Case 3:20-cv-05784-BRM-DEA Document 28 Filed 07/29/20 Page 1 of 4 PageID: 750
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`Arnold B. Calmann
`(973) 645-4828
`abc@saiber.com
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`July 29, 2020
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`BY CM/ECF
`The Honorable Douglas E. Arpert, U.S.M.J.
`United States District Court
`Clarkson S. Fisher Federal Building
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`402 East State Street
`Trenton, New Jersey 08608
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`Re: Oanda Corporation v. Gain Capital Holdings, Inc., et al.
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`Civil Action No. 20-05784-BRM-DEA
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`Dear Judge Arpert:
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`We, along with our co-counsel, Wilson Sonsini Goodrich & Rosati P.C., represent
`Defendants GAIN Capital Holdings, Inc. and GAIN Capital Group, LLC (collectively, “GAIN”), in
`the above matter. We are compelled to respond to Plaintiff’s letter dated June 24, 2020 (ECF No.
`26), resurrecting Plaintiff’s premature requests to conduct a meeting of the parties pursuant to Rule
`26(f), Fed. R. Civ. P.
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`For the following reasons, and consistent with practice before this Court (which Plaintiff
`repeatedly avoids), Plaintiff’s request should be deferred until Your Honor has set a Rule 16
`Conference date and the scheduling for submission of a Joint Discovery Plan (“JDP”), and
`considers GAIN’s pending Motion to Dismiss (ECF No. 24) as well as the impact thereof.
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`Plaintiff’s History of Questionable Practices and Failures to Disclose
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`Plaintiff’s letter provides half the story, misstates the facts and fails to disclose relevant facts
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`to Your Honor. Plaintiff boldly asserts that GAIN “steadfastly refuse[d] to participate in a Rule
`26(f) conference or otherwise engage in discovery,” and “simply ignor[ed] the requests.” (ECF No.
`26 at 1). Those assertions are indisputably wrong, as we will demonstrate.
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`Ordinarily, we would simply respond to Plaintiff’s wrongful assertions and happily rely
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`upon Your Honor’s resolution of this issue, but this is not the first time that Plaintiff has relied upon
`self-created arguments and misstatements of fact. Thus, a more fulsome response for this Court’s
`consideration of Plaintiff’s latest improper efforts in context is warranted:
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`From the commencement of this action, Plaintiff has acted questionably. Shortly after being
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`served, GAIN’s in-house counsel sought Plaintiff’s consent for a 30-day extension of time to
`respond to the Complaint. As in nearly all of our cases in the patent and intellectual property field,
`indeed in nearly all cases of any type, an adversary ordinarily provides the courtesy of such an
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`Case 3:20-cv-05784-BRM-DEA Document 28 Filed 07/29/20 Page 2 of 4 PageID: 751
`Honorable Douglas E. Arpert, U.S.M.J.
`July 29, 2020
`Page 2
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`extension. Here, however, Plaintiff’s counsel attempted to manipulate the situation and take unfair
`advantage of GAIN’s in-house counsel’s unfamiliarity with the Local Civil Rules. Plaintiff
`attempted to make it appear that it was being somewhat cooperative and generous by seemingly
`agreeing it “will consent to a 14 day extension of time, but will not agree to further extensions.”
`(Emphasis added). (See Email from A. Calmann to E. Dykema dated 5/26/20, Ex. A). That response
`was pretextual with Plaintiff offering the proverbial “hole in the donut.” Unbeknownst to GAIN’s
`in-house counsel, Plaintiff’s counsel was attempting to extract something by offering nothing as
`GAIN could have easily obtained for itself a 14 day extension through the standard procedures of
`the Clerk’s Office. L. Civ. R. 6.1(b).
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`Such conduct is not consistent with practice before this Court, and lacks fundamental
`fairness. Plaintiff failed to report those events to Your Honor in its effort to dissuade Your Honor
`from granting GAIN’s request for a second modest extension of time to respond. Ultimately, Your
`Honor rejected Plaintiff’s objections, and granted the requested extension. (ECF No. 18).
