Two Moms and a Toy, LLC v. International Playthings, LLC

Filing 157

ORDER: denying 152 Motion to Stay insofar as it seeks a stay of the expert phase of the case, by Magistrate Judge Boyd N. Boland on 1/17/12.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 10-cv-02271-PAB-BNB
TWO MOMS AND A TOY, LLC, a Colorado limited liability company,
Plaintiff,
v.
INTERNATIONAL PLAYTHINGS, LLC, a Delaware limited liability company,
GOLOS WEISMAN DESIGN LTD., an Israel partnership, and
YOOKIDOO LTD., an Israeli partnership,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Plaintiff’s Emergency Motion to Reset Markman Hearing and
Stay Expert Phase of Case Pending the Court’s Ruling on Claim Construction [Doc. # 152,
filed 12/22/2011] (the “Motion”). The Motion has been referred to me insofar as it requests a
stay of the expert phase of the case. See Doc. # 153.1 To that extend, the Motion is DENIED.
I agree with defendant International Playthings, LLC, that the Motion is a thinly veiled
request for reconsideration of my two previous rulings denying motions to extend or otherwise
modify the case schedule. See Order [Doc. # 142] and Order [Doc. # 151]. The bases for
plaintiff’s request to stay the expert phase of the case are that “expert reports and expert
discovery in a patent infringement case is extremely expensive” and that a ruling on claim
construction “could end this case and at the very least will provide the parties with needed
guidance and information for assessing the patent’s strength which will hopefully result in a

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The district judge has retained to himself the issue of resetting the Markman hearing.

settlement of the case.” Motion [Doc. # 152] at ¶4. All of the arguments about expense and
efficiency could have been made in connection with the parties’ previous Joint Motion to Amend
Scheduling Order [Doc. # 127] but were not. See Servants of the Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000)(noting that a motion for reconsideration is not appropriate when the
movant seeks to revisit issues already addressed or to advance arguments that could have been
raised in prior briefing). In addition, the patent-in-suit concerns a bath toy; the invention is not
technically sophisticated; and the plaintiff has failed to identify the claims that must be construed
and why construction of claims in this straight-forward invention would materially impact expert
preparation and discovery.
This is an old case, having been filed approximately 15 months ago. It has been marred
by delays, many caused by the litigation tactics of the plaintiff. Sufficient time has been allowed
for the preparation of the case. See Order [Doc. # 142] at pp. 3-4.
IT IS ORDERED that the Motion [Doc. # 152], insofar as it seeks a stay of the expert
phase of the case, is DENIED.
Dated January 17, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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