Conceivex, Inc. v. Rinovum Women's Health, Inc. et al

Filing 81

OPINION and ORDER Denying Plaintiff's 61 and 63 Motions to Amend and Denying Plaintiff's Renewed 62 Motion to Consolidate. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Conceivex, Inc.,
Plaintiff,
v.
Rinovum Women’s Health, Inc.,
Rinovum Women’s Health, LLC,
and The Stork IB2C, Inc.,

Case No. 16-11810
Judith E. Levy
United States District Judge
Mag. Judge Elizabeth A. Stafford

Defendants.
________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
AMEND [61, 63] AND DENYING PLAINTIFF’S RENEWED
MOTION TO CONSOLIDATE [62]
Before the Court are plaintiff Conceivex, Inc.’s motion to amend the
complaint (Dkts. 61, 63) and renewed motion to consolidate this case with
its copyright infringement suit against the same corporate entity
defendants, Case No. 15-cv-14239. (Dkt. 62.)
For the reasons set forth below, plaintiff’s motion to amend is
denied, and the renewed motion to consolidate is denied.

I.

Background
This case arises out of defendants’ alleged infringements of

plaintiff’s

patent

and

trademark

related

to

its

prescription

CONCEPTION KIT. Plaintiff alleges that defendants sold an over-thecounter version of its conception kit called The Stork OTC Home
Conception Device, and that the device infringed on plaintiff’s `493
patent. Further, the device allegedly infringed plaintiff’s trademark in
various ways, including through the use of CONCEPTION KIT as a meta
tag on defendant’s website and as a mark in online advertisements.
The complaint was filed on May 20, 2016, and plaintiff filed its first
amended complaint on June 8, 2016. (Dkts. 1, 10.) Discovery began after
the Court entered a scheduling order on October 13, 2016, and fact
discovery will continue until sixty days after the Court rules on the
patent claim construction issues. (Dkt. 49.) A claim construction hearing
is scheduled for October 25, 2017.
Plaintiff has now moved to file a second amended complaint (Dkts.
61, 63), and filed a renewed motion to consolidate this case with a
copyright infringement lawsuit against the same corporate entity
defendants, Case No. 15-cv-14239. The initial motion to consolidate was
2

denied without prejudice on September 29, 2016, with leave to refile in
four months. (Dkt. 51 at 29 (Hr’g Tr.).) Plaintiff refiled on March 29,
2016.
In the copyright infringement lawsuit, filed on December 3, 2015,
plaintiff alleges that defendants infringed the copyright of plaintiff’s
“Instructions for Use” document included with its CONCEPTION KIT by
using the same or substantially similar language in its instruction
manual. Plaintiff filed a first amended complaint in that case on March
2, 2016. The original scheduling order permitted the parties to amend
the pleadings until May 12, 2016.

(Case No. 15-cv-14239, Dkt. 16.)

Under the current scheduling order, the cutoff for fact discovery is
October 2, 2017, and expert discovery closes February 2, 2018. (Dkt. 36.)
II.

Legal Standard
Fed. R. Civ. P. 15(a)(2) instructs courts to “freely give leave [to

amend] when justice so requires.” But “[a] motion to amend a complaint
should be denied if the amendment is brought in bad faith, for dilatory
purposes, results in undue delay or prejudice to the opposing party, or
would be futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010)
(internal citations omitted). “Delay by itself is not sufficient reason to
3

deny a motion to amend.” Coe v. Bell, 161 F.3d 320, 342 (6th Cir. 1998)
(internal quotation omitted). But “[w]hen combined with [] prejudice . . .
there [may be] sufficient grounds . . . to deny the motion.” Id. “A proposed
amendment is futile if the amendment could not withstand a Rule
12(b)(6) motion to dismiss.” Riverview Health Inst., LLC v. Med. Mut. of
Ohio, 601 F.3d 505, 512 (6th Cir. 2010).
Fed. R. Civ. P. 42(a) governs consolidation of cases, and states that
“[i]f actions before the court involve a common question of law or fact, the
court may . . . consolidate the actions.” “Whether cases involving the
same factual and legal questions should be consolidated for trial is a
matter within the discretion of the trial court.” Cantrell v. GAF Corp.,
999 F.2d 1007, 1011 (6th Cir. 1993); see also Caspar v. Snyder, 77 F.
Supp. 3d 616, 645 (E.D. Mich. 2015) (citing Cantrell, 999 F.2d at 1011).
“Care must be taken that consolidation does not result in unavoidable
prejudice or unfair advantage,” and where conservation of judicial
resources would be “slight, the risk of prejudice to a party must be viewed
with even greater scrutiny.” Cantrell, 999 F.2d at 1011. Factors a court
must consider also include “the burden on parties, witnesses . . . , the
length of time required to conclude multiple suits . . . , and the relative
4