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`Plaintiff’s Misstatements of Facts and Continued Failures to Disclose to the Court
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`Plaintiff’s questionable practices continued with respect to its efforts to prematurely meet
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`and confer regarding development of a JDP. On June 12, well before GAIN was able to complete its
`investigation or develop its defenses or reach a decision whether a motion rather than an answer
`would be an appropriate response to the Complaint, and critically before issue was even joined,
`Plaintiff’s counsel requested an immediate “meet and confer” to negotiate the JDP. But what would
`be the point of holding a meet and confer to discuss only one side of the case? The entire idea was
`not only premature, but inconsistent with practice in our experience.
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`In counsel’s experience, we have never been in a case where a party insisted upon a meet
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`and confer to prepare a JDP before issue was joined. The reasons for that are plain—after the
`pleadings are closed, the parties are on equal footing in evaluating respective claims, positions,
`counterclaims if any, and defenses, and can respond to the issues requiring attention in a JDP, e.g.,
`what type of discovery is needed, and whether motions are contemplated, or whether any of the
`Local Patent Rules will need to be adjusted. In light of those practical imperatives, we repeatedly
`informed Plaintiff that “[o]nce the Court issues its Rule 16 Scheduling Order, and [GAIN has] the
`benefit of that Order, [GAIN] of course will meet and confer with [Plaintiff] regarding a Joint
`Discovery Plan.” (ECF No. 27 at 6; see also ECF No. 27 at 2-4).
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`At no time has GAIN “ignored” Plaintiff’s untimely pressing for a meeting. At no time has
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`GAIN “steadfastly refuse[d]” to have such a meeting. The written communications between the
`parties reveal exactly the opposite—GAIN expressly stated it would be willing to meet and confer
`with Plaintiff at the appropriate time consistent with the Rules of this Court, the setting of the Rule
`16 conference and joinder of issue, all standard steps to conduct a meaningful meet and confer.
`Plaintiff’s present application completely fails to disclose to Your Honor the multiple
`communications that directly belie Plaintiff’s representations to the Court.
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`Although GAIN reasonably explained multiple times to Plaintiff why the parties should
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`await Your Honor’s Order scheduling the Rule 16 Conference, and GAIN’s filing of a response to
`the Complaint, Plaintiff persisted in its efforts to prematurely conduct a meet and confer on a JDP
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`Case 3:20-cv-05784-BRM-DEA Document 28 Filed 07/29/20 Page 3 of 4 PageID: 752
`Honorable Douglas E. Arpert, U.S.M.J.
`July 29, 2020
`Page 3
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`and thereby undercut GAIN’s ability to complete its investigation, develop its defenses, and
`consider a potential motion.
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`Plaintiff’s Application is Contrary to the Local Civil Rules, and GAIN is
`Prepared to Timely Meet and Confer Consistent with the Status of the Case
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`First, Plaintiff fails to recognize that L. Civ. R. 26.1(b)(2) states that the parties must confer
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`“at least 21 days before the initial scheduling conference,” and L. Civ. R. 16.1(a)(1) states “[t]he
`initial conference shall be scheduled within 60 days of filing of an initial answer, unless deferred by
`the Magistrate Judge due to the pendency of a dispositive or other motion.” (Emphasis added).
`Taken together, there is no rule or procedure in our District that requires a meet and confer for the
`purposes of developing a JDP take place as early as Plaintiff is asserting. It is within the Court’s
`discretion to defer a Rule 16 Conference “due to the pendency of a dispositive or other motion.” L.
`Civ. R. 16.1(a)(1); Estate of Richard Bard & Dan German-Bunton v. City of Vineland, Case No.
`1:17-cv-01452-NLH-AMD, 2018 U.S. Dist. LEXIS 121528, at *12 (D.N.J. July 20, 2018) (relying
`on Rule 16.1(a)(1) in declining to set a Rule 16 Conference “because the unidentified John Doe
`officers have not filed an Answer.”).
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`Here, GAIN filed a Motion to Dismiss Plaintiff’s Complaint for failure to state a claim in
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`lieu of filing an Answer. Plaintiff has not responded to GAIN’s Motion as yet, and once the briefing
`has concluded, the parties will be awaiting Judge Martinotti’s decision on the Motion. We submit
`that deferring the initial meeting of the parties regarding a JDP is appropriate because Judge
`Martinotti’s decision on Defendant’s Motion to Dismiss could materially affect the need for or
`scope of discovery.
