Free Motion for Reconsideration - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IOVATE HEALTH SCIENCES U.S.A., INC., et al., Plaintiffs, v. WELLNX LIFE SCIENCES INC., et al., Defendants. : : : : : : : : : : :

C.A. No. 07-286-JJF

IOVATE'S MOTION FOR RECONSIDERATION OF THE COURT'S MARCH 25, 2008 ORDER (D.I. 56) Plaintiffs Iovate Health Sciences U.S.A., Inc. and Iovate T&P, Inc. (collectively "Iovate" or "Plaintiffs"), hereby respectfully move, pursuant to D. Del. LR. 7.1.5, for reconsideration of the Court's March 25, 2008 Order (D.I. 56). I SUMMARY OF ARGUMENT The March 25, 2008 Order Conflicts with the February 28, 2008 Order and Effectively Precludes Iovate From Completing Jurisdictional Discovery The Court's March 25, 2008 Order (D.I. 56) (the "New Order") (Exh. A) states that "the deadline for jurisdictional discovery has passed," and orders Iovate to respond substantively to the motion of Bradley and Derek Woodgate ("Individual Defendants") to dismiss (D.I. 13) by April 18, 2008. The New Order directly conflicts with the Court's earlier order of February 28, 2008 (D.I. 50) (the "Prior Order") (Exh. B). The Prior Order allows Iovate to take the deposition of each of the Individual Defendants in Canada--but only one time in the case--and then respond to the motion to dismiss within 10 days of the depositions. Notably, the Prior Order did not set a deadline for taking the allowed depositions, and Iovate accordingly believed it was free to take these "one time only" depositions of the Individual Defendants in the normal course of fact discovery. Iovate's understanding in that regard was highlighted for the Court by its reply

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letter of February 15, 2008 (D.I. 48) (Exh. C) ("Therefore, if the Court is content to allow Iovate to take the Woodgates' depositions in the course of general fact discovery (those `one-time' depositions to include any jurisdictional issues), then paragraphs 1-3 of defendants' proposed order [Attachment 1 to D.I. 47] are fine with Iovate.") Without relief from the New Order, Iovate will be severely prejudiced in that it will not have had a realistic opportunity to make a record of the necessary facts to support jurisdiction. Although the Individual Defendants did serve written responses to Iovate's jurisdictional interrogatories and document requests, Iovate has yet to receive any documents from the Individual Defendants. In addition, the parties have only just commenced general fact discovery. The Individual Defendants are believed to be the owners and decision makers of the closely held corporate defendants, and the persons who directed and caused the acts of patent infringement. Thus, their testimony will be crucial to the liability issues in this case, and it would be premature and unfair for Iovate to have to take "one-shot" depositions of the Individual Defendants (on all issues in the case, both jurisdiction- and merits-related) prior to the substantial completion of document production and written discovery (in accordance with the Court's standard practice).1 In short, the New Order creates manifest injustice by requiring Iovate to complete its opposition briefing without the benefit of documents or depositions of the Individual Defendants, despite the fact that the Court has already found that jurisdictional discovery is warranted.

1

The Court consistently orders, as it did in this action, that fact discovery depositions "shall not commence until [document production and discovery through interrogatories and requests for admission] is completed." See D.I. 32 (October 2, 2007 Scheduling Order), paragraph 3(d) (Exh. D); Form Rule 16 Scheduling Order (Patent Revised 2/08), paragraph 4(d)) (Exh. E).

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II.

