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55 Brake, LLC v. Audi of America

July 8, 2011

55 BRAKE, LLC, PLAINTIFF,
v.
AUDI OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

TRIALSETTING ORDER

On July 7, 2011, the Court's staff held a status conference for the purpose of setting a trial date in this matter. Deadlines were discussed, and a dispute arose over whether dispositive motions would be allowed. The resolution of that dispute will affect all deadlines, as the Court will explain below.

This case was filed on April 21, 2008. A Markman hearing was held about a year later and the decision issued about a month after the hearing. Defendant Volkswagen then filed a motion for summary judgment, alleging that the patent was invalid. The Court denied that motion, issuing its decision about a month after the hearing. The Court then issued a Case Management Order (CMO), setting trial for January 24, 2011, and setting a dispositive motion deadline of September 13, 2010.

On June 8, 2010, about three months before that dispositive motion deadline expired, the parties filed a stipulated motion to strike that deadline, and all others in the CMO, and hold a bench trial limited solely to the issue of inequitable conduct. The parties also requested that the bench trial be delayed until after the Federal Circuit issued its decision in Therasense v. Becton, an en banc case that was expected to set a new standard for inequitable conduct.

The Court reluctantly agreed despite its fear that the stipulation "could substantially delay the final resolution of this case." See Memorandum Decision (Dkt. 158) at p. 3. The Court moved the trial date three months, from January to March of 2011. At the urging of the parties, to save them from incurring fees and costs that might be unnecessary, the Court vacated the deadlines in the CMO except as they related to inequitable conduct.

Plaintiffs promptly filed a motion for summary judgment alleging the lack of any evidence of inequitable conduct. The Court heard argument on December 8, 2010, and issued a decision about a month later denying the motion. Shortly thereafter, the Court issued an Order declaring that it would proceed with the March trial date even if Therasense had not been decided.

The Court proceeded with trial on March 21, 2011, as scheduled. Following the trial, the Court allowed further briefing that was received May 2, 2011. Within a month of receiving that briefing, the Court rendered its decision finding no inequitable conduct.

If the Court had rejected the stipulation to hold a bench trial limited to inequitable conduct, this case would have been resolved in January of 2011. Instead, this case will linger well past a year from that date. With hindsight, the Court should have either rejected the stipulation or refused to strike the CMO deadlines.

This case is now over three years old. That is a travesty of justice. Yet Volkswagen seeks more time to file summary judgment motions.

The Court seriously considered denying Volkswagen's request. However, it is true that when the Court vacated the CMO deadlines at the urging of counsel, there remained about two months of time to file dispositive motions. Given that the prior period for filing dispositive motions was cut short by about two months, it would now be unfair to ban the defense from filing any dispositive motions.

Therefore, the Court will reluctantly allow the further filing of dispositive motions. The Court will expect adherence to the 20-page limit set by Local Rule; any request for over-length briefs will be denied except upon a showing of absolute necessity. Given this limit on briefing, the parties should carefully consider what, if any, issues should be raised as part of a summary judgment motion. Summary judgment should not be sought on a claim unless it clearly can be resolved as an issue of law or it truly does not involve any disputed issues of material fact. A shotgun approach to summary judgment will result in a shotgun decision from the Court summarily denying the motion.

Furthermore, to avoid delay the Court will not allow oral argument but will decide the motions on the briefs.

While the filing of dispositive motions will unavoidably add to the delay, the Court will tighten up the deadlines to move this case to trial as quickly as is consistent with fair play and substantial justice.

NOW THEREFORE IT IS HEREBY ORDERED that the following deadlines and procedures shall govern the ...


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