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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
| THE TAUBMAN COMPANY |
| LIMITED PARTNERSHIP, |
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| Plaintiff, | |
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| | Civil Action No. 01-72987 |
| v. |
| | District Judge Zatkoff |
| WEBFEATS AND HENRY MISHKOFF, |
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Magistrate Judge Komives |
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| Defendants. | |
MEMORANDUM IN SUPPORT OF
MOTION TO STAY TRIAL
This is an action for trademark and copyright infringement. Following the entry of
preliminary injunctions against defendant Mishkoff's two web sites, the parties engaged in discovery
on the trademark issues, which was terminated on February 15. On April 4, the Court granted a motion
to amend the complaint to add a copyright infringement claim, and reopened discovery limited to the
copyright issue. On September 4, after Magistrate Judge Komives granted a motion to compel discovery
on the copyright claim, the Court granted a joint motion to defer the trial, moving it from the
October trailing docket to the January trailing docket. The parties will soon complete discovery on
the copyright issue.The pretrial conference is scheduled for December 18.
Defendants have appealed the preliminary injunctions, contesting both whether the Court has
personal jurisdiction over them (which may be raised on an appeal from a preliminary injunction) and
the substantive trademark and First Amendment issues. The Court of Appeals granted a motion to stay
the amended injunction against the "taubmansucks" site, and expedited the appeals. Oral argument was
held on October 16, 2002.
In the course of oral argument, it became apparent that the Court of Appeals is contemplating
issuing a ruling on the merits of the substantive claim, as part of assessing plaintiff's likelihood
of success on the merits in the context of the Court's review of the injunctive relief ordered by
this Court. Any such ruling will likely affect the law that will have to be applied to the evidence
admitted at trial. The ruling may also affect the evidence that the parties wish to present. An
unofficial transcript of the oral argument, prepared from the official tape recording of the oral
argument purchased from the Sixth Circuit, is attached. A copy of the tape recording will be
provided upon request.
Although the copyright claim is not before the Court of Appeals, if that court reverses based
on lack of personal jurisdiction, the copyright claims as well as the trademark claims would have to
be tried in a different district, under the law of a different circuit.
Moreover, because this case is set for a jury trial, if the Court of Appeals decides the
appeal after the jury is instructed, but assesses the law differently than as stated in the jury
instructions, a new trial would be necessary.
Moreover, both the individual defendant and his trial counsel live a considerable distance
from Detroit. Although the Court has ruled that it has personal jurisdiction in this case (and that
the issue has been waived as to the trademark claims), it is nevertheless true that requiring
defendant to face two separate trials would substantially increase the hardship of having to defend
the case in this forum. It is respectfully submitted that, out of respect for the Court of Appeals'
primary position in determining the law governing this case, given the fact that the appeal has been
expedited, and because of the great hardship that would be imposed by requiring defendants to stand
trial twice in this forum, the Court should remove the case from the trial docket, with a view to
resetting the trial date promptly after the appeal is complete.
Last winter, in response to defendants' motion to postpone for one week the deadline for
cross-motions for summary judgment on the trademark issues, plaintiff moved the Court to stay all
proceedings indefinitely. Because, at the time, the appeals had not been expedited, and it was not
clear when the Court of Appeals would rule, defendants opposed that motion, and the Court denied it.
Now, however, all discovery is about to completed, and the Court may hold the parties' cross-motions
for summary judgment pending a ruling from the Court of Appeals.
In addition, the parties have submitted cross-motions for summary judgment on the trademark
issues, and plaintiff has moved for summary judgment on the issue of copyright. Defendants opposed
summary judgment, in part, based on their need for discovery. Based on that discovery, defendants
will likely want to move for summary judgment on the copyright claims, although counsel decide for
sure until depositions are completed later this month. Deferring the actual trial date will permit
the Court to consider that motion.
Accordingly, the Court is respectfully requested to stay the trial schedule in this case,
pending a ruling for the Court of Appeals on the appeals from the preliminary injunctions.
CONCLUSION
The motion to defer trial on the merits should be granted.
Respectfully submitted,
Barbara Harvey (P25478)
Suite 3060
Penobscot Building
645 Griswold
Detroit, Michigan 48226
(313) 963-3570
Paul Alan Levy (DC Bar 946400)
Allison M. Zieve (DC Bar No. 424786)
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
Attorneys for Defendants
November 4, 2002
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