BACKGROUND FACTS AND PROCEDURAL HISTORY The Individual Defendants filed a motion to dismiss for lack of personal jurisdiction on

July 16, 2007 (D.I. 13). In response to the motion, Iovate moved for enlargement of the briefing schedule in order to permit jurisdictional discovery (D.I. 20). Although that motion understandably had to be filed prior to the deadline it sought to extend, it was filed outside of the 30-day window required by the Court's December 15, 2006 standing order on non-case dispositive motions in patent cases, and was stricken from the case docket on August 2, 2007. Iovate, on that same day, filed a limited response to defendants' motion to dismiss (D.I. 21) and a letter to the Court again requesting limited jurisdictional discovery of the individual defendants (D.I. 22). Bradley and Derek Woodgate filed a "reply brief" on their motion to dismiss on August 13, 2007 (D.I. 25), a significant portion of which was devoted to their opposition to Iovate's request for jurisdictional discovery. On August 16, 2007, the Court entered an Order (D.I. 27), extending the time for Iovate to file its answering brief in response to the motion to dismiss "until a date after Plaintiffs' Motion for Jurisdictional Discovery has been resolved." Shortly thereafter, the parties engaged in various negotiations regarding the possibility of both sides filing amended pleadings. See, e.g., Exhs. F. G. H.2 During this period, no discovery was initiated by either side on any subject. The parties eventually requested two extensions of the original deadline for amendment of pleadings. (See D.I. 33, 34.) By January 25, 2008, however, the parties had reached agreement and were able to submit their respective unopposed motions to file amended pleadings. (See D.I. 35, 37.) The parties' amended pleadings were docketed on January 30, 2008. (See D.I. 40, 42.)

(F) November 8, 2007 R. Colaizzi letter to J. Canada; (G) January 10, 2008 J. Parrett letter to J. Ingersoll and K. Keller; (H) January 17, 2008 e-mail from C. Glynn to R. Colaizzi.

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Thus, it was only after January 30, 2008 that the parties began to re-focus on planning fact discovery and Iovate in particular to address the pending motion to dismiss and how it might attempt to obtain whatever jurisdictional discovery it might be permitted to take to respond effectively (i.e., either by renewing its Motion for Jurisdictional Discovery, or working out some arrangement with Defendants whereby Iovate could complete the necessary jurisdictional discovery in the course of fact discovery). Then, just three business days later, Iovate received notice of the Order setting a deadline for the completion of jurisdictional discovery by February 16, 2008. (D.I. 44.) Iovate's electronic receipt on Monday, February 4, 2008 of the Court's February 1, 2008 Order was the first notice to Iovate that it could rightfully begin taking jurisdictional discovery of the Individual Defendants. In response to the February 1 Order, Iovate promptly served requests for production, interrogatories and notices of deposition on both of the Individual Defendants. Iovate was keenly aware, however, that it would be difficult (if not impossible) to complete this discovery prior to the Court-ordered deadline of February 16, 2008 without the full cooperation of the defendants in meeting the expedited schedule. Therefore, on February 7, 2008, Iovate proposed the following schedule for jurisdictional discovery: · · · Discovery requests to be served by Friday, February 8, 2008. 30 days for defendants to respond to the discovery requests (March 10, 2008). Depositions to take place the week of March 10, 2008.

(See Exh. I at p.1.) Continuing their steadfast refusal to cooperate in jurisdictional discovery, defendants tersely responded to Iovate's proposal as follows: "We cannot agree to your proposal for an extension because Judge Farnan's clear preference is for all jurisdictional discovery to conclude by February 16." (Exh. I at p.2.) Iovate followed up with defendants to find out if they