expense to all concerned of the single trial, multiple-trial alternatives.”
Id. (quoting Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495
(11th Cir. 1985)).
III. Analysis
Plaintiff seeks to amend the complaint to add Stephen Bollinger, an
executive officer of the corporate entity defendants, as a defendant.
Plaintiff also seeks to consolidate this case with its copyright case.
A. Motion to Amend
Defendants argue that plaintiff’s motion to amend should be denied
because (1) the Court lacks personal jurisdiction over Mr. Bollinger; (2)
this Court would be the improper venue over claims against Mr.
Bollinger; (3) plaintiff has failed to state a claim so the amendment would
be futile; and (4) the motion is brought with undue delay and in bad faith,
and would cause undue prejudice. (Dkt. 66.)
Personal Jurisdiction
In patent cases, a court has personal jurisdiction over an out-ofstate party if two conditions are met. “First, jurisdiction must exist under
the forum state’s long-arm statute.” Med. Sols., Inc. v. C Change Surgical
LLC, 541 F.3d 1136, 1139 (Fed. Cir. 2008) (citing Trintec Indus., Inc. v.
5

Pedre Promotional Prods., Inc., 395 F.3d 1275, 1279 (Fed. Cir. 2005)).
“Second, the assertion of personal jurisdiction must be consistent with
the limitations of the due process clause.”

Id.

Thus, in this case,

Michigan law controls the first inquiry, and federal law, as set forth by
the Supreme Court and Federal Circuit, controls the second. See id.
MICH. COMP. LAWS § 600.701 provides for general personal
jurisdiction over an individual if “any of the following relationships”
exists: (1) presence in the state at the time when process is served; (2)
domicile in the state at the time when process is served; or (3) consent.”
In this case, Mr. Bollinger’s contacts with Michigan do not satisfy
any of these three conditions. Plaintiff also appears to argue that the
Court has general personal jurisdiction over Mr. Bollinger because he
directs the actions of the corporate defendants, which “maintain a
deliberate, systematic business relationship within this District,” the
Court has jurisdiction. But that the Court has jurisdiction over the
corporate entity does not give it jurisdiction over a corporate officer by
extension. Instead, as set forth above, the Court must have jurisdiction
pursuant to Michigan’s law on general personal jurisdiction over

6

individuals. Accordingly, the Court lacks general personal jurisdiction
over Mr. Bollinger.
MICH. COMP. LAWS § 600.705 provides for limited jurisdiction over
individuals if any of the following relationships exist: (1) transaction of
any business within the state; [or] (2) doing or causing an act to be done,
or consequences to occur, in the state resulting in an action for tort.” 1
“Michigan’s long-arm statute ‘extends to the limits imposed by
federal constitutional due process requirements and thus, the [statutory
and due process inquiries] become one.’” Id. (quoting Mich. Coal. of
Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th
Cir. 1992)). The exercise of personal jurisdiction comports with due
process if “the defendant purposefully established ‘minimum contacts’ in
the forum State.” Nuance Commc’n, Inc. v. Abbyy Software House, 626
F.3d 1222, 1230–31 (Fed. Cir. 2010) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 474 (1985)).
The Federal Circuit uses a three-prong test to assess whether
sufficient minimum contacts exist to establish personal jurisdiction: (1)
whether the defendant purposefully directed its activities at residents of

1

Additional relationships are set forth in the statute but are not relevant here.

7

the forum, (2) whether the claim arises out of or relates to those activities,
and (3) whether assertion of personal jurisdiction is reasonable and fair.
3D Sys., Inc. v. Aarotech Labs. Inc., 160 F.3d 1373, 1378 (Fed. Cir. 1998).
Here, plaintiff asks the Court to exercise personal jurisdiction over
a corporate officer. The Federal Circuit holds that “[t]he fiduciary shield
doctrine buffers corporate officers from personal jurisdiction when their
official duties were their only contact with a forum state.” Grober v. Mako
Prods., Inc., 686 F.3d 1335, 1347 (Fed. Cir. 2012). Thus, any contacts by
a corporate officer within the forum state must be done outside of his
“role as an officer” to meet the “purposefully directed” prong of the
specific jurisdiction test. 3D Sys., Inc., 160 F.3d at 1380.
Plaintiff alleges that Mr. Bollinger has sufficient minimum
contacts with Michigan because he “purposefully directed the activities
of the corporate Defendants in this District” and was “personally involved
in Defendants’ infringement.” (Dkt. 68 at 3; Dkt. 61-2 at 5.) But these
actions were taken “in his role as Founder, President, and CEO of the
Corporate Defendant organizations,” not in his personal capacity. (See
Dkt. 61-2 at 5 (para. 17).)

