DietGoal Innovations LLC v. Wegmans Food Markets, Inc.
Filing
113
MEMORANDUM ORDER denying 88 Motion to Sever and for Expedited Trial Schedule. Defendant General Mills" Motion to Sever and for an Expedited TrialSchedule is DENIED. General Mills will be excluded from all deadlines provided in the Rule 16(b) Scheduling Order that occur prior to the deadline for Dispositive Motions.Signed by District Judge Raymond A. Jackson and filed on 6/5/2014. (bgra)
FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
JUN -6 2014
Norfolk Division
DIETGOAL INNOVATIONS LLC,
CLERK, US DISTRICT COURT
NORFOLK. VA
Plaintiff,
v.
CIVIL ACTION NO. 2:13evl54
Lead Case
WEGMANS FOOD MARKETS, INC.,
Defendant.
DIETGOAL INNOVATIONS LLC,
Plaintiff,
CIVIL ACTION NO. 2:14e\143
v.
Consolidated Aetion
GENERAL MILLS SALES, INC.,
Defendant.
MEMORANDUM ORDER
Before the Court is Defendant General Mills Sales* Motion to Sever and for an Expedited
Trial Schedule, filed on April 24. 2014. ECF No. 88. Plaintiff DietGoal Innovations filed its
Opposition on May 9, 2014, ECF No. 93. and General Mills filed a Reply on May 15. 2014. ECF
No. 97. The motion is accordingly ripe for disposition.
On March 25, 2014, the United States District Court for the Eastern District of Texas
transferred this action to this district. Case No. 2:12cv761. ECF No. 388 (E.D. Tex.). On April
21. 2014. the Court entered a sua sponte order consolidating the transferred action for pretrial
purposes with three other consolidated actions pending in this district pursuant to Federal Rule of
Civil Procedure 42. See Civil Actions No. 2:13cvl54 (DielGoal Innovations LLC v. Wegmans
1
Food Markets, Inc.), 2:13cv401 (DielGoal Innovations LLC v. Dunkin' Brands Group, Inc.), and
2:13cv430 (DietGoal Innovations LLC v. Domino's Pizza, Inc.). See Bess v. Cty. of
Cumberland, N.C., 5:1 lcv388, 2011 WE 4809879, at *9 (E.D.N.C. Oct. 22, 2011) ("District
courts have the inherent authority to order consolidation sua sponte.") (quotation omitted). The
Court noted that consolidation was proper because the central claim in all four actions was
infringement of the same patent through defendants' use of a computerized menu planning
interfaces, and because the defendants raised overlapping defenses and counterclaims.
General Mills then filed the instant motion, which effectively asks the Court to reconsider
and vacate the consolidation order.' General Mills notes that before the action was transferred
from the Eastern District of Texas, the parties had already finished Markman proceedings, had
nearly finished discovery and were scheduled for trial on June 2, 2014. The case was therefore
far more advanced than the cases in this district with which the General Mills action was
consolidated, as discovery had not yet commenced in those cases and a trial date had not yet
been selected. Accordingly, General Mills argues that consolidation will cause it significant
hardship and prejudice.
Rule 42 of the Federal Rules of Civil Procedure reads, in relevant part: "if actions before
the court involve a common question of law or fact, the court may . . . consolidate the actions."
Fed. R. Civ. P. 42(a). "[A] district court must consider the interest ofjudicial economy as well
as the interest of the parties in a fair and impartial procedure.*' In re MicroStrategy Inc. Sec.
Litigation, 110 F. Supp. 2d 427, 431 (E.D. Va. 2000) (citing Johnson v. Celotex Corp.. 899 F.2d
1281. 1285 (2d Cir. 1990)). "In that regard, courts considering whether to order consolidation
must determine whether "the specific risks of prejudice and possible confusion [from
1Because the Court consolidated the cases without briefing from the parties, however, the Court will not apply the
deferential standard normally applied to a motion to reconsider.
consolidation are] overborne by the risk of inconsistent adjudications of common factual and
legal issues, the burden on parties, witnesses and available judicial resources posed by multiple
lawsuits, the length of time required to conclude multiple suits as against a single one, and the
relative expense to all concerned.""* Id. (quoting Arnoldv. Eastern Air Lines Inc., 681 F.2d 186.
