Case 2:12-cv-02767-JPM-tmp Document 96 Filed 10/11/18 Page 1 of 4 PageID 967
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`Case No. 2:12-cv-02767-JPM-tmp
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`Hon. Jon Phipps McCalla
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`)))))))))))
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`v.
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`AMAZON DIGITAL SERVICES, INC.,
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`Defendant.
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`RESPONSE OF AMAZON DIGITAL SERVICES, INC. TO LETTER
`DATED SEPTEMBER 24, 2018 FROM B.E. TECHNOLOGY, LLC (DKT. NO. 95)
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`Defendant Amazon Digital Services, Inc. (“Amazon”) respectfully submits this response
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`to the September 24, 2018 letter sent by Martin David Hoyle, President and CEO of B.E. Tech-
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`nology, LLC (“B.E.”).1 In that letter, B.E. seeks a dismissal without prejudice of its remaining
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`claim on U.S. Patent No. 6,141,010 (the “’010 patent”) so that it can secure new counsel and re-
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`file its case, or, in the alternative, an additional 90 days to secure such counsel.2 (Dkt. No. 95.)
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`The Court should deny B.E.’s request, and instead dismiss this case with prejudice for failure to
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`prosecute. This Court has the inherent power to do so sua sponte “in order to prevent undue de-
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`lays in the disposition of pending cases and to avoid congestion.” Link v. Wabash R.R. Co., 370
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`U.S. 626, 629-30 (1962); see also Marchand v. Smith & Nephew, No. 11-2621-STA-CGC, 2013
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`1 Amazon interprets this letter as a pro se motion, and accordingly submits this response op-
`posing the relief sought in the letter.
`2 B.E. also asserts in this case U.S. Patent No. 6,771,290 (the “’290 patent”), which was
`found to be unpatentable by the Patent Trial and Appeal Board in decisions affirmed by the Fed-
`eral Circuit. B.E. Tech., L.L.C. v. Sony Mobile Commc’ns. (USA) Inc., 657 F. App’x 982, 990
`(Fed. Cir. 2016). There is no dispute that B.E.’s claim of infringement of the ’290 patent should
`be dismissed as moot. See, e.g., B.E. Technology, L.L.C. v. Facebook, Inc., Case No. 2:12-cv-
`02769, Dkt. No. 88 at 1 (W.D. Tenn. Dec. 20, 2017).
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`1
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`Case 2:12-cv-02767-JPM-tmp Document 96 Filed 10/11/18 Page 2 of 4 PageID 968
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`WL 6780559, at *2 (W.D. Tenn. Dec. 19, 2013) (similar). The Court can also dismiss a case
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`with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
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`The Court should exercise its power and dismiss this case with prejudice because B.E.
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`has engaged in inexcusable prosecutorial delay. Although this case was stayed with B.E.’s
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`agreement while the PTAB reviewed two of its patents,3 the PTAB decisions and the subsequent
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`appeals of those decisions concluded 26 months ago. B.E. Tech., L.L.C., 657 F. App’x at 990.
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`B.E. made no effort, either at that time or at any time thereafter, to prosecute its remaining claim,
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`despite Amazon’s repeated requests seeking B.E.’s plans for doing so. (See Dkt. No. 84 at 2
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`n.1.)
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`The Court warned B.E. twice that its case could be dismissed if it did not attempt to move
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`it forward. The Court did so the first time when, on January 19, 2018, it issued an order to show
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`cause why the case should not be dismissed as moot after B.E. failed to take any action to lift the
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`stay in this case for two years following the completion of the PTAB reviews and related ap-
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`peals. (Dkt. No. 82.) B.E. avoided dismissal at that time because it represented to the Court that
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`it wanted to pursue its remaining claim against Amazon on the ’010 patent. (Dkt. No. 83.) The
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`Court told B.E. the second time that this case could be dismissed when, on August 30, 2018 it
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`ordered B.E. to secure new counsel to prosecute its claims within 28 days. (Dkt. No. 92.) B.E.
