Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE HUNTLEY L.L.C., Plaintiff, v. MONTEREY MUSHROOMS INC., Defendant. ) ) ) ) ) ) ) ) ) )

C.A. No. 08-377 (GMS)

DEFENDANT MONTEREY MUSHROOMS' OPENING BRIEF IN SUPPORT OF ITS RULE 41(d) MOTION FOR COSTS OF PREVIOUS ACTION AND STAY OF CURRENT ACTION PENDING PLAINTIFF'S COMPLIANCE

OF COUNSEL: Ricardo Rodriguez Reuben H. Chen COOLEY GODWARD KRONISH LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 (650) 843-5000 July 28, 2008

MORRIS, NICHOLS, ARSHT & TUNNELL LLP Thomas C. Grimm (#1098) Benjamin J. Schladweiler (#4601) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 [email protected] Attorneys for Defendant Monterey Mushrooms, Inc.

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TABLE OF CONTENTS PAGE I. II. III. IV. NATURE AND STAGE OF THE PROCEEDING........................................................... 1 SUMMARY OF ARGUMENT ......................................................................................... 1 STATEMENT OF FACTS ................................................................................................ 2 ARGUMENT..................................................................................................................... 4 A. B. Legal Standard ....................................................................................................... 4 Costs of the Previous Action and a Stay of the Current Action Are Justified .................................................................................................................. 5 1. Huntley should be required to pay costs since Huntley's second complaint includes essentially the same claim as its first complaint, and the current action should be stayed until Huntley has complied......... 5 Attorney's fees are recoverable under Rule 41(d) and are justified to prevent prejudice to Monterey Mushrooms........................................... 7

2. V.

CONCLUSION.................................................................................................................. 9

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TABLE OF CITATIONS PAGE CASES Activox, Inc. v. Envirotech Corp. 532 F. Supp. 248 (S.D.N.Y. 1981).............................................................................................. 5 Behrle v. Olshansky 139 F.R.D. 370 (W.D. Ark. 1991) .......................................................................................... 1, 8 Cadle Co. v. Beury 242 F.R.D. 695 (S.D. Ga. 2007) ......................................................................................... 1, 7, 8 Esquivel v. Arau 913 F. Supp. 1382 (C.D. Cal. 1996) .................................................................................. passim Evans v. Safeway Stores, Inc. 623 F.2d 121 (8th Cir. 1980) .................................................................................................. 1, 7 Loubier v. Modern Acoustics, Inc., 178 F.R.D. 17 (D. Conn. 1998)........................................................................................... 1, 5, 7 Meredith v. Stovall, 216 F.3d 1087, 2000 WL 807355 (10th Cir. 2000) ............................................................ 1, 4, 7 Pittsburgh Jaycees v. U.S. Jaycees 89 F.R.D. 454 (W.D. Pa. 1981) .................................................................................................. 8 Whitehead v. Miller Brewing Co. 126 F.R.D. 581 (M.D. Ga. 1989) ........................................................................................ 1, 6, 8 Zucker v. Katz 708 F. Supp. 525 (S.D.N.Y. 1989).............................................................................................. 5 Zucker v. Katz No. 87 Civ. 7595 (SWK), 1990 WL 20171 (S.D.N.Y. Feb. 21, 1990)................................... 1, 8 STATUTES D. Del. L.R. 7.1.2(b) ....................................................................................................................... 6 Federal Rule of Civil Procedure 12(b)(1) ....................................................................................... 2 Federal Rule of Civil Procedure 41 ....................................................................................... passim Federal Rule of Civil Procedure 54(d)(1) ....................................................................................... 7 TREATISES 8-41 Moore's Federal Practice ­ Civil § 41.70[6] ..................................................................... 1, 7

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I.

NATURE AND STAGE OF THE PROCEEDING Eleven months after voluntarily dismissing its first suit,1 Plaintiff Huntley L.L.C.

