Well, things are hotting up nicely here, makes a pleasant change from all that interminable waiting around.
Langdell fired off
yet another motion to the Board today, seeking yet more delay and time to get himself lawyered up. The whole thing is an extended version of his usual “dog ate my homework” excuse and littered with devious scallwaggery and (at most) half-truths. I am in a nitpicky mood – so I am going to nitpick my way through the whole lot. It’s only four paragraphs.
Para 1 – Motion to strike? What motion to strike?
Co-Registrant and Co-Defendant Edge Games Inc (“Edge”
has just noticed by inspecting the filings in this matter on the PTO website that apparently Plaintiffs in this matter have obtained an Order striking Edge’s motion to vacate judgment without Edge being served with any copy of any document filed by Plaintiffs in the District Court and without the District Court giving Edge any notice of hearing such a motion to strike its motion, or giving Edge any opportunity to respond to Plaintiffs’ motion to strike its motion.
You’d gather from this that Tim didn’t know about the motion to strike, eh?
Far from it. EA and Future exhibited a copy of the motion to strike as exhibit A to their Board motion of 13th June. And we know Langdell saw that, because he responded to it and complained about it in his response of 6th July.
If he didn’t take the hint that EA and Future might just have filed the motion they said (under penalty of perjury, I might add) that they filed then it is entirely his own damn fault.
Edge notes that it did not receive a copy of Plaintiffs’ motion or of this July 23rd order, thus Edge believed the motion to strike had not been filed. Consequently, too, Edge would not have known about this court order if it had not been checking the PTO database from time to time for possible updates on these proceedings.
Dog ate my homework again. Time those dogs got disciplined. Besides, Langdell is too quick off the mark here – chances are the court order is still in the post, so really it is too early to moan.
Para 2 – It was not me, guv, it was the clerk that messed me around
Upon learning of this order, Edge today contacted the District Court clerk who has now apologized for previously advising Edge that it can file its Rule 60 motion in pro se on the condition that Edge is represented by counsel at the hearing itself. The clerk now informs Edge for the first time that he was previously incorrect and that Edge must now re-file its Rule 60 motion via attorneys.
Reading this, you might imagine that the poor unsupported underdog litigant at the mercy of the full might of EA and Future has been woefully misled by the court clerk.
Let’s just remind ourselves for starters that Langdell brought his motion in a case that
he himself started against EA. Underdog litigant my foot.
Let’s remind ourselves also that it was
Langdell himself who requested a hearing on the motion on August 16th – to be ready for that he should have been lawyered up by now already.
And besides, it is the litigant’s job to get things procedurally right. Not the clerk’s.
The clerk also informed Edge that according to the court docket Plaintiffs indicate proof of service on Edge of its motion to strike, but the clerk confirmed that Plaintiffs had the incorrect contact details for Edge and this is presumably why Edge had no knowledge of Plaintiffs filing their motion or of any hearing on their motion.
EA and Future served Langdell (according to the proof of service) by email to
corp@edgegames.com.
Usually Langdell uses
uspto@edgegames.com as his service address, so perhaps something did go wrong here?
Not a bit of it. The contact details on EA’s/Future’s motion to strike match precisely those given
by Langdell himself in the motion that they were seeking to strike.
Wrong contact details? Piffle.
The clerk has also clarified to Edge that while a date was set for Plaintiffs’ motion to strike to be heard on August 9, 2012, the judge decided to make a ruling without a hearing and this thus explains why the court order references vacating a hearing on August 9th that Edge had no knowledge of.
I’ve no idea where August 9th came from either. It might be a typo. Doesn’t matter though – as you don’t need a hearing for a procedural breach. And as we’ve seen, Langdell knew full well that this motion was happening.
Para 3 – That was plain unfair – I need more time
Given the new information that the clerk has given Edge today for the first time (which is in direct contrast to the advice given by the clerk previously in May 2012 that lead to Edge filing the Rule 60 motion in Pro Se), and given the July 23rd order that Plaintiffs apparently were just able to obtain, Edge is urgently having the Rule 60 motion re-filed via attorneys as swiftly as it is able to given that Edge has to identify and instruct attorneys to do so. However, even acting swiftly, identifying attorneys, re-drafting and re-filing this motion and being able to prove said filing to the Board will take, at least, some weeks.
I could do it in two days. Not that I would of course, and neither would any lawyer who does not want to be sanctioned by the court. Dream on Tim.
So, the woefully misled underdog litigant has belatedly realised he needs to lawyer up and seeks time to do so. Let’s remind ourselves here that Langdell has had
more than nine months already to challenge the District Court judgment. That’s more than enough. Way more than enough.
Para 4 – keep me in suspense
Since Edge is about to re-file the Rule 60 motion via attorneys,
Dream on …
and since the outcome of this motion will directly impact the outcome of these proceedings (if Edge prevails then the October 2010 order canceling Edge’s marks will be reversed/voided), and since if the Board were to cancel Edge’s marks before Edge now has time to re-file its Rule 60 motion it would be impossible to reverse the cancellations, …
Might seem picky to mention it, but neither of these scenarios impact the outcome of the Board proceedings which, we should remind ourselves, are about cancelling trademarks because of fraud and abandonment.
… Edge thus respectfully repeats its prior request via motion that these instant proceedings be stayed pending Edge re-filing its Rule 60 motion and pending the outcome of that re-filed motion.
It ain’t gonna happen. Best Langdell can hope for here is that the Board stays dormant a while longer.
What we now have is a straight race. Can Langdell file in the District Court through an attorney before the Board denies his motion and cancels the trademarks?
Run, Timmy, Run!