So we began the task of preparing for trial. Studying the rules of evidence, preparing exhibits. Very time consuming and as it would turn out, time completely wasted. Except for the time spent reviewing the jury instructions. We could not find anything, any instructions regarding damage awards that was not controlled by section 1111. So we were curious to see how this might play out in court before a jury.
One week before the jury trial on damages, we received a call from the court to schedule a 'telephone conference'. We were given no explanation as to why. We learned the following day, that the plaintiff wanted to voluntarily dismiss certain claims. The claim of contributory infringement against me and the claim of willfulness against my wife.
In the first of three conferences (Sept 21, 2007), plaintiff's attorney explained that they wanted to nonsuit the claim of willfulness as "there is only a limited amount that my client could hope to recover." The claim against me; "Now it's a little less easy but basically the same with respect to the contributory infringement claim against Richard Snyder. It just seemed to us it didn't merit taking a jury and the Court's time for these issues that didn't seem to us to have a --" At this point the Court jumps in with both feet cutting him off. "So the only issue would be the statutory damages?"
Really wish the Court had allowed plaintiff's attorney to finish his thought. "...issues that didn't seem to us to have a --" What? A contributory infringement claim has three elements and the plaintiff was not remotely warm on one, let alone all three. In December 2006, you searched my home, my personal office, my computer and found nothing to tie me to my wife's business in any way. You added me to the lawsuit anyway, you waited nearly eight months to depose my wife and I and found out that I occasionally carried boxes upstairs for her. You threaten my wife and I, our two sons with the loss of our home and 'other assets' and now to avoid going before a jury, you voluntarily want to dismiss your claim against me? These claims were dismissed with prejudice.
The conference continues with plaintiff's counsel explaining to the court that a jury is not needed for statutory damages "... the amount of statutory damages is a question solely for the Court." The Court responds, "Okay, do you want to get me something by Tuesday telling me why we don't need a jury?" Here it gets interesting.
Plaintiff's counsel: "Does your honor have -- certainly, I can do that. Did your honor receive -- we filed a motion yesterday." The Court: "We haven't gotten it yet. It's probably downstairs." We are having a phone conference, which was scheduled the day before the plaintiff had filed its motion, the judge is fully briefed and yet the motion is still downstairs. Or maybe this type of thing happens all the time.
The second 'phone conference' (September 26, 2007) begins on an issue that we had raised at summary judgment. Throughout this whole action, beginning with the various documents filed with the court in bringing suit, the Plaintiff had maintained infringement of marks, always in the plural. We did not catch this until summary judgment as we we thought that they were referring to one mark and the fact they seized fifty-four dresses from our home. But it turns out that plaintiff was claiming infringement of two distinct marks. The 'Diane Von Furstenberg' and 'DVF' marks. There was never any evidence of use of the DVF mark. This mark was not on the dress purchased in November 2006 nor on any of the dresses seized from our home in December 2006. Yet at summary judgment, plaintiff was requesting an award of one million dollars for the use of this mark. At the summary judgment hearing, we introduced into evidence, a copy of this mark and explained to the court that we had never seen, much less infringed on this mark and there was no evidence before the court that we had.
The Court: "... are you going to put on evidence of the infringing mark DVF and Diane Von Furstenberg or just Diane Von Furstenberg?" "We would put on evidence of both. I think -- I thought we had evidence of both in our summary judgment brief."
At this point, we know that there is no evidence of the DVF mark. The court seems to be aware of this as well: The Court: "Okay, I don't know that you do as to DVF. So you may have to present some evidence as to that." Never mind that discovery closed two months previously and that the damages trial before a jury is now three days away (this was Wednesday and the trial is the coming Monday) but the court is nothing if not fair and gives Plaintiff's counsel some additional time to sort this out. The Court: "Well, let us know tomorrow. What time can you let us know?" But another interesting part here...
Plaintiff's counsel: "What I might do -- and I'd have to think this through your honor. I'm just throwing this out as a possibility. Perhaps we move -- if it's not there, we move for summary judgment on it. If we don't get it, that's the end of it. It's either there or it's not."
Again, we are not attorneys but it seems that to move for summary judgment on this, the very idea itself to be a strange one. Plaintiff's counsel is proposing to move for summary judgment on plaintiff's claim for infringement of the 'DVF' mark for which they have no evidence of infringement and then we would have to come back with specific facts as would be admissible at trial, that plaintiff does not have any evidence that we infringed on the 'DVF' mark? That's overly confusing.
Also, that would be a motion that has to be filed and a hearing set. And then the trial date being just a few (three) short days ahead. Wouldn't an emergency motion for another trial date have to be filed? And a hearing noticed and then we would surely oppose this motion. And what would the grounds be for an extension of time? Plaintiff's counsel in this matter are the experts in trademark law. The law firm ranked number one in Intellectual Property representation. They have had better part of a year to put this case together and prosecute it against two pro se defendants.
We remain curious as to how this would have played out. It's like being forced to watch a movie. In spite of yourself, you get caught up in the plot and after having set through three quarters of the movie, you're now forced to leave before you see how it turns out. The court likely would have granted any motion that the plaintiff filed regardless of our opposition; but then at the jury trial on damages how would statutory damages been awarded (no notice, no r in a circle)?
The issue of the DVF mark was resolved in a decidedly anti-climatic manner. No motion for summary judgment. No motion for a new trial date. In the third phone conference (September 27, 2007) , when asked how plaintiff wanted to proceed on the DVF mark, plaintiff's counsel simply stated "One, we did not find what I thought had been there. So take that one out." 'Take that one out' is not a legal term that we are familiar with; reserved no doubt for use in only limited and very unique circumstances.
The court winds things up telling my wife that she is not entitled to a jury trial on damages. The Court: "... you won't need them now if it's statutory damages, you're not entitled to a jury trial. So unfortunately, both of you are going to have to let me decide it."
Regarding a right to a jury trial on statutory damages, the Supreme Court actually weighed in on this subject in 1998 and unanimously decided that the Seventh Amendment provides that parties have a constitutional right to jury trials in suits seeking statutory damages. (See article here ...).
It should also be noted that when Diane Von Furstenberg studios filed their complaint, they demanded a jury trial on all issues.
In addition to the Supreme Court opinion on the right to a jury trial on statutory damages, the Federal Rules of Civil Procedure Rule 38: "Right to a Jury Trial; Demand"
38 (a) reads: "The right of trial by jury as declared by the Seventh Amendment to the Constitution — or as provided by a federal statute — is preserved to the parties inviolate."
38 (b) reads: "A proper demand may be withdrawn only if the parties consent."
The third phone conference (September 27, 2007) concludes with:
Mrs. Snyder: "So what are we doing on Monday?" The Court: "Damages." Mrs. Snyder: "Just a hearing on damages?" The Court: "Yes, ma'am."
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