Case 1:19-cv-01028-CFC-SRF Document 41 Filed 10/31/19 Page 1 of 6 PageID #: 486
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELA WARE
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`F'REAL FOODS, LLC,
`
`Plaintiff,
`
`v.
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`WELBILT, INC.,
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`Defendant.
`
`Civil Action No. 19-1028-CFC
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`MEMORANDUM ORDER
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`Defendant Welbilt, Inc. has moved to stay this patent case until the
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`resolution of a parallel patent case filed in the Southern District of Florida. D.I. 21.
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`1.
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`Plaintifffreal Foods, LLC filed this suit against Welbilt on June 3,
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`2019, alleging infringement of U.S. Patent Nos. 7,144,150 (the "#150 patent") and
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`7,520,662 (the "#662 patent"). Three days later, fReal filed in the Southern
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`District of Florida a patent case against Welbilt's business partner, Fresh Blends
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`North America, Inc., alleging infringement of the same patents. See /'real foods,
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`LLC v. Fresh Blends North America, Inc. No. 19-cv-80744 (S.D. Fla.). The
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`product currently accused of infringement in the Fresh Blends action, the Fresh
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`Blender®, is essentially identical to the Multiplex FreshBlender®, one of the three
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`accused products in this case. Welbilt is the designer and manufacturer of both the
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`Fresh Blender® and the Multiplex FreshBlender®.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF DELA WARE
`
`F'REAL FOODS, LLC,
`
`Plaintiff,
`
`v.
`
`WELBILT, INC.,
`
`Defendant.
`
`Civil Action No. 19-1028-CFC
`
`MEMORANDUM ORDER
`
`Defendant Welbilt, Inc. has moved to stay this patent case until the
`
`resolution of a parallel patent case filed in the Southern District of Florida. D.I. 21.
`
`1.
`
`Plaintifffreal Foods, LLC filed this suit against Welbilt on June 3,
`
`2019, alleging infringement of U.S. Patent Nos. 7,144,150 (the "#150 patent") and
`
`7,520,662 (the "#662 patent"). Three days later, fReal filed in the Southern
`
`District of Florida a patent case against Welbilt's business partner, Fresh Blends
`
`North America, Inc., alleging infringement of the same patents. See /'real foods,
`
`LLC v. Fresh Blends North America, Inc. No. 19-cv-80744 (S.D. Fla.). The
`
`product currently accused of infringement in the Fresh Blends action, the Fresh
`
`Blender®, is essentially identical to the Multiplex FreshBlender®, one of the three
`
`accused products in this case. Welbilt is the designer and manufacturer of both the
`
`Fresh Blender® and the Multiplex FreshBlender®.
`
`
`
`Case 1:19-cv-01028-CFC-SRF Document 41 Filed 10/31/19 Page 2 of 6 PageID #: 487
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`2.
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`On August 16, 2019, the Florida court set a trial date of April 23,
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`2020 for the Fresh Blends action.
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`3. Welbilt moved to intervene in the Fresh Blends action. freal opposed
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`that motion and filed a motion to stay the Fresh Blends action pending the
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`resolution of this case. D.I. 32, Ex. 4. freal argued in support of its motion that a
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`stay "would promote litigation and judicial economy [ ] by ensuring that the issues
`
`of infringement and invalidity, as to the accused product and the asserted patents,
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`are not unnecessarily tried twice in duplicative litigation," D.I. 32, Ex. 4 at 8; that a
`
`stay "would significantly simplify[ ] the issues to be tried in this district or moot[ ]
`
`them altogether," id.; and that "no party will be prejudiced by a stay of this action,"
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`id. Counsel for f real also represented to the Florida court that he "expect[ ed]" this
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`Delaware case "to proceed expeditiously, with a trial in the fall of 2020." /d. 1
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`Finding that "ifwe are going to have a patent infringement action, it makes sense
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`for the manufacturer of the device to be in [the case]," the Florida court granted
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`Welbilt's motion to intervene on September 11, 2019. D.I. 28, Ex. 5 at 13. The
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`court denied that same day freal's motion to stay, noting that "we try in this
`
`1 This representation is troubling. Counsel has appeared on numerous occasions in
`this Court and has worked closely with Delaware counsel. It is simply not credible
`that counsel could have expected a fall 2020 trial date for this case, when the case
`was filed in June 2019.
`
`2
`
`
`
`Case 1:19-cv-01028-CFC-SRF Document 41 Filed 10/31/19 Page 3 of 6 PageID #: 488
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`district to have [ ] fairly accelerated schedules" and "our schedule [in this case] is
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`set." D.I. 32, Ex. 5 at 10.
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`4.
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`5.
`
`On September 27, 2019, Welbilt filed its motion to stay in this case.
`
`I held a scheduling teleconference for this case on October 7, 2019.
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`Welbilt made the reasonable request during the teleconference that I defer setting a
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`schedule until I had ruled on its stay motion. But since I had the parties on the
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`line, I decided to go ahead and set a schedule that day; and I gave the parties the
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`earliest dates available on the Court's calendar for a Markman hearing (May 13,
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`2020) and trial (March 15, 2021). Mindful, however, of the April 2020 trial date in
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`the Fresh Blends action; and not wishing to expend unnecessarily scarce judicial
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`resources; I told the parties I would do my best to address the stay motion
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`expeditiously once the parties completed their briefing on the motion. The briefing
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`is now complete.