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`did not do so; instead it sent a letter citing as an excuse its inability to “obtain[] the financial re-
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`sources and/or secur[e] a law firm willing to engage in the representation on an alternative fee
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`arrangement.” (Dkt. No. 95.)
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`But B.E. had many more than 28 days to secure such counsel. It knew as of at least Oc-
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`tober 2017—over a year ago—that it needed to do so, when its original counsel informed it of its
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`3 See Case No. 2:12-cv-02825, Dkt. No. 66-1 at 5.
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`2
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`intention to terminate the representation. (See Dkt. No. 88.) It did not do so then. It did not do
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`so even since January of this year—nearly 10 months ago—when it represented to the Court that
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`it intended to pursue its remaining claim against Amazon. B.E. has had ample opportunity to
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`secure new counsel and to advance this case.4 B.E.’s failure to prosecute its case demonstrates a
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`“clear record of delay” and that B.E. “is inexcusably unprepared to prosecute the case.” Jones v.
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`Makowsky, Ringel, & Greenberg Properties, No. 14-CV-2961-SHM-DKV, 2015 WL 5334203,
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`at *2 (W.D. Tenn. July 23, 2015), report and recommendation adopted, 2015 WL 5334221
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`(W.D. Tenn. Sept. 14, 2015) (citation omitted).
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`Importantly, this is not a case where the failure to secure counsel requires special leni-
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`ence from the Court or any deviation from the straightforward consequences of failing to prose-
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`cute claims one filed. B.E. is not an indigent, politically unpopular, or socially disadvantaged
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`party that would face difficulty obtaining access to legal representation. It is a patent assertion
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`entity asserting a claim for patent infringement, for which two separate and thriving industries—
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`contingency fee legal services and litigation finance—clamor daily for the opportunity to prose-
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`cute cases of even the most marginal plausibility. Accordingly, there could be only two reasons
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`why B.E. has for over a year been unable to find counsel or a party willing to finance its efforts:
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`either B.E. has been culpably dilatory in seeking this assistance or the parties who could assist
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`B.E. have made a determination that the claim B.E. asserts in this case has insufficient merit.
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`Indeed, Amazon already moved to dismiss B.E.’s claims under Fed. R. Civ. P. 12(b)(6) for fail-
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`ure to comply with the rule against functional claiming and for violating the possession rule.
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`(Dkt. No. 32-1.) Should this case resume, that motion—which was fully briefed with the full
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`participation of B.E.’s former counsel—will dispose of B.E.’s claim on the merits. Accordingly,
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`4 Having inexcusably failed to secure counsel for a year, there is no reason to think B.E. will
`be able to do so if given the 90-day extension it seeks in the alternative.
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`3
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`if the Court declines to dismiss B.E.’s remaining claim with prejudice for failure to prosecute,
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`Amazon respectfully requests that the Court resolve the Rule 12 motion, which is ripe for resolu-
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`tion.
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`Respectfully submitted,
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`Of counsel:
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`J. David Hadden
`Email: dhadden@fenwick.com
`Saina S. Shamilov
`Email: sshamilov@fenwick.com
`Ravi R. Ranganath
`Email: rranganath@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone: 650.988.8500
`Facsimile: 650.938.5200
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`
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`By: /s/ Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr. (#06389)
`mvorder-bruegge@wyattfirm.com
`Glen Reid, Jr. (#8184)
`greid@wyattfirm.com
`WYATT, TARRANT & COMBS, LLP
`6070 Poplar Avenue, Suite 300
`Memphis, TN 38119
`Phone: 901-537-1069
`Fax: 901-537-1010
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`Counsel for Defendant
`AMAZON DIGITAL SERVICES,
`INC.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on October 11, 2018; and that a copy has been
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`served on plaintiff, pro se, by both electronic mail and U.S. Mail on the same date.
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`/s/ Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr.
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`4
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