("Huntley") has filed a second Complaint against Defendant Monterey Mushrooms, Inc. ("Monterey Mushrooms"). (Complaint, D.I. 1.) Monterey Mushrooms submits this brief in support of its motion for costs of the previous action and for a stay of the current action pending Huntley's compliance. (Rule 41(d) Motion for Costs and Stay.) II. SUMMARY OF ARGUMENT Pursuant to Federal Rule of Civil Procedure 41(d), if a plaintiff who has dismissed an action commences a second action based upon or including the same claim against the same defendant, the Court may order the plaintiff to pay costs incurred by the defendant in defending the previous action and may stay the current action until the plaintiff has complied with the order. See Fed. R. Civ. P. 41(d). "The costs available under Rule 41(d) have generally been held to include attorney's fees . . . ." 8-41 Moore's Federal Practice ­ Civil § 41.70[6]; see also Meredith v. Stovall, 216 F.3d 1087, 2000 WL 807355, at *1 (10th Cir. 2000); Evans v. Safeway Stores, Inc, 623 F.2d 121, 121-22 (8th Cir. 1980); Cadle Co. v. Beury, 242 F.R.D. 695, 698-700 (S.D. Ga. 2007); Loubier v. Modern Acoustics, Inc., 178 F.R.D. 17, 23 (D. Conn. 1998); Esquivel v. Arau, 913 F. Supp. 1382, 1388-92 (C.D. Cal. 1996); Behrle v. Olshansky, 139 F.R.D. 370, 373-76 (W.D. Ark. 1991); Zucker v. Katz, No. 87 Civ. 7595 (SWK), 1990 WL 20171, at *1-2 (S.D.N.Y. Feb. 21, 1990); Whitehead v. Miller Brewing Co., 126 F.R.D. 581, 582 (M.D. Ga. 1989).

1

On July 31, 2007, Huntley filed a "Motion of Withdrawal of Complaint," stating that "[n]o answer to the complaint has been filed." (D.I. 10, Huntley & Associates, LLC v. Monterey Mushrooms Inc., C.A. No. 07-086 (GMS) ("Huntley I").) Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), "the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment . . . ." Fed. R. Civ. P. 41(a)(1)(A)(i). -1-

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Here, eleven months after voluntarily dismissing its first suit, Huntley has filed a second Complaint against Monterey Mushrooms that includes essentially the same claim as in Huntley's first complaint. (Compare Complaint ¶¶ 9-12, D.I. 1, Huntley I with Complaint ¶¶ 13, 15-17, D.I. 1, Huntley II.) Huntley can provide no persuasive justification for voluntarily dismissing its first suit after Monterey Mushrooms spent time, resources, and money in filing a motion to dismiss and after the Court had ordered Huntley to file an opposition. (07/18/07 Order, D.I. 9, Huntley I.) Indeed, prior to dismissing its complaint, Huntley informed counsel for Monterey Mushrooms that "[Huntley had] reviewed [Monterey Mushrooms'] motion to dismiss and rather than argue or try to make some new law [was] willing to let [the suit] drop at this point." (Ex. 1 attached hereto.) Substantial costs incurred by Monterey Mushrooms in defending the first suit either have been wasted or will need to be duplicated in the second suit. To prevent further prejudice to Monterey Mushrooms and to deter Huntley's conduct, Monterey Mushrooms respectfully requests that the Court order Huntley to pay the reasonable costs of the previous action and to stay the current action until Huntley has complied with the order. III. STATEMENT OF FACTS On February 16, 2007, Huntley filed its first suit against Monterey Mushrooms, Huntley & Associates, L.L.C. v. Monterey Mushrooms, Inc., C.A. No. 07-086 (GMS) ("Huntley I"). In response to Huntley's complaint, on June 13, 2007, Monterey Mushrooms filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). Huntley's opposition to this motion was due on July 2, 2007, but Huntley failed to file a timely opposition. Instead, on July 13, 2007, Huntley called counsel for Monterey Mushrooms and left a message stating: I have reviewed your motion to dismiss and rather than argue or try to make some new law I'm willing to let this drop at this point. Please let me know whether it would be more convenient for you whether I simply did not oppose the motion or since an answer to the complaint has not been filed whether it would be easier if I simply withdrew the complaint. -2-