Further, even if he purchased plaintiff’s

product on April 14, 2009 in his personal capacity, (Dkt. 61-2 at 6), the
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patent in dispute was not issued until 2013.

Thus, Mr. Bollinger’s

purchase could not constitute infringement in his personal capacity. In
sum, plaintiff has failed to make any allegations that Mr. Bollinger acted
in his personal capacity, and not as a corporate officer, with respect to
the alleged patent infringement. And plaintiff has not suggested the
Court pierce the corporate veil to reach individual corporate officers.
Accordingly, the Court lacks specific personal jurisdiction over Mr.
Bollinger with respect to the patent infringement claim. See 3D Sys.,
Inc., 160 F.3d at 1380–81; Genetic Implant Sys., Inc. v. Core-Vent Corp.,
123 F.3d 1455, 1459–60 (Fed. Cir. 1997).
Next, defendants argue that the Court lacks personal jurisdiction
over Mr. Bollinger with respect to the trademark claim. The law of the
Sixth Circuit governs personal jurisdiction with respect to this claim.
In the Sixth Circuit, “personal jurisdiction over a defendant exists
if the defendant is amenable to service of process under the [forum]
state’s long-arm statute and if the exercise of personal jurisdiction would
not deny the defendant due process.” Bird v. Parsons, 289 F.3d 865, 871
(6th

Cir.

2002)

(internal

quotation

and

citation

omitted).

“Personal jurisdiction can be either general or specific, depending upon
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the nature of the contacts that the defendant has with the forum state.”
Id.
The Michigan statutes on personal jurisdiction set forth above also
apply to the trademark claim. And in the Sixth Circuit, to ensure that
jurisdiction comports with due process, “the following three criteria must
be met: (1) the defendant must purposefully avail himself of the privilege
of acting in the forum state or causing a consequence in the forum state;
(2) the cause of action must arise from the defendant’s activities there;
and (3) the acts or consequences must have a substantial enough
connection with the forum state to make the exercise of jurisdiction
reasonable. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 889–
90 (6th Cir. 2002) (quoting S. Mach. Co. v. Mohasco Indus., Inc., 401 F.2d
374, 381 (6th Cir. 1968)). Further, where no evidentiary hearing on
jurisdiction has been conducted, the plaintiff “need only make a prima
facie showing of jurisdiction.” Bird, 289 F.3d at 871. 2

“An evidentiary hearing may be conducted if the district court concludes that the
written submissions have raised issues of credibility or disputed issues of fact which
require resolution.” SFS Check, LLC v. First Bank of Del., 990 F. Supp. 2d 762, 770
(E.D. Mich. 2013) (quoting Amer. Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th
Cir. 1988)). As set forth below, the allegations are not disputed; instead, the parties
dispute whether the allegations are sufficient. Accordingly, the Court declines to
exercise its discretion to hold an evidentiary hearing on this issue.
2

10

As set forth above with respect to the patent claim, the Court lacks
general personal jurisdiction because Mr. Bollinger does not meet any of
the statutory criteria under Michigan’s long-arm statute.
With respect to limited jurisdiction, plaintiff alleges that Mr.
Bollinger served as “Founder, President, and CEO of the Corporate
Defendant organizations” and in this role “directed and controlled, and
continues to direct and control, Defendants’ sales of THE STORK OTC
Home Conception Device into Michigan.” (Dkt. 63-1 at 4 (para. 10).)
Further, Mr. Bollinger was allegedly aware that plaintiff was a Michigan
entity, that he “personally directed the Defendants to engage in the
alleged activities . . . and specifically directed its employees to do so,” and
that Mr. Bollinger “was personally involved in the development of
Defendants’ products; in Defendants’ use of Plaintiff’s trademark name;
and in marketing and promoting Defendants [sic] Products.” (Dkt. 63-1
at 5, 7.)
Taking the allegations as true, plaintiff has sufficiently alleged that
Mr. Bollinger intended to infringe plaintiff’s trademark through his
control and direction of corporate employees. “With that assumption,
[Mr. Bollinger] certainly should have anticipated being haled into court,”
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and through this conduct “did, in fact, unfairly injure [a Michigan]
corporation.” Amer. Energy Corp. v. Amer. Energy Ptrs., Case No. 13-cv886, 2014 WL 1908290, at *10 (S.D. Ohio May 9, 2014). Thus, his contact
with Michigan is “not the result of random, fortuitous, or attenuated
contacts, nor the unilateral activity of another party—it is the result of
[Mr. Bollinger’s] own intentionally tortious conduct purposefully directed
to this forum.” Id. Accordingly, the purposeful availment prong has been
met.
Because Mr. Bollinger’s alleged contact with Michigan was control
of or direction to employees to infringe plaintiff’s trademark, the cause of
action for trademark infringement directly arises from his contacts with
this state.

