
counsel; the motion to withdraw , however, was filed
after the October 21, 2016 hearing on attorney's
fees. The Court notes that the motion to
withdraw was delayed numerous times despite the known issues
affecting Mr. Hansley's ability to represent MFR.
hearing on MFR's motion to reconsider  was held on
November 15, 2016. Mathias and counsel for Wendy's were
present at the hearing. After hearing oral argument,
reviewing the parties' various filings, and reviewing the
docket, the Court finds that no further briefing is necessary
on MFR's motion.
the Court rejects MFR's claim of inadequate notice of the
October 21, 2016 hearing. MFR's claim of inadequate
notice is not supported by the record. On October 7, 2016,
Mathias and counsel for Wendy's were present in court and
Mr. Hansley, MFR's lead counsel, was present
telephonically. At that hearing, the Court made clear that 1)
it would award attorney's fees to Wendy's; 2) that
the parties were to meet and confer about the appropriate
amount of fees; 3) that if the parties were unable to reach
an agreement, they were to each file a report regarding the
amount of fees; and 4) that if no agreement was reached, the
parties were to be present in court on October 21, 2016 at
9:00 AM. A docket entry also made reference to October 21
although the time was not listed. Wendy's filed its
attorney's fees report  on October 19, 2016.
counsel for Wendy's was present at the October 21
hearing. Neither lead nor local counsel for MFR made contact
with the Court prior to the 9:00 AM call. MFR failed to
appear at this hearing - a hearing on attorney's fees -
therefore it is not entitled to another hearing. The Court
entered an order in open court awarding fees as requested.
Later that day, MFR filed its objections to Wendy's
attorney's fees report and a motion to withdraw. The
Court held that MFR's objections were untimely given that
they were filed after the October 21 hearing was completed at
which counsel was expected to be present.
the Court finds that MFR did have opportunity to file a
response to Wendy's motion for attorney's fees.
Wendy's filed its motion for fees  on June 6, 2016.
The motion was entered and continued until August 10, 2016,
when the Court set a briefing schedule allowing response by
August 31, 2016. MFR failed to respond by August 31. MFR did
not file a motion to extend and stay briefing deadlines until
September 19, 2016, nearly three weeks after the August 31
deadline. The stay was granted on September 23, 2016, due to
the personal hardships that Mr. Hansley faced. Between then
and the October 7 hearing, the issue of fees was not
addressed due in large part to the uncertainty of Mr.
Hansley's representation of MFR. The Court clearly lifted
the stay at the October 7 hearing when it issued its ruling.
Between then and the October 21 hearing, no motions to
withdraw, no new appearances, and no motions to reconsider
were filed on MFR's behalf. The Court took this as an
indication that MFR did not intend to respond to the motion
for fees. MFR's argument that it was not afforded an
opportunity to file a response to the motion for
attorney's fees has no merit whatsoever. A review of the
record shows the extent of the Court's deference to and
Wendy's patience in dealing with MFR's case.
over MFR's objections, the Court finds that this case is
"exceptional" within the meaning of 35 U.S.C.
§ 285. "[A]n 'exceptional' case is simply
one that stands out from others with respect to the
substantive strength of a party's litigating position . .
. or the unreasonable manner in which the case was
litigated." Octane Fitness, LLC v. ICON Health &
Fitness, Inc., 134 S.Ct. 1749, 1756, 188 L.Ed.2d 816
(2014). The Court may determine whether a case is
“exceptional” based on its discretion,
considering the totality of the circumstances. Id.
MFR made arguments that were foreclosed by the Court, and
MFR's conduct before this and other courts strongly
suggests MFR's goal in filing this action was settlement.
Alone, these two observations support the Court's finding
that the case is exceptional. See, e.g., Chicago
Bd. Options Exch., Inc. v. Sec. Exch., LLC, No. 07 C
623, 2014 WL 6978644, at *5 (N.D. Ill.Dec. 10, 2014) (Lefkow,
J.) (finding a case to be “exceptional” where
party made arguments that had been foreclosed by previous
rulings); Eon-Net LP v. Flagstar Bancorp, 653 F.3d
1314, 1326 (Fed. Cir. 2011) (party filed multiple, nearly
identical patent cases and immediately offered settlements
for less than the cost of mounting a defense). In addition,
MFR failed to file final infringement contentions, failed to
communicate with Wendy's even after multiple judges
warned MFR about a possible dismissal for want of
prosecution, was uncooperative throughout discovery, and
failed to engage in meaningful settlement discussions. The
Court, in its sound discretion, finds that the totality of
the circumstances renders this case exceptional. The Court
certainly has never seen another case like it.
Court further rejects MFR's claim that the award of fees
is a sanction. Pursuant to 35 U.S.C. § 285, Wendy's
moved for attorney's fees which this Court awarded based
on the petition presented. MFR's contention is without
the Court addresses MFR's contention that responsibility
for the fees should be shifted to MFR's attorneys. Once
again, the Court's order ,  is clear - MFR is
to pay Wendy's its rightfully owed attorney fees. MFR
failed to appear at the hearing on attorney's fees and
failed to file timely objections. The Court is not addressing
MFR's options in other forums, therefore, if MFR so
chooses, it may pursue relief against its counsel elsewhere.
foregoing reasons, MFR's motion  is denied.