Plaintiff DIRECTV sought expedited discovery prior to the scheduling conference to serve third-party subpoenas. The court denied the unopposed motion, citing the plaintiff’s failure to request injunctive relief as it contended it would, or to attach the proposed subpoenas to allow the court to determine whether the requested scope of discovery was appropriately balanced between the scope of discovery and the privacy interests of defendants.
Mrs. Smith is lonesome in a too-quiet home with our twins back in school after a year of remote learning. So is the plaintiff in this case after all its claims were dismissed for failure to state a claim – without leave to replead.
Cases where there are exceptional motions going both ways due to a reversal after trial after trial are … interesting.
Motions to amend pleadings are usually not the hottest of topics in complex litigation. Often the court has permitted an extended period of amendment without leave, so it’s not particularly controversial when a party adds some claims or defenses. But when the amendment is outside the permitted period and/or late in the case the standard for amendment rises. That’s when the old adage that it’s when a pig gets stuck that it starts squealing rings true.
Defendants in patent cases sometimes allege that a plaintiff has failed to comply with the marking requirement of 35 U.S.C. § 287, and thus that pre-suit damages are limited. As here, that motion often takes the form of a motion for partial summary judgment. The Court’s order in this case provides a useful exposition on the applicable standards for patent marking, and applies those standards to the facts of this rather interesting case to determine whether the pleadings were sufficient for the plaintiff to seek presuit damages in the first place, and if so, whether the defendant met its burden to allege a limitation, and if so (also) whether the plaintiff had satisfied its burden of compliance.
Wait – I went into the ditch here. On a motion for summary judgment, the final question is not whether the plaintiff had shown compliance, but actually just whether there is a factual dispute as to whether unmarked patented products were sold. There, I feel better.
Today’s B side is what most practitioners in federal court really want to know – how do I get out? This order granting a plaintiff’s motion to remand due to lack of timely written consent, but denying fees, provides an overview of the relevant standards for both.
Several months ago I announced the last ruling that dealt with a claim of waiver for failure to assert an improper venue claim timely following TC Heartland. I was premature, because there was still this case, which was stayed due to pending IPR proceedings three months before Heartland was decided. When the stay was lifted several weeks ago, the defendant asserted an improper venue argument, and the plaintiff asserted that the defense had been waived.
When cases get close to trial, the requests for additional discovery and the orders granting it can get a bit harried as bits and pieces are granted or denied. And sometimes those grants (or denials) come with costs that do have a price tag. Here are a couple of recent orders from the Eastern District of Texas that illustrate how those can work out.
Without exception, each of the panels or talks I have been involved with since TC Heartland came out have agreed that waiver isn’t really worth talking about because as an issue it would go away with time as improper venue became a standard issue for defendants to analyze under the new cases.
This may, therefore, be one of the last cases where a court specifically finds that a proper venue defense was forfeited as a result of delay raising it after the change in the law, although the facts are a little unusual, given that the improper venue defense had already been raised by motion twice, denied twice, and mandamus sought and denied. This, the third motion, was raised seven months after In re Micron was decided, and was denied as well.
This venue opinion is sort of a double-header, since it includes an order from Magistrate Judge Love, followed by a second order overruling objections to a different report & recommendation from Judge Love by Judge Schroeder. So maybe that’s a tripleheader, but the middle one is secret.