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(Ex. 1.) Yet, on July 17, 2007, Huntley sent a letter to counsel for Monterey Mushrooms suggesting that the parties enter into a settlement agreement whereby Monterey Mushrooms would pay Huntley $82,341.73 in exchange for dismissing the suit. (Ex. 2 attached hereto.) On July 18, 2007, the Court issued its Order stating that Huntley's opposition to Monterey Mushrooms' motion to dismiss was due July 2, 2007 and ordering Huntley to file an opposition by August 1, 2007. (See Order, D.I. 9, Huntley I.) Rather than file an opposition, Huntley filed a "Motion of Withdrawal of Complaint" on July 31, 2007, stating that "[n]o answer to the complaint has been filed." (D.I. 10, Huntley I.)2 Ten months later, on May 29, 2008, Huntley sent a letter to counsel for Monterey Mushrooms stating that Huntley was prepared to renew his complaint if Monterey Mushrooms did not pay Huntley $82,341.73 allegedly owed by EPL Technologies, Inc ("EPL") to Huntley. (Ex. 3 attached hereto.) Counsel for Monterey Mushrooms subsequently corresponded with Huntley and requested that Huntley provide the legal basis for its claim that Monterey Mushrooms is liable for the fees and other charges allegedly owed by EPL to Huntley, including citation to relevant authority. Huntley responded that "citations that support our position. . . . will, of course, be provided to the Court at the appropriate time" and further stated that "your research capabilities and those of your local counsel vastly exceed ours, and would probably produce the most complete picture for you and your clients." (Exs. 4-7 attached hereto.) On June 24, 2008, Huntley filed its second Complaint against Monterey Mushrooms. The Complaint includes a nearly identical cause of action for patent infringement that was the sole cause of action in Huntley's first suit. (Compare Complaint ¶¶ 9-12, D.I. 1, Huntley I with
2

Under Federal Rule of Civil Procedure 41(a)(1)(A)(i), "the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment . . . ." Fed. R. Civ. P. 41(a)(1)(A)(i). -3-

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Complaint ¶¶ 13, 15-17, D.I. 1, Huntley II.) Additional facts are set forth in the Argument section, infra, as appropriate. IV. ARGUMENT A. Legal Standard. Federal Rule of Civil Procedure 41(d) states: If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. Fed. R. Civ. P. 41(d). The decision whether to impose costs pursuant to Rule 41(d) is within the broad discretion of the Court. See Meredith, 216 F.3d 1087, 2000 WL 807355 at *1 ("Under the language of Rule 41(d), the decision whether to impose costs and attorney's fees is within the discretion of the trial court. We therefore review the district court's imposition of costs and attorney's fees in this case for abuse of discretion . . . . [W]e find no abuse of discretion in this case . . .") (internal citations omitted); Esquivel, 913 F. Supp. at 1386 ("The language of Rule 41(d) clearly indicates that it conveys `broad discretion' on federal courts to order stays and payment of costs . . ."). Rule 41(d) applies to a new action "based on or including the same claim against the same defendant" as a previous action. Fed. R. Civ. P. 41(d). The inclusion of new legal claims in the second action will not defeat an award of costs. See Esquivel, 913 F. Supp. at 1387 (finding Rule 41(d) satisfied where second suit incorporated all the claims of the previous action, but included additional claims). Additionally, courts have stated that there is no requirement that the defendant show bad faith by the plaintiff in voluntarily dismissing the first action. Instead, courts have indicated that so long as the plaintiff's conduct satisfies the requirement of Rule 41(d) and the

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plaintiff has not shown persuasive justification for voluntarily dismissing the first action, costs may be awarded to prevent prejudice to the defendant. As stated by the court in Esquivel: [T]here is no requirement of a showing of subjective `bad faith' either in the language of Rule 41(d) or in the relevant case law . . . . [T]he court should simply assess whether a plaintiff's conduct satisfies the requirements of Rule 41(d), and whether the circumstances of the case warrant an award of costs to prevent prejudice to the defendant. Here [the plaintiff] has failed to present a persuasive explanation . . . and it is clear that defendants have incurred needless expenditures as a result. Esquivel, 913 F. Supp. at 1388; see also Loubier, 178 F.R.D. at 22 ("There is no requirement in Rule 41(d) or the relevant case law that a defendant must show bad faith on the part of the plaintiff in order to recover costs."); Zucker v. Katz, 708 F. Supp. 525, 539 (S.D.N.Y. 1989) ("Plaintiff does not argue that it had any persuasive justification or good reason for voluntarily dismissing the first action, then filing a nearly identical second action . . . . This action falls within the scope of Rule 41(d) and the Court finds [] no adequate justification for the dismissal that would support denial of this motion [for costs]."); cf. Activox, Inc. v. Envirotech Corp., 532 F. Supp. 248, 251 (S.D.N.Y. 1981) ("Whatever the strategy of [the plaintiff] may have been in dismissing its prior action, by virtue of Fed. R. Civ. P. 41(d) it is now subject to `the payment of costs of the action previously dismissed.'"). B. Costs of the Previous Action and a Stay of the Current Action Are Justified. 1. Huntley should be required to pay costs since Huntley's second complaint includes essentially the same claim as its first complaint, and the current action should be stayed until Huntley has complied.