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would appear for depositions on the noticed dates (February 13 and 14 in Toronto, Canada) (Exh. I at p.3, 4.). Defendants' counsel indicated that because of purported "defects" in the February 7 discovery papers, Iovate "should assume that the depositions will not go forward" and that the interrogatories and document requests "are untimely and cannot be answered before February 16." (Exh. I at p.5.) While disagreeing that the discovery papers were untimely or defective, Iovate nonetheless offered to depose the two defendants on the last business day of the discovery period. (Exh. I at p.6.) Defendants' counsel squarely rejected that proposal, claiming erroneously that "Judge Farnan's [February 1, 2008] Order is not an order for expedited discovery," and that "[Iovate has] had six months for jurisdictional discovery." (Exh. I at p.7.)3 The February 1, 2008 Order stated that "[i]f the parties are unable to complete jurisdictional discovery by February 16, 2008, they shall inform the Court before that date why additional time is required." (D.I. 44, ¶ 2.) Therefore, Iovate filed a letter with the Court on February 11, 2008, asking for an extension of the February 16, 2008 jurisdictional discovery deadline. (D.I. 46.) Defendants responded by letter of February 13, 2008 (D.I. 47), asserting baselessly that "Plaintiffs waited until the very last minute" to serve jurisdictional discovery requests (in fact, Iovate did not have leave to take jurisdictional discovery prior to receiving the February 1 Order), and that the requests were "deficient" (completely failing to consider that the two-week jurisdictional discovery period was expedited in nature and obviously would not allow for the standard discovery response times).
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To the contrary, the Court's August 16, 2007 Order (D.I. 27) did not grant Iovate leave to conduct jurisdictional discovery. That Order merely extended the time for Iovate to file its answering brief in response to the Individual Defendants' motion to dismiss "until a date after Plaintiffs' Motion for Jurisdictional Discovery has been resolved." Thus, the August 16, 2007 Order clearly acknowledged that the jurisdictional discovery issue had yet to be resolved, and it is utterly disingenuous of Defendants to suggest that they would not have vigorously opposed any attempt by Iovate to take jurisdictional discovery prior to the issuance of the February 1, 2008 Order granting jurisdictional discovery.

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Looking past defendants' bluster, Iovate noted that the substance of the order which defendants were proposing (numbered paragraphs 1 - 3 of Attachment 1 to D.I. 47) was not objectionable. On its face, defendants' proposed order would require the Woodgates respond to Iovate's jurisdictional interrogatories and document requests, and would allow Iovate to examine the Woodgates by deposition on both jurisdictional issues and on the merits of the action, but only one time in the case. This was acceptable to Iovate, provided that Iovate could take those depositions at an appropriate time in the normal course of fact discovery. The defendants' proposed order did not set any deadline for the Woodgates' depositions (aside from the implicit fact discovery deadline of July 25, 2008). To avoid any possible misunderstanding, however, Iovate wrote to the Court on February 15, 2008: Therefore, if the Court is content to allow Iovate to take the Woodgates' depositions in the course of general fact discovery (those `one-time' depositions to include any jurisdictional issues), then paragraphs 1-3 of defendants' proposed order are fine with Iovate. See D.I. 48. The Court then issued its Prior Order of February 28, 2008 (D.I. 50). Although the Individual Defendants did serve written responses to Iovate's February 7, 2008 jurisdictional interrogatories and document requests on March 17, 2008 (Iovate having allowed a one-week extension beyond the court-ordered response date of March 10, 2008), Iovate has yet to receive any documents from the Individual Defendants. In addition, the parties have only just commenced general fact discovery.4 To date, therefore, the Individual Defendants have not been deposed, nor have dates been agreed on for their "one time only" depositions. On March 25, 2008, the New Order issued from the Court (D.I. 56). This Order, contradicting the Prior Order, states that "the deadline for jurisdictional discovery has passed"

Plaintiffs served their first sets of interrogatories and requests for production on March 24, 2008, and Defendants served their first sets of interrogatories and requests for production on March 19, 2008. See D.I. 55, 54.

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and that Iovate needs to file its substantive opposition to the Individual Defendants' motion to dismiss "no later than April 18, 2008." III. ARGUMENT A. The Legal Standard.

A motion for reconsideration should be granted if "it appears that the court has patently misunderstood a party, has made a decision outside the adversarial issues presented by the parties, or has made an error not of reasoning, but of apprehension." UD Technology Corp. v. Phenomenex, Inc., C.A. No. 05-842-GMS, Order, at 2 (D. Del. Jan. 26, 2007). See also Kelly v. MBNA America Bank, C.A. No. 06-228-JJF, 2007 U.S. Dist. LEXIS 87618 at *7-8 (D. Del. Nov. 29, 2007). Further, a district court should grant a motion for reconsideration when "...(3) there is a need to correct a legal or factual error which has resulted in a manifest injustice." Willow Bay Assocs., LLC v. Immunomedics Inc., C.A. No. 00-99-GMS, 2002 U.S. Dist. LEXIS 10566, at *5-6 (D. Del. June 12, 2002). "The Court should not hesitate to grant the motion when compelled to prevent manifest injustice or to correct clear error." Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1241 (D. Del. 1990). B. The March 25, 2008 Order Must Have Been Issued In Error And Would Clearly Cause Manifest Injustice To Iovate.

