“Rule 59(e) . . . may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.”
How later courts described this case
- “Rule 59(e) . . . may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ESCAPEX IP LLC, Case No. 22-cv-08711-VC
Plaintiff,
ORDER GRANTING MOTION FOR
v. ATTORNEYS' FEES UNDER 28 U.S.C.
§ 1927
GOOGLE LLC,
Re: Dkt. No. 66
Defendant.
The motion for attorneys’ fees is granted. This order assumes the reader’s familiarity with
the facts of the case, the relevant law, and the arguments made by the parties.
When an attorney unreasonably or vexatiously multiplies the proceedings, courts may
require the attorney to personally satisfy “the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 28. U.S.C. § 1927. To impose sanctions under
§ 1927, a court must find that the attorney’s conduct was at least reckless. See Fink v. Gomez,
239 F.3d 989, 993 (9th Cir. 2001). Here, the attorneys for EscapeX acted recklessly by filing a
frivolous Rule 59(e) motion that unreasonably multiplied the proceedings of this case.
EscapeX’s Rule 59(e) motion—seeking reversal of this Court’s previous fee order—
argued that reversal was warranted based on newly discovered evidence. See Dkt. No. 59. But
the evidence EscapeX presented in no way met the standard of newly discovered evidence under
Rule 59(e). EscapeX submitted two declarations—one from EscapeX’s president and one from
an engineer who drafted EscapeX’s claim charts—both of which contained information that was
already known by EscapeX at the time of Google’s original fee motion. Just because EscapeX
failed to include these declarations at that time does not mean that they constituted “newly
discovered evidence.” See School District No. 1J, Multnomah County, Oregon v. ACandS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993). EscapeX also provided no argument explaining why these
declarations should have been considered “newly discovered evidence.” Other than reciting the
legal standard for a Rule 59(e) motion, EscapeX’s motion cited no authority for its position that
the declarations constituted new evidence. Instead, the motion simply summarized what was in
the declarations and raised arguments that could have been made prior to entry of the initial fee
award. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (“Rule 59(e) . . . may not
be used to relitigate old matters, or to raise arguments or present evidence that could have been
raised prior to the entry of judgment.”). As a result, EscapeX’s Rule 59(e) motion was frivolous.
And EscapeX’s attorneys’ refusal to withdraw or amend their motion when informed by
Google’s counsel of its numerous problems, at a minimum, constitutes recklessness.
Moreover, in its opposition to Google’s current attorneys’ fees motion, EscapeX argues
that it filed its Rule 59(e) motion based on its belief that the original fee order was manifestly
unjust. See Dkt. No. 73. However, this argument is found nowhere in EscapeX’s actual motion.
If the basis for the motion was indeed a belief that there was manifest injustice, then that is even
more reason to find that EscapeX’s attorneys acted recklessly or in bad faith by filing a motion to
reconsider on the grounds of newly discovered evidence.
In light of this conduct, Google requests reimbursement for its attorneys’ fees and costs
in the amount of $92,602.95. See Dkt. No. 66 (requesting $34,447.65 in fees and costs incurred
in responding to the Rule 59(e) motion and in preparing this fees motion); Dkt. No. 83
(requesting an additional $58,155.30 in fees and costs incurred in filing this fees motion,
preparing/filing a reply, and arguing at the hearing). While Google’s request for $34,447.65 in
connection with responding to the Rule 59(e) motion and preparing this fees motion is facially
reasonable, its request for $58,155.30 for its subsequent work is not. It is unreasonable for the
cost of filing—as opposed to preparing—a fees motion, preparing and filing a reply brief, and
arguing at a 13-minute hearing to be more than 1.5 times greater than responding to a Rule 59(e)
motion and preparing a fees motion. Therefore, Google is entitled to reimbursement of its
reasonable attorneys’ fees and costs in the amount of $63,525.30 to be levied jointly and
severally against EscapeX’s attorneys, William P. Ramey, III and Susan S.Q. Kalra.!
IT IS SO ORDERED.
Dated: February 12, 2024 Koo.
um ini
VINCE CHHABRIA
United States District Judge
' Google also requests that the previously awarded fees and costs be levied jointly and severally
against these attorneys. However, they did not make this request at the time they sought their
original attorneys’ fees award, making this current request untimely.