[00:00:00] Speaker 04:
The last case for argument is number 25-1110, Liu versus Hyperbicycles.

[00:00:06] Speaker 01:
Good morning, Your Honors. Christopher Holtzquist for the plaintiff, Fa-Hsing Liu. We're here on appeal of the trial court's order granting attorney's fees to Hyperbicycles and the underlying action.

[00:00:23] Speaker 01:
And...

[00:00:26] Speaker 01:
I'm arguing today that the court erred by ignoring evidence.

[00:00:32] Speaker 00:
Could I ask you to speak up just a little bit? I'm sorry. Thank you.

[00:00:40] Speaker 01:
trial court's order granting hyperbicycles motions for attorney's fees and an underlying action, which was – can you hear me? I'm sorry.

[00:00:50] Speaker 00:
Yeah, I just want to make sure I hear you a little better.

[00:00:53] Speaker 01:
And an eventual summary judgment that went in the favor of defending hyperbicycles.

[00:01:02] Speaker 04:
Well, to be clear, summary judgment that went in their favor because you didn't propose any disputes of fact in response to their statement. So the court had to accept their statement of fact as true. And so it wasn't as if this was a difficult case for the district court below and not a difficult case on appeal on the summary judgment because when you don't oppose the facts and they're accepted as true, they win.

[00:01:31] Speaker 01:
I understand, Your Honor.

[00:01:33] Speaker 01:
I think what for today's purpose, just on the attorney's fees... We're talking abuse of discretion here, too, right? It's a high standard, and that's understood, Your Honor.

[00:01:46] Speaker 01:
The reason I think that there's a problem with what the trial court did here in its decision, its memorandum in order...

[00:01:58] Speaker 01:
when it found that the plaintiff filed the action in good faith and there was no misconduct, based an initial timeframe on a time period when the court found that an interrogatory was proposed where the plaintiff acknowledged that he had no documents to support his patent infringement claim.

[00:02:27] Speaker 01:
Now, I think it's undisputed that there were no interrogatories on that issue propounded.

[00:02:41] Speaker 04:
Are these the arguments that were made for the first time in your reply brief?

[00:02:45] Speaker 01:
Yes, that is your argument.

[00:02:46] Speaker 04:
I mean, why should we be even hearing those? We don't hear arguments made for the first time in the reply brief. I mean, this is just another indication of...

[00:02:56] Speaker 04:
the way this case has been litigated in a way that supports a finding of exceptional circumstances.

[00:03:06] Speaker 01:
Your Honor, I guess I disagree. I think in the attorney fee analysis, I do think looking at the totality of circumstances,

[00:03:18] Speaker 00:
You disagree that we are not supposed to look at arguments made for the first time in a reply brief?

[00:03:24] Speaker 01:
No, no, no.

[00:03:25] Speaker 00:
I don't disagree with that.

[00:03:26] Speaker 01:
I disagree with, if I'm correct in saying that this is an exceptional case.

[00:03:35] Speaker 01:
I think looking at the totality of the circumstances, what happened here, Your Honor, there was no...

[00:03:46] Speaker 01:
intentional actions or vexatious litigation in an effort, as a matter of fact, at the summary judgment hearing, although it was an artful or maybe not the best litigation tactic not to file that opposition paper.

[00:04:05] Speaker 02:
One of the prongs that can be the basis for finding exceptional circumstances is unreasonable manner in which the case was litigated.

[00:04:17] Speaker 02:
This screams out that it was unreasonably litigated, I think.

[00:04:25] Speaker 01:
It may not be conventional. How is it reasonable?

[00:04:30] Speaker 01:
Your Honor, looking at this case in hindsight, there were several delays and motions to extend time that went on over a period of time.

[00:04:45] Speaker 01:
There was deposition testimony of the principal for the defendant in another case that was used and ultimately rejected by the trial court.

[00:04:58] Speaker 01:
There was testimony from the plaintiff in this action that was supported, and there was a statement and a counterclaim, which the plaintiff thought was an admission that would preclude summary judgment, notwithstanding the failure to file testimony.

[00:05:15] Speaker 02:
The bottom line, and I confess from the district judge here, so I'm looking at this record from perhaps that perspective, but there were, if I'm correct, they were requested four extensions.

[00:05:30] Speaker 02:
There was no discovery taken. Is that correct? And the district judge characterized this as cursory briefing.

[00:05:39] Speaker 02:
Isn't the district judge in a good position to determine whether or not this was an unreasonable manner in which the case was litigated?