The New Order of March 25, 2008 (D.I. 56), is clearly in conflict with the Prior Order dated February 28, 2008 (D.I. 50). The Prior Order required, inter alia, the Individual Defendants to "appear for depositions in Canada, but only one time in the case, unless otherwise ordered for good cause." D.I. 50 at ¶ 2. Iovate reasonably understood Prior Order to allow the Individual Defendants' "one time only" depositions to take place as soon as practical and convenient for the parties, but not to set a hard and fast date for completion of those depositions,

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and certainly not to force Iovate to take those depositions prior to the substantial completion of written discovery and document production in the case. See D.I. 48. The New Order states that "the deadline for jurisdictional discovery has passed," despite the fact that the February 28, 2008 Order did not set a deadline for completing the "one time only" (jurisdiction plus merits) depositions of the Individual Defendants. The New Order also requires Iovate to submit its brief in opposition to the Individual Defendants' motion to dismiss by April 18, 2008. This Order causes manifest injustice to Iovate by requiring it to complete its substantive response to the motion to dismiss without the benefit of documents or depositions of the Individual Defendants--even though the Court has already found that jurisdictional discovery is warranted. Indeed, documents not yet produced by the defendants, including the Individual Defendants, will be relevant on the issue of personal jurisdiction over the Individual Defendants. For example, corporate records and documents concerning activities of the Individual Defendants on behalf of the corporations will be relevant on this issue. Further, the Individual Defendants' deposition testimony will also be relevant on the issues of liability in this matter, namely patent infringement, since they are believed to be the primary, if not the sole, decision makers for the corporate defendants. In addition, one of the Individual Defendants, Derek Woodgate, had actual knowledge of one of the patents in suit (the `900 patent) when he worked at Plaintiff Iovate T&P, Inc.'s predecessor in interest several years ago and assisted in the acquisition of this patent. Therefore, it would be a waste of resources to depose the Individual Defendants prior to receiving the documents Iovate has requested concerning the merits of this case.5

It is small comfort that Iovate could conceivably move the Court for leave to take the Woodgates' depositions a second time "for good cause." See Prior Order (D.I. 50), handwritten addition to paragraph 2.

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In other words, if Iovate is to be limited to "one-shot" depositions of the Individual Defendants (on all issues in the case, both jurisdiction- and merits-related), it would be premature and unfair for Iovate to have to take those depositions until it has received from defendants a reasonable amount of general fact discovery. CONCLUSION For all of the reasons set forth herein, Iovate respectfully requests that the Court vacate its March 25, 2008 Order (D.I. 56), and allow the parties to complete document and deposition discovery on the jurisdictional issues, and to submit their answering and reply briefs on the Individual Defendants' motion to dismiss, on the terms and in accordance with the schedule set forth in the Court's February 28, 2008 Order (D.I. 50). YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
April 4, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 [email protected] Attorneys for Plaintiffs

OF COUNSEL: Richard L. DeLucia Howard J. Shire Jerry Canada KENYON & KENYON LLP One Broadway New York, NY 10004 (212) 425-7200

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CERTIFICATE OF SERVICE I, Karen L. Pascale, Esq., hereby certify that on April 4, 2008, the foregoing document was electronically filed with the Clerk of the Court using CM/ECF, which will send notification that such filing is available for viewing and downloading to the following counsel of record: Rodger D. Smith, II, Esq. [[email protected]] James W. Parrett, Jr., Esq. [[email protected]] MORRIS NICHOLS ARSHT & TUNNELL LLP 1201 N. Market Street Wilmington, DE 19899 Additionally, I hereby certify that the foregoing document was served on counsel of record as indicated below: By Hand Delivery and E-Mail Mary B. Graham, Esq. [[email protected]] Rodger D. Smith, II, Esq. [[email protected]] James W. Parrett, Jr., Esq. [[email protected]] MORRIS NICHOLS ARSHT & TUNNELL LLP 1201 N. Market Street Wilmington, DE 19899 By E-Mail Roger Colaizzi, Esq. [[email protected]] Jeffrey A. Dunn, Esq. [[email protected]] VENABLE, LLP 575 7th Street, NW Washington, DC 2004-1601 Tamany Vinson Bentz, Esq. [[email protected]] VENABLE, LLP 2049 Century Park East Suite 2100 Los Angeles, CA 90067

