Karl Storz Endoscopy-America, Inc. v. Stryker, Inc. et al

Filing 331

ORDER DENYING MOTION FOR LEAVE TO AMEND INFRINGEMENT CONTENTIONS by Judge Alsup denying 323 Motion to Amend/Correct ; (whalc1, COURT STAFF) (Filed on 11/16/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KARL STORZ ENDOSCOPY-AMERICA, INC.,

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For the Northern District of California

United States District Court

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No. C 09-00355 WHA

Plaintiff,
v.

ORDER DENYING
MOTION FOR LEAVE TO
AMEND INFRINGEMENT
CONTENTIONS

STRYKER CORPORATION and STRYKER
COMMUNICATIONS, INC.,
Defendants.
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AND RELATED COUNTERCLAIMS
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INTRODUCTION
In this patent-infringement action involving surgical equipment management, plaintiff

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moves for leave to supplement its infringement contentions. For the following reasons, the

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motion is DENIED.

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STATEMENT
Karl Storz Endoscopy America, Inc. filed this action in the Western District of Tennessee

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four years ago in November 2007, accusing Stryker Corporation and Stryker

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Communications, Inc. of infringing three patents. The action was transferred to this district in

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January 2009; the present case number was assigned at that time. Pursuant to Patent Local

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Rules 3-1 and 3-2, plaintiff KSEA served its patent-infringement contentions in September 2009.

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The action was reassigned to the undersigned judge in January 2011. Non-expert discovery has

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now ended and the parties have exchanged expert reports under FRCP 26(a)(2). Defendants’

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motion for summary judgment is set to be heard next month (Dkt. No. 320). At this late hour,

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KSEA seeks leave to supplement its infringement contentions with potentially new products and

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theories of infringement (Opp. 1).

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KSEA has not submitted its proposed amendments for consideration. KSEA only

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provides a vague description that its supplemental infringement contentions “will include the

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model numbers of the Stryker devices as well as technical details which were not available to
KSEA until the recent discovery” (Br. 3).

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For the Northern District of California

United States District Court

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ANALYSIS

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Amendment of infringement contentions “may be made only by order of the Court upon a

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timely showing of good cause.” Pat. Loc. R. 3-6. “Good cause requires a showing of diligence,”

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and “[t]he burden is on the movant to establish diligence rather than on the opposing party to

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establish a lack of diligence.” O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355,

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1366 (Fed. Cir. 2006).

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1.

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KSEA did not exercise diligence in seeking to amend its infringement contentions. This

LACK OF DILIGENCE.

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action has been pending for four years. KSEA did not seek to depose any of defendants’

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technical witnesses until it served a Rule 30(b)(6) notice on September 15, 2011, nearly four

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years into the case and six months after the claim-construction order issued.

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KSEA asserts that it delayed because “Stryker has been slow to produce documents in this

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case, and produced highly relevant documents on a rolling basis as the deadline for fact discovery

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approached” (Br. 3). Stryker replies that it has “fully complied with discovery obligations” and

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that “KSEA sat on its rights” by not diligently seeking discovery in the four years this case has

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been pending (Opp. 3–4). This order agrees with Stryker. KSEA has not pointed to any

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indication that Stryker actually stonewalled against discovery relating to infringement. KSEA

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had ample opportunity to request discovery relief on this issue if Stryker was not forthcoming in
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discovery; but never did so. KSEA’s decision to wait until after document discovery was

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substantially complete before taking depositions is not good cause for delaying to amend its

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infringement contentions.

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2.

FAILURE TO SUBMIT PROPOSED AMENDMENTS.

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Moreover, KSEA has not submitted any proposed supplemental infringement contentions.

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Thus, it is impossible to evaluate how the new contentions differ from the initial contentions,

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what evidence supports the new contentions, when that evidence was discovered, and whether the

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changes would prejudice Stryker. KSEA has not met its burden of showing good cause for

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amendment at this eleventh hour.

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For the Northern District of California

United States District Court

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CONCLUSION
For the foregoing reasons, the motion by KSEA for leave to supplement its infringement
contentions is DENIED.

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IT IS SO ORDERED.

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Dated: November 16, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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