United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO CONSOLIDATE
L. ROBART UNITED STATES DISTRICT JUDGE.
the court is Defendant HTC America, Inc.'s
(“HTC”) motion to consolidate Uniloc USA,
Inc. v. HTC America, Inc., No. C17-1629JLR (W.D. Wash.),
with three other previously consolidated patent cases
Plaintiffs Uniloc USA, Inc. and Uniloc Luxembourg, S.A.
(collectively, “Uniloc”) filed against HTC in
this District. (See MTC (Dkt. # 32); see
also Consol. Order (Dkt. # 26).) Uniloc opposes the
motion. (MTC Resp. (Dkt. # 36).) The court has considered the
motion, the parties' submissions in support of and in
opposition to the motion, the relevant portions of the
record, and the applicable law. Being fully advised,
court GRANTS the motion for the reasons set forth below.
October 20, 2017, Uniloc filed three patent cases against HTC
(“the HPE cases”), alleging infringement of U.S.
Patent Nos. 6, 622, 018 (“the '018 patent”),
6, 661, 203 (“the '203 patent”), and 6, 580,
422 (“the '422 patent”). (See JSR
(Dkt. # 24); 3/1/18 Min. Entry (Dkt. # 25).) Uniloc filed a
fourth case (“the FullPower case”) against HTC on
November 1, 2017, alleging infringement of three additional
patents: U.S. Patent Nos. 7, 653, 508 (“the '508
patent”), 7, 881, 902 (“the '902
patent”), and 8, 712, 723 (“the '723
patent”). Uniloc, No. C17-1629JLR, Dkt. # 1
(“Compl.”). In their February 16, 2018, joint
status report, the parties agreed that the first three cases
were related but disagreed about the fourth case. (JSR at 2.)
On March 1, 2018, the court held a telephone conference and
consolidated the first three cases. (See 3/1/18 Min.
Entry; Consol. Order at 1.)
the conference, HTC moved to consolidate all four matters.
(See MTC.) HTC contends that although the cases
involve different patents, they nevertheless involve common
questions of fact, the same parties, the same counsel,
similar legal theories, and “nearly identical relief
for a similar set of accused products.” (Id.
at 1.) For those reasons, HTC argues that further
consolidation will promote judicial economy. (Id.)
Uniloc disagrees. (See generally MTC Resp.) The
court now addresses the motion.
Federal Rule of Civil Procedure 42(a), “[i]f actions
before the court involve a common question of law or fact,
the court may . . . consolidate the actions.”
Fed.R.Civ.P. 42(a)(2). If the actions have a common question
of law or fact, the court “weigh[s] the interests of
judicial economy against any delay or prejudice that might
result.” Veljanoski v. Juno Therapeutics,
Inc., No. C16-1069RSM, 2016 WL 9525238, at *1 (W.D.
Wash. Oct. 7, 2016); see also First Mercury Ins. Co. v.
SQI, Inc., No. C13-2110JLR, 2014 WL 496685, at *2 (W.D.
Wash. Feb. 6, 2014). The court's discretion under Rule
42(a) is broad. See Pierce v. Cty. of Orange, 526
F.3d 1190, 1203 (9th Cir. 2008). Similarly, the Western
District of Washington's Local Civil Rules provide that
cases are related when they “concern substantially the
same parties, property, transaction, or event” and
“it appears likely that there will be an unduly
burdensome duplication of labor and expense or the potential
for conflicting results if the cases are conducted before
different judges.” Local Rules W.D. Wash. LCR
court first finds that the fourth case shares a common issue
of fact with the three previously consolidated matters. All
four of the cases involve some overlap of the products Uniloc
accuses of infringement. Compare Uniloc, No.
C17-1629JLR, Compl. ¶ 10, with (JSR at 2.)
Although the patents at issue in each of the suits are
different, the fact that Uniloc accuses the same HTC products
of infringing those patents is common to all four cases.
Compare Uniloc, No. C17-1629JLR, Compl. ¶ 10,
with (JSR at 2.)
court also finds that the judicial economy to be gained from
consolidating the four matters outweighs any delay or
prejudice to Uniloc. See Veljanoski, 2016 WL
9525238, at *1. As HTC points out, because the product lines
utilizing the allegedly infringing patents largely overlap,
the cases “involve common questions of fact related to
at least the sales and marketing” of those products.
(MTC at 4.) This is so even though claim construction does
not overlap. (See MTC Resp. at 6.) In addition,
consolidation will promote efficiency in discovery.
(See MTC at 4; see also MTC Resp. at 5.)
Indeed, Uniloc acknowledges as much, stating that
“there would be some efficiencies gained by sharing
discovery across” the cases. (MTC Resp. at 5.)
importantly, the court discerns no significant prejudice to
Uniloc from consolidation because none of the four cases have
progressed beyond Rule 12(b) motions or answers to the
complaints. (See generally Dkt.);
Uniloc, No. C17-1629JLR, Dkt. In addition, no
scheduling order has yet been entered in the FullPower case.
See Uniloc, No. C17-1629JLR, Dkt.
only hint of prejudice Uniloc identifies arises from the
possibility that one of the parties could seek inter
partes review (“IPR”) of the patents and
consequently, a stay pending IPR. (MTC Resp. at 6.) That
amorphous-and currently unrealized-threat of prejudice is not
enough to overcome the judicial economy from consolidating
the cases. If HTC requests such a stay, Uniloc may at that
time address the request. (See Id. (quoting
Freeman v. Delta Air Lines, Inc., No. 13-cv-04179
JSW, 2014 WL 5830246, at *5 (N.D. Cal. Nov. 10, 2014)
(“Consolidation under Rule 42(a) does not automatically
merge the suits into a single cause, or change the rights of
the parties, or make those who are parties in one suit
parties to the other.” (internal quotation marks
omitted)).) For those reasons, the court grants HTC's
motion to consolidate. No scheduling order has yet been
entered for the FullPower case. See Uniloc, No.
C17-1629JLR, Dkt. However, before that case was transferred
to the undersigned judge, the parties filed a joint status
report in which they proposed Markman-related
deadlines, pretrial deadlines, and a trial date earlier than
or similar to the dates the court has already set for the
three previously consolidated cases. See id., Dkt. #
21 (“FullPower JSR”); (JSR.) For that reason, the
court's scheduling order for the three previously
consolidated matters now governs all of the consolidated
matters. (See Sched. Order (Dkt. # 28).) If either
party believes there is good cause for altering the
court's scheduling order, the party may raise that issue
no later than seven (7) days after the entry of this order.
See Jackson v. Laureate, Inc., 186 F.R.D. 605, 607
(E.D. Cal. 1999) (“Rule 16's ‘good cause'
standard focuses on the diligence of the party” seeking
reprieve from a deadline.). The court cautions, however, that
it is unlikely to find good cause at this time, given the
proposed dates in the FullPower joint status report. See
Uniloc, No. C17-1629JLR, FullPower JSR.
reasons set forth above, the court GRANTS HTC's motion to
consolidate (Dkt. # 32). All future pleadings filed in this
matter shall bear the cause number C17-1558JLR. The court
further ORDERS that its previously entered scheduling order
(Dkt. # 28) governs this consolidated matter. Should either
party believe there is good cause for altering the scheduling
order, the party may raise that issue no later than seven (7)
days after the entry of this order. The court cautions,
however, that it is ...