EON Corp. IP Holdings LLC v. FLO TV Incorporated et al
MEMORANDUM ORDER Denying 852 MOTION for Single Trial, and Denying 878 MOTION to Strike 877 Reply Brief (see Memorandum Order for trial and pretrial schedules). Signed by Judge Richard G. Andrews on 1/30/2014. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EON CORP. IP HOLDINGS LLC,
Civil Action No. 10-812-RGA
FLO TV INCORPORATED, et al.,
I have Plaintiffs motion for a single trial. (D.I. 852). In my opinion, the Defendants,
who include various competitors (e.g., Motorola, HTC, and LG), were not properly joined in the
first place. In any event, I believe having a single joint trial would not only be completely unfair
and prejudicial to the Defendants, and sufficient reason to sever the case into various smaller
units, but it would also be reversible error. Thus, Plaintiffs motion is DENIED.
I have Defendants' motion to strike Plaintiffs reply brief. (D.I. 878). While I understand
Defendants' request, as the reply brief does bring up new arguments, I am going to DENY it as I
am not impressed with Plaintiffs new arguments.
I had a conference to discuss scheduling on January 8, 2014. Plaintiff understood this,
and on January 6 had stated that it wanted to discuss "the order of trial of the defendants and the
issues to be tried." (D.I. 846 at 1). When the subject of a joint invalidity trial came up, which
surely was anticipated by Plaintiff, we had the following colloquy: "THE COURT: So, basically,
if each defendant gets their own trial, would you see nine infringement and invalidity trials?
LEAD COUNSEL FOR PLAINTIFF: If we were going to have nine different trials, and we were
going to try the same issues over and over again, then why not try all the same issues over and
over again?" (D.I. 868 at 18-19). Defendants requested nine separate trials. In Plaintiffs Reply
Brief, it stated the following: "Accordingly, if this Court elects to hold multiple infringement
trials, the Court should sever the invalidity defenses into a separate trial under FED. R. C1v. P.
42(b). The jury will benefit from having a complicated matter separated into less confusing
discrete issues." (D.I. 877 at 3). 1
One invalidity trial would make a certain amount of sense. When I had everyone together
to discuss it, however, no one wanted it. In my opinion, Plaintiff has waived that request. It is
also not obvious that it is the best choice. I do not think there is an obvious best choice how to
conduct this litigation. I do think the fairest way to decide infringement is to have nine separate
trials. The conduct of each defendant can be judged on its own merits, and tried as its counsel
thinks best, rather than as a compromise with counsel representing other defendants. Prejudice to
the defendants is at a minimum in such a setting. There is some prejudice to the Plaintiff in that
it will be less efficient than a joint trial, but I do not think that is unfair prejudice. There is a
certain balance to having infringement and invalidity as disputed between two parties tried in the
same case, although that it is certainly not a requirement. I also note that, based on my
experience, albeit in a different area of the law, the chances of more than three defendants
actually going to trial is just about nil. If Plaintiff is winning, the remaining defendants will
likely settle. If Plaintiff is losing, it will likely fold against the remaining defendants. Thus, I
believe (paradoxically) that scheduling nine one-week trials, rather than one three-week trial, will
conserve judicial (and party) resources. The cases that are tried will be in smaller and more
easily digestible bites, and therefore will enhance juror comprehension. See generally Ciena
It's nice to be consistent. One trial of nine defendants on both infringement and
invalidity is manageable. A trial against one defendant on infringement and invalidity should be
"separated into less confusing discrete issues."
Corp. v. Corvis Corp., 210 F.R.D. 519, 520 (D. Del. 2002) (discussing issues to be considered
relative to bifurcation under Fed. R. Civ. P. 42(b)).
Defendants have suggested the first two defendants be Motorola and HTC. I note that
HTC's counsel has suggested a trial date of the week following the first trial, which EON's
counsel opposes. I believe it is not in the interest of justice to make EON go to trial on
consecutive weeks, as it will need time to prepare for each defendant, and the parties ought to
have an opportunity to evaluate the previous trial's results.
Thus, the trials are scheduled, for five days each, with a pretrial conference shortly before
trial, as follows:
Motorola: Trial, March 24, 2014 at 9:30a.m.; Pretrial conference as currently scheduled;
HTC: Trial, April 7, 2014 at 9:30a.m.; Pretrial conference on April1, 2014, at 8:30a.m.
LG: Trial, April28, 2014 at 9:30a.m.; Pretrial conference on April17, 2014, at 8:30a.m.
Flo TV: Trial, May 12, 2014 at 9:30a.m.; Pretrial conference on May 6, 2014, at 8:30
MobiTV: Trial, June 2, 2014 at 9:30a.m.; Pretrial conference on May 23, 2014, at 2:00
U.S. Cellular: Trial, June 16, 2014 at 9:30a.m.; Pretrial conference on June 10, 2014, at
Sprint: Trial, July 7, 2014 at 9:30a.m.; Pretrial conference on July 2, 2014, at 8:30a.m.
Qualcomm: Trial, August 18, 2014 at 9:30a.m.; Pretrial conference on July 3, 2014, at
Simplexity: Trial, September 8, 2014 at 9:30a.m.; Pretrial conference on September 2,
2014, at 8:30a.m.
IT IS SO ORDERED this ~day of January 2014.
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