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YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
April 4, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) [[email protected]] Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 Attorneys for Plaintiffs

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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(Patent Revised 2/08)

RULE 16 SCHEDULING ORDER

The parties having satisfied their obligations under Fed. R. Civ. P. 26(f), IT IS ORDERED that: 1. Pre-Discovery Disclosures. The parties [have

exchanged] [will exchange] by (date) the information required by Fed. R. Civ. P. 26(a)(1) and D. Del. LR 16.1. 2. Joinder of other Parties. All motions to join (date) .

other parties shall be filed on or before 3. Settlement Conference.

Pursuant to 28 U.S.C. §636,

this matter is referred to Magistrate Judge ___________ for the purposes of exploring the possibility of a settlement. parties agree that they would benefit from a settlement conference, the parties shall contact the Magistrate Judge to schedule a settlement conference so as to be completed no later than the Pretrial Conference or a date ordered by the Court. 4. Discovery. (a) Exchange and completion of contention interrogatories, identification of fact witnesses and document production shall be commenced so as to be completed by (date) (b) Maximum of interrogatories, including . If the

contention interrogatories, for each side. (c) Maximum of requests for admission by

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each side. (d) Maximum of and depositions by plaintiff(s)

by defendant(s), excluding expert depositions.

Depositions shall not commence until the discovery required by Paragraph 3(a, b and c) is completed. (e) Reports from retained experts required by Fed. R. Civ. P. 26(a)(2) are due from the party with the burden of proof on the issue the expert is offered thirty (30) days after the issuance of the Court's Markman decision. (f) Any party desiring to depose an expert witness shall notice and complete said deposition no later than thirty (30) days from receipt of said expert's report, unless otherwise agreed in writing by the parties or ordered by the Court. 5. Non-Case Dispositive Motions. (a) Any non-case dispositive motion, along with an Opening Brief, shall be filed with a Notice of Motion. The

Notice of Motion shall indicate the date on which the movant seeks to have the motion heard. The hearing date selected shall

allow time for filing of the motion, allow for briefing in accordance with the Federal and Local Rules, and shall permit all briefing to be filed no later than 12:00 noon the Friday before the motion day on which it is to be heard. Available motion

dates will be posted on the Court's website at: http://www.ded.uscourts.gov/JJFmain.htm (b) At the motion hearing, each side will be

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allocated ten (10) minutes to argue and respond to questions from the Court. (c) Upon filing of the Notice of Motion, a copy of said Notice shall be sent to Chambers by-email at: [email protected] 6. Amendment of the Pleadings. All motions to amend . Any case dispositive

the pleadings shall be filed on or before 7. Case Dispositive Motions.

motions, pursuant to the Federal Rules of Civil Procedure, shall be served and filed with an opening brief on or before 20 . Briefing shall be pursuant to D. Del. LR 7.1.2. , No case

dispositive motion may be filed more than ten (10) days from the above date without leave of the Court. The parties shall follow

the Court's procedures for summary judgment motions which is available on the Court's website at: http://www.ded.uscourts.gov/JJFmain.htm 8. Markman. A Markman Hearing, if necessary, will be The parties shall identify and exchange

held on _______________.

their contentions at least forty-five (45) days before the Markman Hearing. Briefing on the claim construction issues shall

be completed at least twenty (20) days prior to the hearing. The Court, after reviewing the briefing, will allocate time to the parties for the hearing. 9. Applications by Motion. (a) Any applications to the Court shall be by

