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Wonderland Nurserygoods Co. v. Thorley Industries, LLC

United States District Court, Third Circuit

January 17, 2014

WONDERLAND NURSERYGOODS CO., LTD., Plaintiff,
v.
THORLEY INDUSTRIES, LLC, d/b/a 4MOMS, Defendant.

MEMORANDUM OPINION AND ORDER

NORA BARRY FISCHER, District Judge.

This patent infringement case is set to commence jury selection and trial on January 27, 2014. Presently pending before the Court is Defendant Thorley Industries, LLC's ("Thorley") January 3, 2014 Motion to Exclude Plaintiff Wonderland NurseryGoods Co., Ltd.'s ("Wonderland") Amended Infringement Contentions and Supplemental Expert Report. (Docket No. 176). Upon consideration of Defendant's Motion [176], Plaintiff's Response, (Docket No. [197]), the parties' arguments presented at the motion hearing, (Docket No. [199]), and for the following reasons, said Motion [176] is GRANTED, as Plaintiff has neither requested nor received leave to serve its Amended Infringement Contentions or to reopen expert discovery, and Plaintiff's Amended Infringement Contentions and Supplemental Expert Report are untimely.

I. BACKGROUND

Wonderland filed the instant complaint against Thorley for infringement of U.S. Patent No. 8, 047, 609 (the "'609 Patent") by the accused mamaRoo device on February 12, 2012.[1] (Docket No. 1). Pursuant to the Court's Initial Patent Scheduling Order, (Docket No. 30), Wonderland served its Disclosure of Asserted Claims and Infringement Contentions ("Infringement Contentions") on Thorley on May 10, 2012, (Docket No. 177-3), and Thorley served its Non-Infringement and Invalidity Contentions on Wonderland on May 24, 2012, (Docket No. 177-4). The parties met and conferred regarding the disputed claim terms, and filed a Revised (and corrected) Joint Disputed Claim Construction Chart on September 25, 2012. (Docket Nos. 45, 46). The Court held a Markman Hearing on September 27, 2012, (Docket No. 47), and ordered preparation of the transcript, (Docket No. 51). On January 11, 2013, after receiving the Revised (and corrected) Claim Construction Chart, the transcript of the Markman Hearing, and the Pre-Hearing and Post-Hearing Briefs, (Docket Nos. 39-43, 45-47, 51, 53-54), the Court issued a Memorandum Opinion and Claim Construction Order, (Docket Nos. 58-59).

Thereafter, pursuant to the Court's Scheduling Order dated January 15, 2013, expert discovery commenced on May 8, 2013 and concluded on May 30, 2013, and motions for summary judgment and Daubert motions were due no later than July 1, 2013. (Docket No. 61). Meanwhile, on March 14, 2013, Wonderland filed an early Motion for Summary Judgment of Infringement of Claims 12-14 and 19-20 of the '609 Patent, (Docket Nos. 68-72, 76-79, 81-83), which the Court denied without prejudice to be re-filed by July 1, 2013, (Docket No. 84).

On July 1, 2013, the parties filed Cross-Motions for Summary Judgment of Non-Infringement, (Docket Nos. 104-07), and Infringement, (Docket Nos. 95-98). They filed their Oppositions on July 29, 2013, (Docket Nos. 122-25, 129-31), and Replies on August 14, 2013, (Docket Nos. 135, 140-42). On August 26, 2013, the Court heard oral argument, (Docket Nos. 143-44), after which the Court ordered preparation of the transcript, filed of record on September 13, 2013 at Docket No. 145. On December 19, 2013, the Court issued a Memorandum Opinion and Order granting in part and denying in part said Cross-Motions. (Docket Nos. 157, 158).

On December 26, 2013, without seeking leave of the Court, Wonderland served on Thorley Amended Infringement Contentions, (Docket No. 177-1), and a Supplemental Expert Report by Jerome Drobinski, [2] (Docket No. 177-2), directed at whether the gearing and linkage within the accused mamaRoo device constitute part of the alleged second motion mechanism, a necessary limitation of the patent at issue in this case. On January 3, 2014, Thorley filed this Motion to Exclude Wonderland's Amended Infringement Contentions and Supplemental Expert Report, (Docket Nos. 176, 177), to which Wonderland filed a Response, (Docket No. 197).

II. DISCUSSION

As a threshold issue, Rule 1 provides that the rules governing "all civil actions and proceedings in the United States District Courts.... should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding."[3] FED. R. CIV. P. 1. Rule 11 requires attorneys to certify that any "pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it... is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation." FED. R. CIV. P. 11(b)(1). Here, Wonderland has brought a complaint against Thorley for infringement of the '609 Patent by the accused mamaRoo device on February 12, 2012, and at that time, certified to the Court that it conducted a sufficient investigation of the facts under Rule 11. (Docket No. 1). Shortly thereafter, on May 10, 2012, Wonderland served its Infringement Contentions, (Docket No. 177-3), based on the complaint and its investigation of the facts. Now, more than eighteen (18) months later, Wonderland attempts to amend its Infringement Contentions, without leave of the Court, suggesting that it did not investigate the case at the outset when it filed its complaint and served its Infringement Contentions.

The instant case, moreover, is not the only litigation involving these parties and this technology. Parallel litigation has occurred not only at the U.S. Patent Office, (Docket No. 14), but also before Judge Mark R. Hornak in Civil Action No. 13-387 in the Western District of Pennsylvania, (Docket No. 182). Wonderland could have agreed to stay this case pending reexamination at the U.S. Patent Office, but it chose not to do so. (Docket No. 16).

A. Amended Infringement Contentions

Wonderland also could have sought leave to amend its Infringement Contentions for more than fifteen months, but it has not done so. Even after the parties met and conferred on September 25, 2012 regarding the disputed claim terms, (Docket Nos. 45, 46), the Court held its Markman Hearing on September 27, 2012, (Docket No. 47), and the Court issued its January 11, 2013 Memorandum Opinion on claim construction, (Docket Nos. 58), Wonderland did not seek leave to amend. Nor did it seek leave to amend after the Court's December 19. 2013 Memorandum Opinion resolving the parties' motions for summary judgment. (Docket No. 157).

Pursuant to this Court's Local Patent Rules,

Amendments or modifications of the Infringement Contentions or the Non-infringement and/or Invalidity Contentions are permissible, subject to other applicable rules of procedure and disclosure requirements, if made in a timely fashion and asserted in good faith and without purpose of delay. The Court's ruling on claim construction may support a timely amendment or ...

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