Opinion
Case No.: 16-CV-1544 JLS (NLS)
08-11-2016
DNA GENOTEK INC., a Delaware Corporation, Plaintiff, v. SPECTRUM SOLUTIONS L.L.C., a Utah Limited Liability Company; and SPECTRUM DNA, a Utah Limited Liability Company, Defendants.
ORDER DENYING PLAINTIFF'S EX PARTE MOTION TO USE DISCOVERY FROM PARALLEL CASE
(ECF No. 39)
Presently before the Court is Plaintiff DNA Genotek Inc.'s Ex Parte Motion to Use Discovery from Parallel Case (Ex Parte Mot., ECF No. 39), as well as Defendants Spectrum Solutions L.L.C. and Spectrum DNA's Opposition to (ECF No. 40) Plaintiff's Ex Parte Motion. Having considered the parties' arguments and the law, the Court DENIES Plaintiff's Ex Parte Motion. (ECF No. 39.)
BACKGROUND
On July 30, 2015, Plaintiff filed an action against Defendants in the United States District Court for the District of Delaware (the Delaware Action), alleging infringement of / / / / / / United States Patent No. 8,221,381 B2 (the '381 Patent). (Ex Parte Mot. 2, ECF No. 39 (citing Compl., DNA Genotek, Inc. v. Spectrum DNA, No. 1:15-cv-00661-SLR (D. Del. Filed July 30, 2015), ECF No. 1).)
Pin citations to docketed materials refer to the CM/ECF page numbers electronically stamped at the top of each page. --------
On June 16, 2016, Plaintiff filed an action against Defendants in this Court, alleging infringement of United States Patent No. 9,207,164 B2 (the '164 Patent). (See generally Compl., ECF No. 1.) Plaintiff explains that the two actions involve related patents, the same accused products, and the same parties:
The '164 patent and '381 patent are part of the same patent family and have substantially identical specifications. The accused products in the present action are the same saliva collection devices that are accused in the Delaware Action. The parties in the Delaware Action and the action before this Court are the same.(Ex Parte Mot. 2-3, ECF No. 39.)
On June 21, 2016, Plaintiff filed a motion for a preliminary injunction. (See generally ECF No. 12.) Defendants filed a motion to stay pending inter partes review on July 21, 2016. (See generally ECF No. 30.)
ANALYSIS
Plaintiff asks the Court for permission to use discovery from the Delaware Action in this case. (See Ex Parte Mot. 2, 4, ECF No. 39.) Specifically, Plaintiff wishes to use discovery from the Delaware Action in its reply memorandum in support of its motion for a preliminary injunction to bolster its argument that it is likely to suffer irreparable harm as a result of Defendants' ongoing infringement. (See id. at 3.) Plaintiff argues that "[u]tilizing discovery already provided in the Delaware Action falls squarely within this Court's authority to manage its docket in order to obtain inexpensive and speedy results." (Id. at 5.) Plaintiff also promises to honor the Outside Counsel Eyes Only designation of the Delaware Action discovery and has no objection to Defendants filing a surreply brief. (Id.)
Defendants oppose Plaintiff's Ex Parte Motion on the grounds that "Plaintiff could easily have asked to use this additional discovery at any time before it filed its motion here, before Defendants conducted extensive discovery, or, indeed, before Defendants filed their opposition [to the preliminary injunction motion]." (Opp'n 7, ECF No. 40.)
The Court agrees with Defendants that Plaintiff's request is untimely. See, e.g., Peregrine Semiconductor Corp. v. RF Micro Devices, Inc., No. 12CV911-IEG WMC, 2012 WL 2068728, at *7 (S.D. Cal. June 8, 2012) ("[I]t is not proper for a party to submit new evidence in a reply brief.") (citing Docusign, Inc. v. Sertifi, Inc., 468 F. Supp. 2d 1305, 1307 (W.D. Wash. 2006)). Accordingly, the Court DENIES Plaintiff's Ex Parte Motion.
CONCLUSION
In light of the foregoing, the Court DENIES Plaintiff's Ex Parte Motion. (ECF No. 39.)
IT IS SO ORDERED. Dated: August 11, 2016
/s/_________
Hon. Janis L. Sammartino
United States District Judge