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` If Judge Martinotti grants Defendant’s Motion in whole, then this matter will be dismissed
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`and no discovery will be necessary. If the motion is granted, in part, or if Plaintiff is permitted to
`amend its Complaint to cure the many deficiencies, then discovery will be limited to Plaintiff’s
`surviving and/or amended claims, none of which is (or can be) known at this time. Indeed, GAIN
`has contended in its Motion to Dismiss that Plaintiff has failed to identify by product name any
`accused products, and Plaintiff has yet to respond to GAIN’s arguments. Thus, having a proper
`identification of the accused products actually at issue is necessary to develop a JDP.
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`Second, assuming the Court denies GAIN’s motion, then GAIN will file its Answer, and
`discovery pertaining to any defenses or counterclaims is indiscernible at this point. Awaiting until
`issue is joined to meet and confer makes sound practical sense because otherwise, as we noted to
`Plaintiff, the parties would be meeting and conferring in a vacuum with only Plaintiff’s vague
`allegations at issue, and as set forth in the Motion to Dismiss, such allegations are insufficient as
`they fail to even identify by product name any accused products.
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`An answer to properly pleaded claims and the assertion of defenses to the same would
`inform the issues for a meet and confer, and the nature of discovery in the case – exactly why
`having such a meeting prior to issue being joined would be premature, of little assistance and a
`wasteful expenditure of time and effort. See Conway v. Davis, Case No. 1:16-cv-04511-NLH-
`AMD, 2018 U.S. Dist. LEXIS 47866, at *9 n.5 (D.N.J. Mar. 23, 2018) (finding defendant had no
`obligation to participate in formal discovery process during the pendency of his Rule 12(b)(1)
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`Case 3:20-cv-05784-BRM-DEA Document 28 Filed 07/29/20 Page 4 of 4 PageID: 753
`Honorable Douglas E. Arpert, U.S.M.J.
`July 29, 2020
`Page 4
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`motion because such motion does not constitute an answer, stating “the discovery process does not
`begin until after the initial scheduling conference, which is triggered by a defendant filing his
`answer to plaintiff’s complaint.”). Meet and confers prior to joinder of issue have never been held in
`our experience, not even once in all the years that counsel herein has practiced before this Court,
`which we submit is because parties ordinarily recognize the need to have joinder of issue so that
`those issues can be fairly discussed at the meet and confer instead of one party trying desperately to
`get the jump on the other, as Plaintiff is attempting here.1
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`In sum, based on the potential effect Judge Martinotti’s pending decision will have on
`discovery and the case generally, and the fact that there is no pending record upon which to evaluate
`the issues encompassed in a JDP (e.g., with no Answer having been filed as yet, there are no
`defenses or counterclaims to evaluate for discovery purposes), the prospect of the parties attempting
`to map out and agree on a discovery plan is premature, and would result in a discovery plan
`conceived in speculation and conjecture. Moreover, any discovery plan entered at this time will
`invariably be subject to revision once a decision on GAIN’s Motion is rendered and, if necessary,
`GAIN has answered the Complaint.
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`Therefore, we respectfully submit that it is in the best interest of the parties and the Court
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`that the initial meeting of the parties be deferred until the Court has decided GAIN’s Motion to
`Dismiss, and Your Honor has entered an Order setting the Rule 16 conference. Accordingly, we
`request that Your Honor deny Plaintiff’s application.
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`We thank the Court for its consideration and assistance in this matter.
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`Arnold B. Calmann
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`ABC/kae
`cc:
`Counsel of record (by CM/ECF)
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`1 Plaintiff conveniently argues delay and prejudice when it suits itself. ECF No. 26 at 2. As
`explained in GAIN’s Motion to Dismiss (Br., ECF No. 24-1 at 3), it was Plaintiff who dragged its
`feet with respect to this action. One of Plaintiff’s asserted patents issued in 2006, but yet it waited
`until October 2018 to notify GAIN of alleged infringement of the patents. After GAIN initially
`engaged in discussions with Plaintiff in late 2018, Plaintiff was silent for more than a year before
`bringing this action in May 2020. Plaintiff is not seeking any preliminary injunctive relief in this
`case that would warrant any emergency relief. There is no delay by GAIN or prejudice here.
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