Polylok Inc et al v. Bear Onsite, LLC et al

Filing 142

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay re 140 Brief and 141 Memorandum. Stay on discovery is lifted. Telephonic Status Conference set for 9/1/2015 10:30 AM before Magistrate Judge Colin H. Lindsay. Parties to confer and submit joint proposed amended scheduling order no later than 5 day before telephonic status conference. cc: counsel (JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-00535-DJH

POLYLOK, INC., et al.,
Plaintiffs,
v.
BEAR ONSITE, LLC, et al., ,

Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the order entered by U.S. Magistrate Judge Lindsay on
June, 2, 2015, that both Plaintiffs Polylok, Inc. and Peter W. Gavin Spray Trust (“Plaintiffs”) and
Defendants Promold and Tool, LLC, Michael J. Hornback, and Premier Promold & Tool, Inc.
(“Defendants”)1 submit simultaneous briefs regarding a continued stay of discovery pending a
Markman2 ruling. (DN 137.) Both briefs were timely filed on June 12, 2015. (DN 140, 141.)
Based on the arguments set forth in those briefs, Defendants’ request for a continued stay of
discovery pending a Markman ruling is DENIED.
I. Discussion
Defendants argue that discovery should continue to be stayed pending a Markman ruling.
They first argue there is no need to revisit this matter because this Court has already granted a
stay on discovery pending a Markman ruling in a Court order (“Order”) entered on October 31,
2014. (DN 127.) They additionally assert since Plaintiffs did not file a timely motion for
reconsideration of the Order, they are not permitted to do so now, over seven months later.
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Bear Onsite, LLC, is also a defendant in this matter, but is not represented or actively defending itself at this time.
(See DN 138.)
2

Markman v. Westerview Instruments, Inc., 517 U.S. 370 (1996).

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Furthermore, Defendants claim that a stay on discovery is necessary because further
claim construction is needed to define and narrow the scope of discovery.

They believe

additional claim construction is necessary to address several remaining claim terms that are still
in dispute after the denial (DN 120) of Defendants’ motion for summary judgement. (DN 81.)
Defendants further argue this claim construction has the potential to significantly impact the
question of patent infringement in this case, therefore potentially eliminating the need for some
discovery. Although Defendants assert this, they do not support their argument with any specific
examples of how furthering a stay on discovery could potentially eliminate or even narrow
discovery.
Plaintiffs persuasively argue the stay on discovery pending a Markman ruling should be
lifted. First, they argue the scope of discovery will not materially change regardless of how the
Court construes the remaining claim terms. Plaintiffs contend that if the remaining disputed
claim terms are actually as critical as Defendants claim they now are, they would have “served as
the bases of Defendants’ prior motions for stay and would have been the focus of their summary
judgment motion.” (DN 141.) Furthermore, Defendants have not identified a deposition that
would be affected in whole or even in part, and even if they could, only that deposition would be
stayed, not the entirety of discovery. (DN 141.)
Second, Plaintiffs contend Defendants have failed to meet their burden of showing “good
cause” for a stay under Federal Rule of Civil Procedure 26(c)(1). Fed. R. Civ. P.26(c)(1).
Furthermore, “the Federal Rules of Civil Procedure do not provide for automatic or blanket stays
of discovery when a potentially dispositive motion is pending.” Mlejnecky v. Olympus Imaging
Am., Inc., No. 2:10-CV-02630, 2011 WL 489743, at *6 (E.D. Cal. Feb. 7, 2011). Therefore,
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here, where a dispositive motion is not even pending, a blanket stay of discovery is
inappropriate.
II. Conclusion
The Court finds that good reason exists to lift the stay of discovery pending a Markman
ruling. Defendants cannot show good cause for continued stay of discovery under Rule 26(c)(1).
Additionally, Defendants have not pointed to—and therefore presumably cannot point to—
specific examples of how continuing the stay would reduce, or even impact, any aspect of
discovery. Furthermore, discovery has been stayed for nearly a year, during which time the case
has not advanced toward a resolution. (DN 115, 127.)
Accordingly, IT IS HEREBY ORDERED that the stay on discovery is lifted.
IT IS FURTHER ORDERED that this case is set for a telephonic status conference on
September 1, 2015 at 10:30 a.m. Counsel for the parties shall connect to the conference by
dialing the toll-free number 1-888-808-6929 and entering the Access Code: 2773744#.
IT IS FURTHER ORDERED that the parties should confer and submit a joint proposed
amended scheduling order no later than five (5) days before the telephonic status conference.

cc: Counsel of record

Colin Lindsay, MagistrateJudge
United States District Court

August 5, 2015

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