Tumey v. Mycroft AI, Inc.

27 F.4th 657

Tod T. TUMEY; Tumey, LLP, Plaintiffs - Appellees

v.MYCROFT AI, INC., Defendant - Appellant

Joshua Montgomery; Michael Lewis, Defendants

No. 21-1975

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2022

Filed: March 4, 2022

Eric Michael Adams, David K. Wooten, Turney, LLP, Houston, TX, Stacey R. Gilman, Lauren Tallent, Berkowitz & Oliver, Kansas City, MO, for Plaintiffs - Appellees.

Jean Paul Bradshaw, II, Reid Kelly Day, Tedrick A. Housh, III, Lathrop GPM LLP, Kansas City, MO, Robert P. Greenspoon, Dunlap & Bennett, Chicago, IL, for Defendant - Appellant.

Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Mycroft AI, Inc.; Joshua Montgomery; and Michael Lewis appeal the district court's grant of a preliminary injunction. We vacate the injunction and remand for reassignment to a different judge.

I. BACKGROUND

Tod Tumey is an attorney who resides in Texas and is the managing partner of Tumey L.L.P. Mycroft is a Delaware corporation with its principal place of business located in Kansas City, Missouri. Mycroft's business is an open-source network focusing on voice assistance technology. It permits unfettered access to its source code so others can build new technologies and tools utilizing Mycroft's unique voice assistant capabilities. Joshua Montgomery ("Montgomery") is a resident of Hawaii and the founder of Mycroft. Michael Lewis ("Lewis") resides in California and is Mycroft's chief executive officer.

In February 2021, Tumey and Tumey L.L.P. (collectively, "Tumey") brought this action, alleging that Tumey's representation of Voice Tech Corporation in pending and separate patent infringement lawsuits¹ against Mycroft, Montgomery, and Lewis (collectively, "Mycroft") prompted Mycroft to retaliate by launching and/or inspiring a series of cyber-attacks against Tumey. In the complaint, Tumey alleged three waves of targeted cyber-attacks and harassment activity that, at various times, hindered his ability to serve his clients, required him to incur expenses in lost time and productivity, forced him to hire a computer specialist to assist in defending against the attacks, and interfered with his and his family's email and social media accounts. In addition to the information warfare, Tumey claims that since the complaint in this case was served, his law firm has received phone calls in which the caller "menacingly breathes and hangs up." He contends the firm and its personnel have continued to experience cyber-attacks, hacking attempts, and heavy-breathing phone calls.

Tumey's complaint alleges violations of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. §§ 1962(c) & 1962(d) ; the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq. ; the Stored Wire and Electronic Communications Act, 18 U.S.C. § 2701, et seq. ; and various state and common law claims for tampering with computer data equipment, breach of computer security, intrusion on seclusion, tortious interference with business expectancy, assault, and intentional infliction of emotional distress.² Trial is currently scheduled to begin on August 29, 2022.

Mycroft has publicized its general view of patent trolls and specifically its involvement in the underlying patent litigation. These efforts have included writing articles, posting comments on social media, and asking others who believe patent trolls are bad for open source to re-post, link, tweet, and share its posts. Specifically, Mycroft announced on its blog that its policy is to "attack bogus patents" and has vowed "to litigate every single patent suit to the fullest extent possible including appealing any adverse decisions all the way to the Supreme Court." In reference to patent trolls, Mycroft expressed its belief that it is "better to be aggressive and ‘stab, shoot and hang’ them, then dissolve them in acid." At one point, it posted on its blog links to "Tumey's ‘confidential correspondence’ " as well as documents in the underlying patent infringement lawsuit. Mycroft has kept its followers updated on developments in the underlying patent litigation with headlines such as "Mycroft Defeats Patent Trolls ... Again ... For Now"; has cautioned patent trolls to "stay away" from Mycroft because "You'll get your ass kicked;" and has described its motive as "Rather than pay the troll toll, we decided to accept the fight."