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`6. Whether or not to stay litigation is a matter left to the Court's
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`discretion. See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1426-27 (Fed.Cir.1998). In
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`exercising this discretion, the Court must weigh the competing interests of the
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`parties and attempt to maintain an even balance. See Landis v. N. Am. Co., 299
`
`U.S. 248,255 (1936). The factors courts typically consider in deciding how to
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`exercise this discretion include: (1) whether a stay will simplify the issues and trial
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`of the case, (2) whether discovery is complete and a trial date has been set, and (3)
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`3
`
`
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`Case 1:19-cv-01028-CFC-SRF Document 41 Filed 10/31/19 Page 4 of 6 PageID #: 489
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`whether a stay would unduly prejudice or present a clear tactical disadvantage to
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`the non-moving party. See, e.g., Kaavo Inc. v. Cognizant Tech. Sols. Corp., 2015
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`WL 1737476, at* 1 (D. Del. Apr. 9, 2015); Enhanced Sec. Research, LLC v. Cisco
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`Sys., Inc., 2010 WL 2573925, at *3 (D. Del. June 25, 2010).
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`7.
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`In this case, all three factors weigh strongly in favor of a stay. First,
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`a stay will simplify the issues and trial of this case. If, for example, the Fresh
`
`Blends action results in a determination that the asserted patents are invalid, this
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`entire case would be resolved, because freal would be collaterally estopped from
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`relitigating invalidity. See Blonder-Tongue Labs., Inc. v. University of Illinois
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`Found., 402 U.S. 313,350 (1971). Welbilt would similarly be precluded from
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`relitigating in this case any invalidity defenses it litigated and lost in the Fresh
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`Blends action. Cf Orexo AB v. Actavis Elizabeth LLC, 371 F. Supp. 3d 175, 187 n.
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`7 (D. Del. 2019). Infringement issues would also be simplified since both sides
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`would be collaterally estopped from litigating in this case whether the Multiplex
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`FreshBlender®, which Welbilt concedes is essentially identical to the Fresh
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`Blender®, infringes the asserted patents. And claim construction in this case
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`would be simplified because both sides would be collaterally estopped from
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`relitigating the claim construction positions they present in the Fresh Blends
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`Markman hearing scheduled to occur less than a month from now.
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`4
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`
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`Case 1:19-cv-01028-CFC-SRF Document 41 Filed 10/31/19 Page 5 of 6 PageID #: 490
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`8.
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`Second, discovery in this case has barely begun and Plaintiff's
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`infringement contentions are not due until November 6, 2019. By contrast,
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`briefing on claim construction is already underway in the Fresh Blends action and
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`the parties are following a discovery calendar that will enable them to try that case
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`in April 2020-a month before the Markman hearing scheduled in this case.
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`9.
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`Third, neither party would be prejudiced by a stay. F'real claims that
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`a stay will cause it prejudice because Welbilt is a direct competitor and a stay will
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`"fore[ e] f'real to wait at least until April 2020 to start/re-start the process of
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`obtaining relief (including injunctive relief) against Welbilt and with respect to the
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`serious counterclaims Welbilt is asserting in this action." D.I. 31 at 6. But a stay
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`here does not preclude f'real from seeking injunctive relief against Welbilt in the
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`Florida court since Welbilt is a party in the Fresh Blends action. Moreover,
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`Welbilt has asked for a stay of this entire case and therefore its "serious
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`counterclaims" will be stayed. Finally, a delay until April 2020 cannot reasonably
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`be characterized as a prejudicial given that this Court's busy docket will not allow
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`for a Markman hearing before May 2020 or trial before March 2021. If f'real truly
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`wants expeditious resolution of its claims ( and any invalidity counterclaims or
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`defenses maintained by Welbilt), it is much better served by being in a Florida
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`court that is able-and, based on the words of the Florida judge, determined, see
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`D.I. 32, Ex. 5 at 10-to try the Fresh Blends action next April.
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`5
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`
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`Case 1:19-cv-01028-CFC-SRF Document 41 Filed 10/31/19 Page 6 of 6 PageID #: 491
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`10.
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`In sum, the very arguments freal made in support of its stay motion in
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`the Fresh Blends action warrant a stay of this action. A stay here will "promote
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`litigation and judicial economy [ ] by ensuring that the issues of infringement and
`
`invalidity, as to the accused product and the asserted patents, are not unnecessarily
`
`tried twice in duplicative litigation," D.I. 32, Ex. 4 at 8; "significantly simplify[ ]
`
`the issues to be tried in this district or moot[ ] them altogether," id.; and "no party
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`will be prejudiced by a stay of this action," id.
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`WHEREFORE, considering the relevant factors, and exercising my
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`discretion to formulate a proper case-specific resolution, Welbilt's motion to stay
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`(D.I. 21) is GRANTED.
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`October 31, 2019
`
`Honorable Colm F. Conno)'
`United States District Judge
`District of Delaware
`
`6
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`
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