No. 21-1975 ___________________________

Tod T. Tumey; Tumey, LLP

Plaintiffs - Appellees

v.

Mycroft AI, Inc.

Defendant - Appellant

Joshua Montgomery; Michael Lewis

Defendants ____________

Appeal from United States District Court for the Western District of Missouri - Kansas City ____________

Submitted: January 12, 2022 Filed: March 4, 2022 ____________ 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 lawsuits 1 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.

1 On December 13, 2021, the United States Patent and Trademark Office determined that all claims for one of the patents in the underlying patent litigation are unpatentable and the patent’s claims will be cancelled in their entirety unless the decision is overturned. The remaining patent involved in the litigation is under agency review, with a final decision expected in May 2022. -2- 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