TQ Delta LLC v. Pace Americas Inc.

Filing 340

MEMORANDUM ORDER Denying Broadcom's request for attorney's fees. Signed by Judge Richard G. Andrews on 8/9/2017. Associated Cases: 1:13-cv-01835-RGA, 1:13-cv-01836-RGA, 1:13-cv-02013-RGA, 1:14-cv-00954-RGA, 1:15-cv-00121-RGA(nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TQ DELTA LLC,
Plaintiff,
No. 13-cv-1835 (RGA)

V.

2WIRE INC.,
Defendant.
TQ DELTA LLC,
Plaintiff,
No. 13-cv-1836 (RGA)

v.
ZHONE TECHNOLOGIES INC.,
Defendant.
TQ DELTA LLC,
Plaintiff,
V.

No. 13-cv-2013 (RGA)

ZYXEL COMMUNICATIONS INC. and ZYXEL
COMMUNICATIONS CORP.,
Defendants.

TQ DELTA LLC,
Plaintiff,
No. 14-cv-954 (RGA)
No. 15-cv-121 (RGA)

v.
ADTRAN, INC.,

Defendant.

MEMORANDUM ORDER

On June 13, I denied Plaintiff TQ Delta's motion to compel nonparty
Broadcom to comply with a subpoena because I found jurisdiction in Delaware was
improper under Federal Rules of Civil Procedure 45 and 37. (D.I. 322). 1 Rule 45
requires a part to move to compel in the "district where compliance is required" and
Rule 37 requires orders against nonparties to "be made in the court where the
discovery is or will be taken." Fed. R. Civ. P. 45(d)(2)(B)(i), 37(a)(2). Broadcom is not
a party, is not located in Delaware, and the documents sought by the subpoena are
not located here either.
Broadcom requested attorney's fees (D.I. 315 at 12), and I directed the parties
to brief the issue. Having considered those papers (D.I. 327, 328, 336), I am
DENYING Broadcom's request.
Rule 37 allows and generally requires me to award fees to the prevailing
party. It dictates:
If the motion is denied, the court ... must, after giving an opportunity to be
heard, require the movant, the attorney filing the motion, or both to pay the
party or deponent who opposed the motion its reasonable expenses incurred
1

All citations are to the docket in Civil Action No. 13-1835 unless otherwise noted.

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in opposing the motion, including attorney's fees. But the court must not
order this payment if the motion was substantially justified or other
circumstances make an award of expenses unjust.
Rule 37(a)(5)(B).2
I am denying Broadcom's request because I find Plaintiffs motion was
"substantially justified" for two reasons. First, Broadcom had already actively
participated in this case in this court. (See, e.g., D.I. 104, 106). Second, Plaintiffs
counsel points to my resolution of a motion to compel in Delaware Display Grp. LLC

v. Lenovo Grp. Ltd., 2016 WL 720977 (D. Del. 2016). In that case, which Plaintiffs
counsel was a part of, I resolved a motion to compel involving a non-party over
jurisdictional objections similar to those here. (See id., No. 13-2108 D.I. 136 at 1215). 3 Thus, I understand why Plaintiff might have expected the same treatment
here. I find Plaintiffs decision to file the motion to compel in this Court
substantially justified and deny Broadcom's request for attorney's fees.
IT IS SO ORDERED this

j_ day of August 2017.

~~.~
United States District Judge

2

Broadcom also argues I have authority to award fees under Rule 45(d)(l) but that Rule empowers
the "district where compliance is required" to award fees. As has been established, that is not the
District of Delaware.
3 I say, "similar," because they were not the same. There, both of the non-parties were Delaware
corporations, and at least one of the subpoenas designated this District as the place of compliance.
Nevertheless, I did (erroneously) skip over the jurisdictional objections in an attempt to reach a
practical and expeditious "work-around." No similar "work-around" existed here.