Geotag v. Circle K Stores, Inc., et al., 2:11cv405 (8/14/12)
Judge: Michael Schneider
Holding: Emergency Motion to Stay Scheduling Order Deadlines and Objections to Scheduling Order DENIED
A number of rceent orders dealing with either multidefendant or serially filed cases have included provisions designating a "lead defendant" for claims construction purposes. The provsions are usually along the following lines:
For efficiency purposes, one Defendant will be designated as the Lead Defendant for briefing and arguing the claim construction issues raised in this case. Defendants must file a joint notice designating the Lead Defendant ten (10) days prior to the deadline to exchange proposed terms for construction (pursuant to P.R. 4-1). The Court will designate a Lead Defendant if the Defendants are unable to agree.
On behalf of all Defendants, the Lead Defendant must comply with the requirements of P.R. 4-2, 4-3, and 4-5(d) and fully brief the claim construction issues and the motion for summary judgment of indefiniteness pursuant to the deadlines set forth in this order. The Lead Defendant must coordinate with the other Defendants throughout the claim construction stage. This includes briefing all of the terms requested by substantially all of the Defendants. Accordingly, the Lead Defendant should confer with all of the Defendants to identify a reasonable number of terms for construction. The Court expects Defendants to reach a cost-sharing arrangement regarding the costs incurred by the Lead Defendant. (Parties in all cases should be given notice of all communications between the Plaintiff and Lead Defendant. All filed documents must be filed simultaneously in all of the related cases that are governed by this order, using a serial caption similar to the one used in this order.)
After the Lead Defendant files the responsive claim construction brief and the motion for summary judgment of indefiniteness (if any), any individual Defendant may file a separate brief on additional issues. The additional brief shall not exceed ten (10) pages, and it must be filed within seven (7) days after the Lead Defendant files the responsive claim construction brief and the motion for summary judgment of indefiniteness. The Court expects Defendants to cooperate with the Lead Defendant in preparing the briefing to limit the number of additional, separate briefs filed. Plaintiff may respond to any additional, separate briefs within ten days from the date of filing.
This morning, Judge Schneider provided further clarification on the procedure in a written opinion. Writing in Geotag v. Circle K (in which he issued another opinion today that may be of interest as well) he addressed an Emergency Motion to Stay Scheduling Order Deadlines and Objections to Scheduling Order brought by Defendant J. Crew. J. Crew argued that the imposition of any scheduling deadlines should be suspended given that it has several pending motions before the Court. J. Crew also alleged that the Court’s procedure for claim construction briefing and argument violated its due process rights. With respect to the stay, Judge Schneider denied the motion. holding that "[a] stay of the scheduling order in light of J. Crew’s pending motions would unnecessarily and unjustifiably delay litigation," and, after noting that J. Crew cited to no authority to justify a stay in this circumstance, held that "[t]he Court will not issue a stay merely for the convenience of the moving party."
With respect to the lead defendant provision, the Court had this to say:
J. Crew claims it is improper to require an unrelated defendant to argue claim construction on J. Crew’s behalf. Although J. Crew objects to the Court’s procedure, it does not propose any substitute procedure. The Court’s procedure mimics the accepted procedure of assigning lead parties in complex cases, such as in multidistrict litigation and class action suits. See generally, Wilson v. Merrill Lynch & Co., 671 F.3d 120, 127 (2d Cir. 2011) (implementing a lead plaintiff in a securities related multidistrict litigation case); In re Aqua Dots Prods. Liab. Litig, 270 F.R.D. 377, 379 (N.D. Ill. 2010) (invoking lead defendant in products liability related multidistrict litigation). The lead defendant requirement does not prevent J. Crew from raising any issues specific to itself. The procedure implemented by the Court allows defendants to file a responsive letter brief to address issues specific to that defendant that are not addressed in the common briefing. To the extent the defendants can agree, the lead defendant requirement does not prevent the parties from dividing up the briefing or argument on the agreed terms. The lead defendant in effect acts as the liaison for all the defendants during the Markman procedure. Although the lead defendant is the responsible party, it serves in a representative capacity on behalf of all defendants for common issues. Accordingly, the Court is unpersuaded that its procedure deprives J. Crew of any constitutional right. See In re Katx Interactive Call Processing Patent Litig., 639 F.3d 1303, 1311 (Fed. Cir. 2011) (“To make out a due process claim, [a party] must demonstrate that the district court’s … procedure risked erroneously depriving it of its rights and that the risk outweighed the added costs associated with a substitute procedure.”).
Accordingly, Judge Schneider denied the motion.