193 (4th Cir. 1982)). District courts enjoy wide discretion under Rule 42(a) to consolidate
actions pending in the same district. A/SJ. Ludwig Mowinckles Rederi v. Tidewater Constr.
Corp.. 559 F.2d 928, 933 (4th Cir. 1977); see generally Charles A. Wright, Arthur R. Miller, et
ah, 9A Federal Practice and Procedure Civil § 2384 (3d cd.).
The Court concludes that balancing the interests of the parties with the interests of
judicial efficiency indicates that consolidation remains appropriate, even considering the
relatively advanced nature of the General Mills case as compared to the other three actions
brought by DielGoal. Any argument that General Mills will be prejudiced purely by a delayed
resolution of the case is contradicted by its repeated and belated attempts to transfer the case to
this district. General Mills first moved for transfer on July 3. 2013. over a year after the action
was first filed. See Memorandum Order, Case No. 2:12cv761 (E.D. Tex. Mar, 25, 2014)
("General Mills did not diligently pursue its effort to transfer, waiting over a year after filing and
only doing so after this Court had extensively familiarized itself with this case and issued several
key rulings."). It then filed an additional supplemental brief re-urging transfer in March 2014,
only three months prior to the June trial date. These actions belie General Mills' assertions that
it has a strong interest in an expeditious trial date.
However, the Court docs find that having to conduct a Markman hearing and discovery
for the second time will cause General Mills great prejudice and needlessly waste judicial
resources. But because much, if not all, of the prior rulings in the Eastern District of Texas are
law of the case as to the action between General Mills and DietGoal, matters that have already
concluded will not be re-addressed and the parties will have to expend few, if any, resources on
duplicative matters. See Sejman v. Warner-Lambert Co., Inc., 845 F.2d 66, 69 (4th Cir. 1988) (a
decision that is "law of the case** must be followed in subsequent proceedings in the same case
unless, among other exceptions, "the prior decision was clearly erroneous and would work
manifest injustice"). Moreover, the Court will not permit additional discovery between General
Mills and DietGoal, beyond exchanging the rebuttal expert reports.
Therefore, the Court concludes that the consolidation of these cases for pretrial purposes
results in little prejudice to General Mills. And consolidation will also serve to enhance judicial
economy and fairness. For example, addressing any summary judgment motions in the same
timeframe will be advantageous to the Court. Although the Court is aware that any such motions
may very well involve two different sets of claim construction, depending on the result of the
Markman hearing for the other three defendants, many issues raised in future summary judgment
motions are nonetheless likely to overlap. Similarly, even if the Court ultimately holds four
separate trials in light of the America Invents Act, 35 U.S.C. § 299, the Court concludes that it
would be efficient to have those trials close in time rather than separated by a year or more, as
many pre-trial motions might involve similar issues. See Norman IP Holdings, LLC v. Lexmark
Int'l, Inc.. 6:12CV508, 2012 WL 3307942 (E.D. Tex. Aug. 10, 2012) (discussing the advantages
of pretrial consolidation in a patent infringement action). Moreover, having a consolidated
schedule will minimize prejudice to DietGoal. who opposed the belated transfer to this district.
Accordingly. Defendant General Mills" Motion to Sever and for an Expedited Trial
Schedule is DENIED. General Mills will be excluded from all deadlines provided in the Rule
16(b) Scheduling Order that occur prior to the deadline for Dispositive Motions.
The Court DIRECTS the Clerk to send a copy of this Order to the parlies.
IT IS SO ORDERED.
Norfolk. Virginia
JuneS • 2014
Raymon
S*-*'*
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