There is therefore a substantial connection between Mr.

Bollinger’s contacts with Michigan and the cause of action, which
satisfies the second prong of the due process analysis.

See Balance

Dynamics Corp. v. Schmitt Indus., Inc., 204 F.3d 683, 698 (6th Cir. 2000)
(courts may exercise personal jurisdiction over “corporate officers who
actively and personally involved themselves in conduct violating the
Lanham Act”).

12

Once the first two prongs are satisfied, “[a]n inference arises that
the third factor is satisfied.” Bird, 289 F.3d at 875 (internal quotation
omitted). Reasonableness is determined by assessing several factors:
“the burden on the defendant, the interest of the forum state, the
plaintiff’s interest in obtaining relief, and the interest of other states in
securing the most efficient resolution of controversies.” Id.
Here, Mr. Bollinger may be burdened by defending in Michigan, but
this burden is diminished by the fact that he is represented by the same
counsel as the corporate defendants. Michigan’s interest in protecting
the business interests of its citizens and corporations and plaintiff’s
legitimate interest in obtaining relief in its home forum also weigh in
favor of jurisdiction. Gen. Motors L.L.C. v. Autel. US Inc., Case No. 14cv-1223357, 2016 WL 1223357, at *6 (E.D. Mich. Mar. 29, 2016). And
“[f]inally, because the defendant’s alleged actions targeted intellectual
property located in Michigan, no other place would be a more appropriate
forum to afford an efficient resolution of the conflict.”

Id.

Thus,

exercising jurisdiction over Mr. Bollinger is reasonable and satisfies the
due process inquiry.

13

Accordingly the Court has personal jurisdiction over Mr. Bollinger
with respect to the trademark infringement claims only. The remaining
analysis in this opinion is applicable solely to the trademark claims.
Venue
Defendants argue that even if the Court has personal jurisdiction
over Mr. Bollinger, the Eastern District of Michigan is the improper
venue.
Venue is governed by 28 U.S.C. § 1391, which permits any civil
action to be brought in “(1) a judicial district in which any defendant
resides, if all defendants are residents of the State in which the district
is located; (2) a judicial district in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or (3) if there is no
district in which an action may otherwise be brought as provided in this
section, any judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action.” 28 U.S.C. §
1391(b).
“When venue is challenged, the court must determine whether the
case falls within one of the three categories set out in § 1391(b). If it does,
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venue is proper; it if does not, venue is improper.” Atl. Marine Constr.
Co., Inc. v. U.S. Dist. Ct. for W.D. Tex., ___ U.S. ___, 134 S. Ct. 568, 577
(2013). “Plaintiff bears the initial burden of establishing venue,” and
once satisfied, “the burden shifts to the defendant to establish that venue
is improper.” AlixPartners, LLP v. Brewington, 133 F. Supp. 3d 947, 961
(E.D. Mich. 2015) (internal quotations and citations omitted). 3
In this case, because Mr. Bollinger is an out-of-state defendant,
venue is proper in the Eastern District of Michigan only if “a substantial
part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated”
within this district. 28 U.S.C. § 1391(b)(2).
Defendants argue that venue is improper because plaintiff has not
alleged any conduct that Mr. Bollinger undertook that occurred in this
district. First, the trademark infringement allegedly occurred through
online marketing, not through the sale of products with infringing

The courts in this district are conflicted as to whether plaintiff or defendant bears
the burden when a party objects to venue, and the Sixth Circuit has not addressed it.
This Court agrees with the authority that considers improper venue to be an
affirmative defense, as opposed to an attack on jurisdiction, and therefore holds that
the party raising the defense bears the burden of establishing that the venue is
improper. See Long John Silver’s Inc. v. DIWA III, Inc., 650 F. Supp. 2d 612, 629–31
(E.D. Ky. 2009) (collecting and analyzing cases and authorities on federal practice).
3