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written motion filed with the Clerk of the Court in compliance with the Federal Rules of Civil Procedure and the Local Rules of Civil Practice for the United States District Court for the District of Delaware (Amended Effective June 30, 2007). Any non-

dispositive motion shall contain the statement required by D. Del. LR 7.1.1 and be made in accordance with the Court's February 1, 2008 Order on procedures for filing non-dispositive motions in patent cases. pages. Briefs shall be limited to no more than ten (10)

Parties may file stipulated and unopposed Orders with the The Court

Clerk of the Court for the Court's review and signing.

will not consider applications and requests submitted by letter or in a form other than a motion. (b) No facsimile transmissions will be accepted. (c) No telephone calls shall be made to Chambers. (d) Any party with a true emergency matter requiring the assistance of the Court shall e-mail Chambers at: [email protected]. The e-mail shall provide a short

statement describing the emergency. 10. Pretrial Conference and Trial. After reviewing

the parties' Proposed Scheduling Order, the Court will schedule a Pretrial Conference. The Court will determine whether the trial date should be scheduled when the Scheduling Order is entered or at the Pretrial Conference. If scheduling of the trial date is

deferred until the Pretrial Conference, the parties and counsel shall anticipate and prepare for a trial to be held within sixty

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(60) to ninety (90) days of the Pretrial Conference.

_______________________ DATE

____________________________ UNITED STATES DISTRICT JUDGE

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EXHIBIT F

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EXHIBIT G

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EXHIBIT H

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EXHIBIT I

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE IOVATE HEALTH SCIENCES U.S.A., INC., et al., Plaintiffs, v. WELLNX LIFE SCIENCES INC., et al., Defendants. : : : : : : : : : : :

C.A. No. 07-286-JJF

NOTICE OF MOTION TO: Mary B. Graham, Esq. Rodger D. Smith, Esq. James W. Parrett, Jr., Esq. MORRIS, NICHOLS, ARSHT & TUNNELL LLP 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 Roger A. Colaizzi, Esq. Jeffrey A. Dunn, Esq. VENABLE LLP 575 7th Street, NW Washington, DC 20004-1601 Tamany Vinson Bentz, Esq. VENABLE LLP 2049 Century Park East Suite 2100 Los Angeles, CA 90067

PLEASE TAKE NOTICE that Plaintiffs Iovate Health Sciences U.S.A., Inc. and Iovate T&P, Inc., will present "Iovate's Motion for Reconsideration of the Court's March 25, 2008 Order (D.I. 56)" to the Court on Friday, May 9, 2008 at 10:00 a.m., or as soon thereafter as is convenient to the Court.

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YOUNG CONAWAY STARGATT & TAYLOR LLP

/s/ Karen L. Pascale
April 4, 2008 __________________________________________ Josy W. Ingersoll (No. 1088) John W. Shaw (No. 3362) Karen L. Pascale (No. 2903) Karen E. Keller (No. 4489) The Brandywine Building 1000 West St., 17th Floor P.O. Box 391 Wilmington, Delaware 19899-0391 Telephone: 302-571-6600 [email protected] Attorneys for Plaintiffs

OF COUNSEL: Richard L. DeLucia Howard J. Shire Jerry Canada KENYON & KENYON LLP One Broadway New York, NY 10004 (212) 425-7200

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : : : : : : : :

IOVATE HEALTH SCIENCES U.S.A., INC., et al., Plaintiffs, v. WELLNX LIFE SCIENCES INC., et al., Defendants.

C.A. No. 07-286-JJF

ORDER IT IS HEREBY ORDERED this ______ day of ____________, 2008, that the Court's March 25, 2008 Order (D.I. 56) is VACATED. The parties are to complete jurisdictional discovery, and to submit their answering and reply briefs on the Individual Defendants' motion to dismiss (D.I. 13), on the terms and in accordance with the schedule set forth in the Court's February 28, 2008 Order (D.I. 50).

________________________________ UNITED STATES DISTRICT JUDGE

DB02:6701472.1

066372.1001