TQ DELTA LLC v. 2Wire INC.

Nos. 13-cv-1835 (RGA), 13-cv-1836 (RGA), 13-cv-2013 (RGA), 14-cv-954 (RGA), 15-cv-121 (RGA)

TQ DELTA LLC, Plaintiff, v. 2WIRE INC., Defendant. TQ DELTA LLC, Plaintiff, v. ZHONE TECHNOLOGIES INC., Defendant. TQ DELTA LLC, Plaintiff, v. ZYXEL COMMUNICATIONS INC. and ZYXEL COMMUNICATIONS CORP., Defendants. TQ DELTA LLC, Plaintiff, v. ADTRAN, INC., Defendant.

United States District Court, D. Delaware.

Editors Note
Applicable Law: 35 U.S.C. § 271
Cause: 35 U.S.C. § 271 Patent Infringement
Nature of Suit: 830 Patent
Source: PACER


Attorney(s) appearing for the Case

TQ Delta LLC, Plaintiff, represented by Brian E. Farnan , Farnan LLP.

TQ Delta LLC, Plaintiff, represented by Anna M. Targowska , pro hac vice, Ari B. Lukoff , Faegre Baker Daniels LLP, pro hac vice, Kris Y. Teng , Kris Y. Teng, pro hac vice, Michael J. Farnan , Farnan LLP, Michael S. Tomsa , Robins Kaplan LLP, pro hac vice, Paul W. McAndrews , pro hac vice, Peter J. McAndrews , McAndrews, Held and Malloy, Ltd., pro hac vice, Rajendra A. Chiplunkar , McAndrews Held & Malloy, Ltd., pro hac vice, Sharon A. Hwang , pro hac vice, Sharon E. Roberg-Perez , Robins, Kaplan, Miller & Ciresi L.L.P., pro hac vice, Thomas J. Wimbiscus , pro hac vice & Timothy J. Malloy , pro hac vice.

2Wire Inc., Defendant, represented by Colm F. Connolly , Morgan Lewis & Bockius LLP, Jody Barillare , Morgan Lewis & Bockius LLP, Brett M. Schuman , Rachel M. Walsh , Morgan, Lewis & Bockius LLP, pro hac vice & Ryan L. Scher .

Broadcom Corporation, Intervenor, represented by Christine Dealy Haynes , Richards, Layton & Finger, PA, Jeffrey L. Moyer , Richards, Layton & Finger, PA & Amanda Tessar , pro hac vice.

2Wire Inc., Counter Claimant, represented by Colm F. Connolly , Morgan Lewis & Bockius LLP, Jody Barillare , Morgan Lewis & Bockius LLP, Brett M. Schuman & Ryan L. Scher .

TQ Delta LLC, Counter Defendant, represented by Brian E. Farnan , Farnan LLP, Anna M. Targowska , Michael J. Farnan , Farnan LLP, Paul W. McAndrews & Peter J. McAndrews , McAndrews, Held and Malloy, Ltd.,

TQ Delta LLC, Counter Defendant, represented by Sharon A. Hwang , Thomas J. Wimbiscus & Timothy J. Malloy .


MEMORANDUM ORDER

RICHARD G. ANDREWS, District Judge.

On June 13, I denied Plaintiff TQ Delta's motion to compel nonparty Broadcom to comply with a subpoena because I found jurisdiction in Delaware was improper under Federal Rules of Civil Procedure 45 and 37. (D.I. 322).1 Rule 45 requires a part to move to compel in the "district where compliance is required" and Rule 37 requires orders against nonparties to "be made in the court where the discovery is or will be taken." Fed. R. Civ. P. 45(d)(2)(B)(i), 37(a)(2). Broadcom is not a party, is not located in Delaware, and the documents sought by the subpoena are not located here either.

Broadcom requested attorney's fees (D.I. 315 at 12), and I directed the parties to brief the issue. Having considered those papers (D.I. 327, 328, 336), I am DENYING Broadcom's request.

Rule 37 allows and generally requires me to award fees to the prevailing party. It dictates:

If the motion is denied, the court ... must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.

Rule 37(a)(5)(B).2

I am denying Broadcom's request because I find Plaintiffs motion was "substantially justified" for two reasons. First, Broadcom had already actively participated in this case in this court. (See, e.g., D.I. 104, 106). Second, Plaintiffs counsel points to my resolution of a motion to compel in Delaware Display Grp. LLC v. Lenovo Grp. Ltd., 2016 WL 720977 (D. Del. 2016). In that case, which Plaintiffs counsel was a part of, I resolved a motion to compel involving a non-party over jurisdictional objections similar to those here. (See id., No. 13-2108 D.I. 136 at 12-5).3 Thus, I understand why Plaintiff might have expected the same treatment here. I find Plaintiffs decision to file the motion to compel in this Court substantially justified and deny Broadcom's request for attorney's fees.

IT IS SO ORDERED.

FootNotes


1. All citations are to the docket in Civil Action No. 13-1835 unless otherwise noted.
2. Broadcom also argues I have authority to award fees under Rule 45(d)(1) but that Rule empowers the "district where compliance is required" to award fees. As has been established, that is not the District of Delaware.
3. I say, "similar," because they were not the same. There, both of the non-parties were Delaware corporations, and at least one of the subpoenas designated this District as the place of compliance. Nevertheless, I did (erroneously) skip over the jurisdictional objections in an attempt to reach a practical and expeditious "work-around." No similar "work-around" existed here.

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