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information. (Dkt. 66 at 26.) Second, the corporate defendants’ sales into
Michigan cannot establish that venue is proper with respect to Mr.
Bollinger. (Id.) Finally, plaintiff was previously headquartered in the
Western District of Michigan, and there is no indication that it has any
employees in the Eastern District. (Id.)
In trademark cases, “[v]enue is proper . . . where the infringing
activity occurred” or “where the passing off occurred.” Pearle Vision, Inc.
v. N.J. Eyes, Inc., Case No. 08-cv-190, 2009 WL 73727, at *5 (S.D. Ohio
Jan. 6, 2009) (quoting Nine Pt. Mesa of Nashville, Inc. v. Nine Pt. Mesa
of Lexington, Inc., 769 F. Supp. 259, 261 (M.D. Tenn. 1991)).
Here, the only way in which plaintiff alleges that defendants
violated the trademark was through use of CONCEPTION KIT on their
website. (See Dkt. 63-2 at 22–23.) Nothing in the complaint indicates
that the website targeted Michigan consumers, was hosted in or active
only in Michigan, or was sufficiently interactive that Mr. Bollinger may
have communicated with Michigan purchasers. To the contrary, plaintiff
alleges that the website sold nationwide and to customers in the United
Kingdom, which weighs against finding that Michigan is the proper
venue, given that the infringing place—the website—was not in
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Michigan.

Moreover, nothing in the complaint indicates that Mr.

Bollinger was involved with the website itself, was involved with it in
Michigan, or was involved in targeting Michigan consumers through it.
Thus, with respect to Mr. Bollinger, none of the events or omissions at
issue occurred in Michigan.
Accordingly, the Eastern District of Michigan is the improper venue
for a suit against Mr. Bollinger, and plaintiff’s motion to amend to add
him as a defendant is denied.
B. Motion to Consolidate
Plaintiff also seeks to consolidate this case with its pending
copyright infringement lawsuit against the same corporate defendants,
Case No. 15-cv-14239. (Dkt. 62.) Plaintiff argues that consolidating the
cases is warranted at this time because the cases involve the same
parties, involve intellectual property claims related to the same products,
plaintiff has the same counsel for each case, and it would promote judicial
economy. (Dkt. 62 at 3.) Defendants oppose the motion, arguing that
consolidation would not promote judicial economy, would prejudice
defendants, and that common questions of fact or law do not
predominate. (Dkt. 65 at 1–2.)
17

Common Questions of Law or Fact
Plaintiff argues that because the two cases involve the same
defendants and same products, the cases involve common questions of
fact that justify consolidation. (Dkt. 62 at 16.) For instance, the “date
and circumstances surrounding Defendants’ first knowledge of Plaintiff’s
[product] and related intellectual property rights will be relevant in each
case.” (Id. at 16–17.) Defendants argue that common questions do not
predominate because each claim is legally distinct and the acts giving
rise to them are also distinct. (Dkt. 65 at 15–18.)
At this stage of the litigation, plaintiff asserts three types of
intellectual property claims:

patent, trademark, and copyright

infringement. First, plaintiff argues that the technology used in The
Stork OTC Home Conception Device infringes its patent.

Second,

plaintiff argues that defendants’ website and online marketing violate its
trademark “Conception Kit.” Third, plaintiff argues that the language in
the “Instructions for Use” manual issued by defendant violates its
copyright.
While it is true that each claim is similar in that they all involve
intellectual property and the same products, each claim arises from
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largely individual facts and entirely different questions of law. The date
and circumstances in which defendants learned of each type of
intellectual property right asserted by plaintiff are relevant to each case,
but there is no reason to believe they will necessarily be the same.
Similarly, the way in which defendants allegedly infringed each of
plaintiff’s intellectual property rights are substantively different.
Furthermore, as set forth above and in a separate opinion and order
in Case No. 15-14239, Mr. Bollinger may be added as a defendant only
with regard to copyright infringement, and not with regard to the patent
and trademark infringement counts. Thus, the cases no longer involve
all of the same defendants, and different acts of Mr. Bollinger may be
relevant to the copyright infringement count and not to the patent or
trademark infringement counts.
Accordingly, common questions of law or fact do not predominate
and do not justify consolidation. See Hasman v. G.D. Searle & Co., 106
F.R.D. 459, 460–61 (E.D. Mich. 1985) (denying motion to consolidate
where plaintiffs were injured in different ways by same product made by
defendant).

