Weisner v. Google LLC

S.D. New York

Weisner v. Google LLC

District Court, S.D. New York·Decided June 2, 2026·No. 1:20-cv-02862·Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee eee ee eee een meen □□□ noone SHOLEM WEISNER and SHMUEL NEMANOV, : Plaintiffand ; ORDER DENYING MOTION Involuntary Plaintiff, . fOR ATTORNEY’S FEES -against- : WITHOUT PREJUDICE : 20 Civ, 2862 (AKH) : 23 Civ, 8186 (AKH) GOOGLE LLC. Defendant. © veneer □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ K ALVIN K. HELLERSTEIN, U.S.D.I.: Following entry of judgment and denial of Sholem Weisner’s post-trial motions, Google LLC seeks an award of attorney’s fees under Section 285 of the Patent Act. Whether to award attorney’s fees under Section 285 is a matter of my “equitable discretion” wherein I consider “the totality of the circumstances,” including “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence,” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 n.6 (2014). However, Weisner timely sought appeal of the final judgment and that appeal remains pending in the Federal Circuit. In my discretion, I may deny a motion for attorney’s fees while appeal is pending without prejudice and direct a new filing after the appeal has been resolved. Fed. R. Civ. P, 54(d)(2) Advisory Committee Notes (1993); accord Tancredi v, Metro. Life Ins. Co., 378 F.3d 220, 225-26 (2d Cir, 2004), “Since the pending [attorneys’ fees] motion turns on which party is the ‘prevailing party’ for purposes of entitlement to fees and costs, it is clear that the resolution of [Plaintiff's] pending appeal on the merits could potentially impact the Court’s determination of the

fee motion.” Mail Am. Commce’ns, Inc. v. World Healing Ctr. Church, Inc., 2021 WL 3159764, at *2 (S.D.N.Y, June 18, 2021). Therefore, I deny the motion without prejudice, and direct Google to refile the motion, . as necessary, after the appeal has been resolved. The Clerk of Court shall terminate ECF Nos. 520 and 522.

SO ORDERED. . Dated: June Z-2026 LL. EE New York, New York CALVIN K. HELLERSTEIN United States District Judge

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ee eee ee eee een meen □□□ noone SHOLEM WEISNER and SHMUEL NEMANOV, : Plaintiffand ; ORDER DENYING MOTION Involuntary Plaintiff, . fOR ATTORNEY’S FEES -against- : WITHOUT PREJUDICE : 20 Civ, 2862 (AKH) : 23 Civ, 8186 (AKH) GOOGLE LLC. Defendant. © veneer □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ K ALVIN K. HELLERSTEIN, U.S.D.I.: Following entry of judgment and denial of Sholem Weisner’s post-trial motions, Google LLC seeks an award of attorney’s fees under Section 285 of the Patent Act. Whether to award attorney’s fees under Section 285 is a matter of my “equitable discretion” wherein I consider “the totality of the circumstances,” including “frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence,” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 n.6 (2014). However, Weisner timely sought appeal of the final judgment and that appeal remains pending in the Federal Circuit. In my discretion, I may deny a motion for attorney’s fees while appeal is pending without prejudice and direct a new filing after the appeal has been resolved. Fed. R. Civ. P, 54(d)(2) Advisory Committee Notes (1993); accord Tancredi v, Metro. Life Ins. Co., 378 F.3d 220, 225-26 (2d Cir, 2004), “Since the pending [attorneys’ fees] motion turns on which party is the ‘prevailing party’ for purposes of entitlement to fees and costs, it is clear that the resolution of [Plaintiff's] pending appeal on the merits could potentially impact the Court’s determination of the

fee motion.” Mail Am. Commce’ns, Inc. v. World Healing Ctr. Church, Inc., 2021 WL 3159764, at *2 (S.D.N.Y, June 18, 2021). Therefore, I deny the motion without prejudice, and direct Google to refile the motion, . as necessary, after the appeal has been resolved. The Clerk of Court shall terminate ECF Nos. 520 and 522.

SO ORDERED. . Dated: June Z-2026 LL. EE New York, New York CALVIN K. HELLERSTEIN United States District Judge

Weisner v. Google LLC, (S.D.N.Y. 2026).

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