The requirements of Rule 41(d) are satisfied since the first cause of action in the current Complaint is nearly identical to the sole cause of action in the original complaint, and both complaints are against the same defendant, Monterey Mushrooms. (Compare Complaint ¶¶ 9-12, D.I. 1, Huntley I with Complaint ¶¶ 13, 15-17, D.I. 1, Huntley II.) Further, the additional causes of action in the current Complaint are based on essentially the same alleged

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operative facts as the original complaint, mainly Huntley's allegations that it is the owner of an equitable interest in United States Patent No. 6,500,476 and that it recorded its interest with the United States Patent and Trademark Office. See Esquivel, 913 F. Supp. at 1387 (although new claims were included in the second action, the court found "the operative facts alleged [were] essentially the same"); see also Whitehead, 126 F.R.D. at 581-82 (granting the defendant's motion for costs where factual allegations in plaintiff's latest complaint were "practically identical" to earlier complaint even though the suits had different statutory bases). Huntley can proffer no good reason for withdrawing its first complaint after Monterey Mushrooms spent time, resources, and money defending against the first complaint, and then eleven months later bringing a second suit that includes the same claim as the first suit. Indeed, during the first suit, Huntley admitted to counsel for Monterey Mushrooms that "[Huntley had] reviewed [Monterey Mushrooms'] motion to dismiss and rather than argue or try to make some new law [was] willing to let [the suit] drop at this point." (Ex. 1.) Yet, in the second Complaint, Huntley includes the same claim for patent infringement that it indicated it had no legal basis to bring. If Huntley had support for its claim, it should have opposed Monterey Mushrooms' motion to dismiss within the time frames set by D. Del. L.R. 7.1.2(b) and subsequently by the Court. (See Order, D.I. 9, Huntley I.) Instead, by waiting eleven months and then bringing the same claim, substantial costs incurred by Monterey Mushrooms in defending the first suit either have been wasted or will need to be duplicated in the second suit. These costs include drafting and filing of counsel's notice of appearance, drafting and filing of counsel's motion for pro hac vice appearance; payment of pro hac vice fees; drafting, filing, and serving the motion to dismiss Huntley's first complaint; review of the Court's order directing Huntley to file its opposition; review of correspondence from Huntley; review of Huntley's

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proposed settlement agreement; review of Huntley's Motion to Withdraw; expenses for printing, copying, telephone calls, and faxes; and, given the length of time between the first and second suit, reexamination and key-citing of relevant cases.3 In total, Monterey Mushrooms respectfully requests the Court order Huntley to pay $27,831.63 of the total $43,761.06 incurred by Monterey Mushrooms in the previous action4 and to stay the current action until Huntley has complied with the Court's order. As discussed, infra, these costs appropriately include attorney's fees. 2. Attorney's fees are recoverable under Rule 41(d) and are justified to prevent prejudice to Monterey Mushrooms.

"The costs available under Rule 41(d) have generally been held to include attorney's fees." 8-41 Moore's Federal Practice ­ Civil § 41.70[6] (2008). While the Third Circuit has not directly addressed the question of whether attorney's fees are available under Rule 41(d), courts in other jurisdictions have held that it is within a court's discretion to award attorney's fees as part of the costs available under Rule 41(d) See Meredith, 216 F.3d 1087, 2000 WL 807355, at *1 (Tenth Circuit affirmed trial court's decision to award attorney's fees under Rule 41(d)); Evans, 623 F.2d at 121-22 (Eighth Circuit affirmed trial court's decision to award attorney's fees under Rule 41(a)(2) and (d)); Cadle, 242 F.R.D. at 698-700 (awarding attorney's fees, court for the Southern District of Georgia stated that "[h]ad the Rule drafters intended Rule 41(d) to not include attorney's fees, they would have deployed the same phrase ­ `costs other than attorneys' fees' utilized in Rule 54(d)(1)"); Loubier, 178 F.R.D. at 23 (court for the District of Connecticut awarded attorney's fees under Rule 41(d)); Esquivel, 913 F. Supp. at 1388-92 (court for the Central District of California awarded attorney's fees under Rule 41(d));
3

