X2Y ATTENUATORS, LLC v. INTEL CORPORATION et al

Filing 59

ORDER. Defendants' Motion to Dismiss (Doc. 37 ) is GRANTED, and Plaintiff's Motion to reopen (Doc. 17 ) is DENIED AS MOOT. Signed by Judge Cathy Bissoon on 7/13/18. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

X2Y ATTENUATORS, LLC,
Plaintiff,
v.
INTEL CORPORATION, et al.,
Defendants.

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Civil Action Nos. 11-117E and
11-218E
Judge Cathy Bissoon

ORDER1
Defendants’ Motions to Dismiss under Federal Rule 41(b) will be granted, and Plaintiff’s
Motions to reopen will be denied as moot.
In determining whether to dismiss these cases for failure to prosecute, the Court
considers: (1) the extent of Plaintiff’s personal responsibility; (2) prejudice to Defendants;
(3) Plaintiff’s history of dilatoriness; (4) whether Plaintiff’s conduct was willful or in bad faith,
as opposed to excusable neglect; (5) the effectiveness of sanctions other than dismissal;
and (6) the meritoriousness of Plaintiff’s claims. Poulis v. State Farm Fire & Cas. Co.,
747 F.2d 863, 868 (3d Cir. 1984).
As was true regarding the patent-venue decision in 17-164E, the Court does not believe
this to be a close case. As to personal responsibility, Plaintiff’s arguments do not pass the
“smell-test.” Although counsel references complicated-scenarios regarding Plaintiff’s need to
renegotiate contracts in order to retain new counsel, before it could move to reopen,
its explanations are too inwardly-focused, and beg too much forgiveness.

Although the parties’ Motion papers have been filed under seal, the Court is convinced that no
confidential information is revealed in this Order. Accordingly, the filing has been made on the
public docket.
1

Even accepting Plaintiff’s version of events, its reasoning would permit an indefinite
delay, of any duration, so long as it plausibly could claim to have been “working hard” to clear
self-identified obstacles. Plaintiff admits – as it must − to having delayed its request to reopen
for nearly three years since the ITC proceedings ended; and six years since the lawsuits initially
were filed. And, while the Court reasonably might accept Plaintiff’s explanations for a lesser
duration, the three- (or six-) year delay, under the circumstances, proves too much. Defendants
had no control over Plaintiff’s machinations − nor were they even awareness of their existence –
and Plaintiff’s explanations, all these years later, should hardly assuage Defendants, in terms of
their reasonable expectations and resulting-prejudice to their ability to defend. Were the Court to
accept even a fraction of Defendants’ assertions, regarding Plaintiff’s other pre- and post-suit
delays (whether tactical or otherwise), the determination would be all the more obvious. In any
event, Plaintiff has not convincingly explained-away its personal responsibility in occasioning
the years-long delay.2
As to prejudice, Defendants convincingly have shown theirs to have been substantial,
and the Court incorporates their arguments and evidence as if fully restated. Regarding
Plaintiff’s state of mind, although the Court is not prepared to say that it acted willfully or in bad
faith, it certainly would not characterize the delay as excusable. Regarding alternative sanctions,
the Court agrees with Defendants that none other than dismissal would be effective and/or
appropriate. Although Plaintiff focuses on whether it engaged in sanctionable-behavior –

Given the sophistication of the parties, and the putative-liability at stake, Plaintiff had no
reasonable expectation that its efforts ultimately would be deemed sufficient. At some point
during the months and years of delay, Plaintiff should have appreciated that its chosen-course
was problematical, and that solutions were required and/or that alternatives needed to be
considered. That Defendants, the whole time, remained completely in the dark only exacerbated
the risk; as, with the passage of time, so too increased the obvious likelihood of prejudice.
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and highlights that none of its prior conduct was sanctioned – this does not answer the question
at hand, namely, what should be the consequence(s) of the years-long delay. No effective
alternative has been identified, and the Court agrees with Defendants that dismissal is
appropriate.
The final consideration is the meritoriousness of Plaintiff’s claims. Although the Court
need not take quite as dim a view of Plaintiff’s claims as Defendants, Plaintiff – again – cannot
ignore the objective realities. By mutual agreement, the parties’ embarked on a three-year course
of intensive litigation before the ITC, and Plaintiff lost. Plaintiff appealed the unfavorable
decision to the Court of Appeals for the Federal Circuit, again to no avail. No matter how early
and often Plaintiff may have declared and/or insinuated, “all rights reserved,”3
the meritoriousness factor cannot, under the circumstances, be viewed as favoring Plaintiff.
In sum, the Court concludes that a dismissal under Rule 41(b)/Poulis is warranted.
This result – too – is consistent with the general interests of finality, and promoting litigants’
reasonable expectations (in this case, regarding litigation that, by all available indications,
appeared to have ended long-ago). Cf. Anderson v. X.H. Aponte, 2017 WL 3047885, *6
(C.D. Cal. May 22, 2017) (acknowledging interconnectedness between Rule 41(b) dismissals
and “the [d]efendants[’] the Court[’s], and the public[’s] deserv[ing] finality”); King v. Garrett,
1998 WL 483008, *1 (9th Cir. Aug. 12, 1998) (affirming dismissal under Rule 41(b),
in recognition of “the defendant’s right to eventual repose”). Litigation, as all things, eventually
must come to an end; and, under the circumstances presented, that time is now.

3

Cf. generally Compl. in 17-164E (Doc. 1, therein) at ¶ 7 (indicating that Plaintiff chose to
“streamline[]” the ITC litigation by eliminating certain of its patent-claims, and positing that
“many of the strongest claims . . . were ultimately not asserted [in the ITC proceeding] because of
practical considerations”).
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Consistent with the foregoing, Defendants’ Motions to Dismiss (Doc. 35 in 11-117E;
and Doc. 37 in 11-218E) are GRANTED; and Plaintiff’s Motions to reopen (Doc. 14
in 11-117E; and Doc. 17 in 11-218E) are DENIED AS MOOT.
IT IS SO ORDERED.

July 13, 2018

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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