Porritt et al v. Erico International Corporation

Filing 36

MEMORANDUM AND ORDER STAYING CASE. The Court ORDERS Erico to file a report on the status of the Wham-O appeal during the month of September every year and within 30 days after the Federal Circuit issues its mandate. Signed by Judge J. Phil Gilbert on 6/16/2011. (dka, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
CHRISTINA PORRITT and MARK HESS,
Plaintiffs,
v.

Case No. 10-cv-545-JPG-SCW

ERICO INTERNATIONAL CORPORATION,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on its own initiative for purposes of case
management. Specifically, the Court wishes to stay these proceedings in light of recent and
impending judicial developments. Indeed, “it is within the court’s discretion to issue an order to
stay proceedings sua sponte.” Rogers v. Ameriprise Fin. Servs., Inc., No. 07 C 6876, 2008 WL
4826262, at *2 (N.D. Ill. Nov. 4, 2008).
Recently, there have been several interesting judicial developments in the arena of qui
tam actions for false patent marking. On July 7, 2011, the Federal Circuit Court of Appeals,
whose decisions are binding on this Court, is set to hear oral arguments in United States ex rel.
FLFMC, LLC v. Wham-O, Inc., No. 2011-1067 (Fed. Cir. filed Nov. 16, 2010). The Wham-O
District Court dismissed a false patent marking action for lack of standing and, by implication,
subject matter jurisdiction because the plaintiff did not suffer injury-in-fact. United States ex rel.
FLFMC, LLC v. Wham-O, Inc., No. 10-cv-435, 2010 WL 3156162, at *7-9 (W.D. Pa. Aug. 3,
2010). The Federal Circuit’s looming opinion in Wham-O may require the immediate dismissal
of this action and, in any event, will provide tremendous guidance as to False Claims Act suits,
which have flooded the country’s district courts in recent months. And, the Court can think of no
notable prejudice or hardship that Plaintiffs will suffer due to a temporary stay of this action.

For these reasons, a stay is certainly warranted. Kircher v. Putnam Funds Trust, Nos. 06-cv939-DRH, 06-cv-1001-DRH, 2007 WL 1532116, at *2 (S.D. Ill. May 24, 2007) (“The decision
to issue a [sua sponte] stay rests within the Court’s discretion, subject to the requirement that
such discretion be exercised in a manner that is consistent with equity and judicial economy.”).
In addition, the Court notes that appellate briefing will be completed in September in
Unique Product Solutions, Ltd. v. Hy-Grade Valve, Inc., No. 2011-1254 (Fed. Cir. filed Mar.
2011). The Unique Product District Court ruled that the qui tam provision of the false patent
marking statute is unconstitutional. Unique Prod. Solutions, Ltd. v. Hy-Grade Valve, Inc., No.
10-cv-1912, 2011 WL 924341, at *2-4 (N.D. Ohio Mar. 14, 2011). Of course, if the Federal
Circuit affirms this holding, it may well prove dispositive of the merits of this case. And, even if
it does not so rule, the Federal Circuit’s decision will act as binding precedent on this Court.
Being fully advised of the premises, the Court finds that considerations of judicial
economy and potential prejudice to Defendant Erico International Corporation (“Erico”) dictate
that this matter should be stayed. Accordingly, the Court hereby STAYS all proceedings in this
litigation until the Federal Circuit issues its opinion and mandate in Wham-O. Further, the Court
ORDERS Erico to file a report on the status of the Wham-O appeal during the month of
September every year and within 30 days after the Federal Circuit issues its mandate.
IT IS SO ORDERED.
DATED: June 16, 2011
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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