In the underlying patent litigation, Tumey (on behalf of Voice Tech Corporation) moved for an order requiring decorous and civil conduct by the parties, which included a request that Mycroft cease using the term "patent troll." In April 2020, the court orally ordered that, at least for the pendency of the case or until ordered otherwise, Mycroft (1) remove the links to Tumey's confidential correspondence; (2) delete the request for others to share Mycroft's posts or otherwise call people into action; and (3) take down what the court viewed as threatening or improper statements. The court further ordered Mycroft to "assertively search and take down" similar statements whether posted on Facebook, blogs, or wherever. Mycroft viewed the order as sufficiently narrow and limited in scope such that it was willing to comply with the restrictions rather than appeal.

In this action, Tumey sought to expand the restrictions and moved for a temporary restraining order or, in the alternative, an expedited preliminary injunction. The grounds for the request included the cyber-attacks, phishing, and harassing phone calls that Tumey and his family experienced and expected to continue to endure absent a court order. Tumey believed Mycroft was responsible for the attacks because the company's executives had the expertise, and the attacks would intensify after a significant event in the litigation occurred. For relief, Tumey requested that the district court "enter an order temporarily restraining and enjoining—for 14 days from the date of the order, and subject to extension by the Court for good cause—Defendants [and others]" from engaging in certain specified conduct, including cyber-attacks, hacking, and other harassing behavior. Tumey circulated to the district court and opposing counsel a proposed temporary restraining order.

Mycroft opposed the motion for a temporary restraining order, contending there was no evidence to attribute any of the cyber-attacks or phone calls to Mycroft. Mycroft has maintained, and vigorously argued to the district court, that Tumey's case is built around mere speculation. As part of its response to the motion, Mycroft submitted sworn declarations averring that no one associated with Mycroft was involved in the cyber-attacks or harassment being waged on Tumey personally, his firm, or Tumey's family.

The court set a telephone conference on the "Motion for Temporary Restraining Order" for March 29, 2021, at 1:00 p.m. R. Doc. 20. The notice was updated on March 26, 2021, to reflect the "evidentiary hearing" would be held via videoconference. R. Doc. 31. At 11:54 a.m. (about one hour before the hearing's scheduled start time), Tumey circulated to the court and counsel a proposed preliminary injunction order. At the hearing, Mycroft objected to converting the request for a temporary restraining order to a preliminary injunction, specifically expressing concerns about the last-minute conversion:

We are going to - - we would object strongly to a preliminary injunction being the ultimate order in this particular proceeding.

As you can appreciate here early on, we've had an opportunity to - - to do no discovery. And as you'll hear, we believe there's a complete absence of any real meaningful information about intrusions and how those occurred with respect to the plaintiffs, whether it's their computer systems or other information. And we would - - if we're going to go down the preliminary injunction route, we would like to have the opportunity to have our expert do his own analysis so that we can respond in a meaningful way.

Plaintiffs said, I thought rather ironically, in their - - in some of their suggestions that our expert wasn't detailed and specific. Well, it's because he doesn't have information because there wasn't any information of any real substance included in their expert's declaration. So we've not had an opportunity to really do the kind of analysis that would be necessary to determine whether any of the defendants in this case were actually the ones who - - who did any acts as alleged in the complaint or in the motion for - - motion for TRO or preliminary injunction.

So, Judge, that would be my only thing is to make our strong objection to the idea that we would proceed on a preliminary injunction that would stand up in this court and - - in this case, rather, until final determination on the merits.

The district court was unpersuaded by Mycroft's objection and proceeded to receive testimony from Tod Tumey, Chilton Webb, Christina Butler, and Michael Perry. Tumey and Webb are business partners. Tumey represented Webb for a few years on patent matters. Tumey retained Webb to fend off and analyze the attacks. Tumey and Webb offered detailed testimony about the nature and extent of the cyber-attacks and harassing behavior. But, when Tumey was asked by Mycroft's counsel about his analysis of the many emails and whether any appeared to come from any of the Mycroft defendants, Tumey responded: "No. Just the pure timing of them." When counsel attempted to inquire further about the results of Webb's investigation, the court interrupted and sua sponte ordered Tumey not to disclose what the investigation had uncovered. Similarly, when Mycroft's counsel asked Webb about any connection he found to Lewis, Webb responded: "I'm not going to bring up the evidence we have in this case right now, which you guys will see soon enough." Webb described how he set up a trap (a "honey pot") to identify the perpetrators and though there were increased hacks or attempted hacks logged following activity in this case ...