Monterey Mushrooms will submit itemized invoices detailing the costs expended in the first action for in camera review if and when deemed necessary by the Court. The invoices reflect information that is subject to the attorney-client privilege. Certain itemized costs have been discounted by 50% to reflect a portion of the work being useful in defending against Huntley's second complaint. -7-

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Behrle, 139 F.R.D. at 373-76 (court for the Western District of Arkansas awarded attorney's fees under Rule 41(d)); Zucker, 1990 WL 20171, at *1-2 (court for the Southern District of New York awarded attorney's fees under Rule 41(d)); Whitehead, 126 F.R.D. at 582 (court for the Middle District of Georgia awarded attorney's fees under Rule 41(d)). If attorney's fees are not included in costs under Rule 41(d), the rule would not be an adequate deterrent to the filing of duplicative lawsuits. As stated by the court in Behrle, if courts do not have the discretion to award attorney's fees as part of Rule 41(d)'s "costs," then the Rule "has no `teeth' and is useless. If that is the law, the provision of Rule 41(d) will not serve its intended purpose of encouraging parties not to act as plaintiff has acted in this case, to the substantial detriment of the defendant." Behrle, 139 F.R.D. at 373; see also Cadle, 242 F.R.D. at 698 ("To interpret `costs' in Rule 41(d) to exclude attorney's fees would render that Rule a dead letter, eliminating any deterrence it would provide"); Esquivel, 913 F. Supp. at 1391 ("[I]f Rule 41(d)'s purpose is to prevent undue prejudice to a defendant from unnecessary or vexatious litigation, there does not seem to be a clear reason why Rule 41(d) would provide only for an award of costs exclusive of attorneys' fees, since the typical defendant cannot adequately defend a case without incurring such fees."). Authority to award attorney's fees under Rule 41(a)(2) also supports the conclusion that attorney's fees are available under Rule 41(d). See Pittsburgh Jaycees v. U.S. Jaycees, 89 F.R.D. 454, 455 (W.D. Pa. 1981) (noting that the award of attorney's fees is "very common as a condition to a [Rule 41(a)(2)] voluntary dismissal"). As explained by the court in Esquivel, "it would be inconsistent to conclude that a court has discretion to condition Rule 41(a)(2) voluntary dismissal without prejudice on payment of attorneys' fees, but that a court does not have

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discretion [under Rule 41(d)] to exact the same payment from a plaintiff who has noticed a Rule 41(a)(1) dismissal in a previous case." Esquivel, 913 F. Supp. at 1391. Here, Monterey Mushrooms respectfully requests that the Court exercise its discretion to include attorney's fees in an award of costs because the prejudice caused by Huntley's conduct consists principally of attorney's fees incurred by Monterey Mushrooms in the previous action that either have been wasted or will need to be duplicated in the current action. Unless Huntley is required to pay attorney's fees, at least to the extent that the work associated with those fees cannot be used in the second action, Rule 41(d) would not provide an adequate deterrent against Huntley's improper conduct. V. CONCLUSION For the foregoing reasons, Monterey Mushrooms respectfully requests that the Court grant its Rule 41(d) Motion for Costs of the Previous Action and for Stay of the Current Action Pending Plaintiff's Compliance.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Thomas C. Grimm
___________________________________ Thomas C. Grimm (#1098) Benjamin J. Schladweiler (#4601) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 [email protected] Attorneys for Defendant Monterey Mushrooms Inc.

OF COUNSEL: Ricardo Rodriguez Reuben Chen COOLEY GODWARD KRONISH LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 (650) 843-5000 July 28, 2008
2428028

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CERTIFICATE OF SERVICE I hereby certify that on July 28, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF which will send notification of such filing to all registered participants. I also certify that on July 28, 2008, true and correct copies of the foregoing were caused to be served upon the following individuals in the manner indicated: BY E-MAIL & HAND-DELIVERY Donald W. Huntley HUNTLEY & ASSOCIATES 1105 North Market Street Wilmington, DE 19899-0948

/s/ Thomas C. Grimm
Thomas C. Grimm (#1098) [email protected]
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EXHIBIT 1

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EXHIBIT 2

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EXHIBIT 3

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EXHIBIT 4

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EXHIBIT 5

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EXHIBIT 6

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EXHIBIT 7

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