Case 1:16-cv-00453-RGA Document 192 Filed 06/23/17 Page 1 of 3 PageID #: 21295
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`Civil Action No. 16-453-RGA
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`MEMORANDUM ORDER
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`Defendant has filed a motion to dismiss and for sanctions for violations of Rule 11. (D .I.
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`49). The motion has been briefed. (D.I. 50, 68, 79).
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`The basis for the motion is the supposition that Plaintiff did not conduct a proper pre-
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`filing investigation, which Defendant mostly infers from the lack of merit of Plaintiffs case.
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`Both sides have submitted briefs that read in part like summary judgment briefs, but I do not
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`think the case is properly teed up for a summary judgment ruling, and therefore I decline to treat
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`the motion as such. Cf HBAC Matchmaker Media, Inc. v. CBS Interactive Inc., No. 13-428-
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`SLR-SRF, D.I. 42, pp. 4-5 (D.Del. Nov. 18, 2013) (declining to engage in early claim
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`construction on a Rule 11 motion).
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`There only remains, for the present, the question of whether Plaintiff engaged in a
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`reasonable pre-filing investigation. Plaintiff has submitted various declarations in support of its
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`opposition to the motion. Plaintiff has offered to submit various documents in camera. In
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`particular, it has offered to submit a "detailed pre-filing memorandum" and testing by a
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`Case 1:16-cv-00453-RGA Document 192 Filed 06/23/17 Page 2 of 3 PageID #: 21296
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`memorandum" and testing by a consultant. 1 (D.I. 68 at pp. 1, 16). Plaintiffs "counsel of
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`record," who I believe is "lead counsel," states that "Acceleration Bay's counsel prepared a
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`detailed pre-filing memorandum based on their investigation and [an expert's] analysis." (D.I.
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`71,, 4). 2 Defendant's well-qualified expert submitted a declaration stating that both before the
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`filing of the "2015 case" and after receiving discovery in that case (and, therefore, I presume,
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`before the filing of the "2016 case"), his opinion is that the accused products infringe. (D.1. 70).
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`I do not think a Rule 11 motion converts a case into a summary judgment motion. Cf Safe-Strap
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`Co. v. Koala Corp., 270 F.Supp.2d 407, 417 (S.D.N.Y. 2003) ("In assessing whether Rule 11
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`sanctions should be imposed, the court does not judge the merits of an action .... Rather, the
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`1 I do not think it is necessary that I examine attorney-client and/or work product
`protected materials in the middle of a case in order to consider a motion that I consider to be
`rebutted by the declarations submitted. I consider it enough, at this point, that I have a factual
`basis for concluding that such work was done.
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`2 When I read the briefs, one of the things that troubled me was Defendant's assertions
`that appeared to be an allegation that lead counsel had lied. (D.I. 79, p.2). Although the nature
`of the briefing as a whole made me dubious of the merits of Defendant's motion, my attention
`was caught by the prospect of a lying lawyer. Defendant's accusation was that lead counsel
`declared, "Acceleration Bay's counsel carefully evaluated and relied upon the additional
`evidence of Activision's infringement discussed above." Describing an event occurring at a later
`time, however, "Acceleration [Bay's] counsel represented that [lead counsel} had not reviewed
`the source code produced by Activision or consulted with those who had." (Id. (italics in
`original)). The suggestion being, that lead counsel had told two opposite stories, at least one of
`which was under oath. Not so. First, in lead counsel's declaration, he repeatedly refers to
`"Acceleration Bay's counsel" without specifying which counsel he is talking about and without
`being sufficiently specific so that he is necessarily included within the term. That may be vague,
`even deliberately so, but that does not mean it can be interpreted to say what it does not say.
`Second, in the email that is the basis for the "other story," which does not even seem to have
`been copied to lead counsel, one of his partners stated, "This is to confirm that [lead counsel] has
`not viewed RESTRICTED CONFIDENTIAL - SOURCE CODE material prior to [the PTAB]
`trial." (D.I. 51-1at640). The portion Defendant cites only supports the italicized portion of the
`allegation. Nothing is cited in support of the rest of the sentence. There does not seem to me to
`be any necessary reason for lead counsel to personally review source code. There is no necessary
`conflict between the two statements. Thus, Defendant's aspersions seem to exceed the bounds of
`legitimate advocacy.
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`Case 1:16-cv-00453-RGA Document 192 Filed 06/23/17 Page 3 of 3 PageID #: 21297
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`court determines 'a collateral issue: whether the attorney has abused the judicial process, and, if
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`so, what sanction would be appropriate."').
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`Thus, I will DENY the motion to the extent it seeks dismissal of the Complaint, and
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`DISMISS as premature both Defendant's motion for sanctions and Plaintiffs cross-motion for
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`sanctions for bringing the Rule 11 motion, with either party being permitted to renew its sanctions
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`motion after there is a decision on the merits. See id. at 421-22.
`IT IS SO ORDERED this 'l.J day of June, 2017.
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`~l:f:t/f?
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