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Judicial Economy
Plaintiff argues that consolidation would promote judicial economy
because the parties are the same, at least two witnesses will be the same,
and one discovery schedule could be worked out for both parties, which
would minimize costs, the production burden, and disputes. (Dkt. 62 at
18–22.)

Defendants argue that consolidation would not significantly

promote judicial economy because the parties already have a documentsharing agreement in place and agreed to single depositions of key fact
witnesses. (Dkt. 65 at 19–21.)
The burden on the parties and witnesses may be slightly greater if
consolidation is denied, but not significantly. Plaintiff has identified only
two witnesses in common to both lawsuits, Mr. La Vean, principal of
Conceivex, and Mr. Bollinger. And the parties have already stipulated
to a single deposition for both cases for these witnesses. (Dkt. 65 at 21.)
Although these individuals may have to testify in both cases, given the
nature and timing of these suits, described in more detail below, the
burden likely will not be much greater due to the way in which each case
has proceeded.

20

The copyright case has been pending for nearly two years and
discovery has been ongoing since April 2016. The patent and trademark
case has been pending for over one year and discovery has been ongoing
since October 2016. Each case has been proceeding since then with its
own discovery schedule, and will likely continue to diverge in terms of
timing. For example, the Court is required to hold a Markman hearing
regarding plaintiff’s patent claim, which may significantly delay the
resolution of the patent and trademark case. Currently, fact discovery
will end in the copyright matter October 2, 2017. By contrast, in the
patent case, fact discovery will continue until sixty days after the Court
issues a claim construction hearing. The hearing is scheduled for October
25, 2017. Thus, consolidating the cases would not meaningfully lessen
the burden on the parties or the Court with respect to discovery and other
pretrial matters.
Furthermore, as discussed above, the legal claims brought
implicate different acts of defendants, and although discovery related to
the development of the products may be the same for both cases,
consolidation likely would not minimize the production burden and

21

expenses of the parties, given that different facts will be needed to prove
patent, trademark, and copyright infringement.
Consolidation would allow the Court to hold a single trial, instead
of two separate trials. But given the volume of documents and differing
facts that the parties need to prove or defend against each claim, it is
unclear whether consolidation would substantially reduce trial costs.
One significantly longer trial may not outweigh two shorter trials.
Moreover, as set forth above, the cases have been proceeding on different
timetables and consolidation would not resolve substantive issues that
require the claims to move at different speeds, particularly the patent
claim. In sum, the savings to the judicial system appear to be uncertain,
and, at best, minimal.
Prejudice to Defendants
Defendants argue that they will be prejudiced by consolidation
because (1) it will force their separate counsel for each case to coordinate
at every step, and (2) plaintiff could misuse evidence from one case to
prejudice the jury regarding the other claims.

(Dkt. 62 at 22–24.)

Plaintiff argues that defendants will suffer no prejudice, and that the risk

22

of inconsistent adjudication of common facts and inefficiencies of two
lawsuits outweighs any prejudice. (Dkt. 69 at 5.)
Here, defendants will not suffer undue prejudice.

That their

counsel must coordinate, as they are in many aspects already, is
insufficient to justify denial. Further, while it may be that evidence
related to one claim may influence a jury’s beliefs on another claim, see,
e.g., Hasman, 106 F.R.D. at 461, any “risk of prejudice may be overcome
through the use of carefully prepared interrogatories on the verdict
form.” Van Emon v. State Farm Mut. Auto. Ins. Co., Case No. 05-cv72638, 2008 WL 2478343, at *2 (E.D. Mich. June 17, 2008) (citing Stemler
v. Burke, 344 F.2d 393, 396 (6th Cir. 1965)).
As set forth above, plaintiff overstates the common questions of fact
at issue in these cases and the extent to which consolidation would
promote judicial economy. Accordingly, this final factor does not weigh
in favor of either party.
In considering each of the above factors, the Court finds that they
weigh against consolidation, especially given that plaintiff could have
filed one lawsuit or amended its initial complaint to add the patent and

23

trademark claims, but instead chose to file a new lawsuit. Accordingly,
plaintiff’s renewed motion to consolidate is denied.
IV.

Conclusion

For the reasons set forth above, plaintiff’s motion to amend (Dkts.
61, 63) is DENIED.
Plaintiff’s renewed motion to consolidate (Dkt. 62) is DENIED.
IT IS SO ORDERED.
Dated: August 15, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 15, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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