[00:05:47] Speaker 01:
I think the district judge is in, say, a better position to make that finding.

[00:05:56] Speaker 01:
The multiple extensions, and I believe I addressed this, were partially from a withdrawal of appearance of defense counsel in the District of Massachusetts. Effectively, when that happens, when there is no local counsel, the Pro Hague VJ counsel could not really attend to the case. So those extensions were, there was nine months before a new attorney came in on the case.

[00:06:30] Speaker 04:
Yet there was still no discovery during the period in addition to those nine months. You didn't take any discovery.

[00:06:39] Speaker 01:
Your Honor, strategically, that may have been...

[00:06:43] Speaker 01:
not the wisest course in hindsight.

[00:06:46] Speaker 04:
I don't understand how you prove your allegations and your complaint without taking any discovery. And then, when pressed on summary judgment, you don't even oppose the factual assertions in the defendant's motion.

[00:07:05] Speaker 04:
Well, Your Honor, the factual... Is this even remotely a reasonable way to litigate a case?

[00:07:12] Speaker 04:
Your Honor, looking back on this, the deposition testimony of the principal of the defendant was... Well, if you were going to use that, you should have at least filed a statement of genuine issues and material facts and cited to it and asked that it be admitted. You didn't do any of that.

[00:07:35] Speaker 01:
The statement of issues of material fact was not submitted. However, the deposition transcript testimony under oath was submitted, Your Honor. I know.

[00:07:43] Speaker 04:
That's not the way courts do litigation.

[00:07:48] Speaker 01:
That's understood, Your Honor.

[00:07:52] Speaker 01:
In any event.

[00:07:52] Speaker 04:
Do you have anything else? I think we have, Your

[00:08:09] Speaker 03:
Good morning, Your Honors. It may have pleased the Court. My name is Lawrence Eckhoff, and I represent the respondent, Piper Bicycles.

[00:08:16] Speaker 03:
In the argument so far, I think Your Honors have really caught on what the issue here was before the trial court. The issue is, is this an exceptional case, and did the district court err in so finding it to be an exceptional case of warranting the award of attorney's fees?

[00:08:33] Speaker 03:
The district court said quite clearly in its opinion that its ruling was based on the totality of the circumstances, which was the frivolity of plaintiff's claims and his failure to litigate the case meaningfully, and therefore found it to be an exceptional case.

[00:08:52] Speaker 03:
There was no discovery. In fact, this case was filed in September of 2020.

[00:08:59] Speaker 03:
Both local council and my staff were involved until local council withdrew two years later. In that two-year period, no discovery by the plaintiff was done whatsoever. There was a hiatus when the local council withdrew, but then after that, there were still more extensions and no discovery was conducted. More importantly is that In the deposition of the plaintiff himself, he testified that he had no evidence, no documents, no facts. And so what the district court did was limited the attorney's fees and said, from the point in time, I'm going to give you attorney's fees, but starting in 2022, I'm not going to give you from the beginning because I don't find that it was a case that was frivolously filed.

[00:09:43] Speaker 03:
But what the court found and what the appellate rulings say is even during the course of a case, if it comes to be a point in time that you learn that the case is frivolous or you don't have facts to support it, it's at that point that you're supposed to dismiss the case or you're supposed to do something. And nothing happened here.

[00:10:03] Speaker 02:
So I think the court was well within its rights to... So is the district court basing this on both unreasonable process of litigation and... From that point onwards, it's a frivolous case? Yes. So it's both?

[00:10:20] Speaker 03:
It is both. I think the court found that at that point where Mr. Liu testifies, I have no facts, I have no damages that I know of, I have no documents to support my claims, I have nothing. At that point, the district court said, okay, that was at the point where you have to do something as a plaintiff. You just can't keep prosecuting the case and having the defense incur legal fees and costs along the way. And the district court recognized that. And the district court recognized also the fact that on the summary judgment, there was no meaningful opposition. And it makes comment upon that in the court's opinion.

[00:10:52] Speaker 03:
So we asked. this court to affirm the ruling of the district court on, because this court was well within its discretion. We have an abuse of discretion standard, and there's no clear error in this record at all, which would support a reversal. District court saw the case for what it was and how it was improperly prosecuted. So unless your honors have any questions of me, I would submit other ones. Thank you. Thank you for your time. Appreciate it.

[00:11:25] Speaker 04:
I hope there's still some time for rebuttal, if you want. Your Honor, I'll rest on my briefs. Okay, thank you.

[00:11:32] Speaker 01:
Thank you. Case is submitted.