Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`
`
`
`
`BELL NORTHERN RESEARCH, LLC,
`
`
`
`Case No. 1:22-CV-22706-RNS
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`HMD AMERICA, INC., HMD GLOBAL OY,
`SHENZHEN CHIINO-E COMMUNICATION
`CO. LTD., HON HAI PRECISION
`INDUSTRY CO., LTD, TINNO MOBILE
`TECHNOLOGY CORP., SHENZHEN TINNO
`MOBILE CO., LTD., TINNO USA, INC.,
`UNISOC TECHNOLOGIES CO. LTD.,
`SPREADTRUM COMMUNICATIONS USA,
`INC., WINGTECH TECHNOLOGY CO. LTD.,
`WINGTECH INTERNATIONAL, INC.,
`HUAQIN CO. LTD., BEST BUY CO., INC.,
`BEST BUY STORES L.P., TARGET CORP.,
`WALMART INC.,
`Defendants.
`
`
`
`
`
`
`
`
`
`HON HAI PRECISION INDUSTRY CO., LTD’S
`MOTION FOR EXCEPTIONAL CASE STATUS
`
`
`
`
`
`
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`

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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 2 of 19
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`
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`TABLE OF CONTENTS
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`MOTION FOR EXCEPTIONAL CASE STATUS ........................................................................ 1
`I.
`INTRODUCTION .............................................................................................................. 1
`II.
`FACTUAL BACKGROUND ............................................................................................. 2
`A.
`Hon Hai Is Neither Present in Florida, Nor Has Any Involvement With the
`Accused Nokia Products ..................................................................................................... 2
`B.
`BNR’s Repeated Frivolous Allegations .................................................................. 3
`C.
`BNR’s Actual Notice of the Errors in its Allegations............................................. 4
`D.
`BNR Was Unprepared to Respond to the MTD ..................................................... 5
`E.
`Hon Hai Did Substantial Additional Work on the Case ......................................... 6
`F.
`Dismissal of the Claims Against Hon Hai .............................................................. 6
`LEGAL STANDARD ......................................................................................................... 7
`ARGUMENT ...................................................................................................................... 8
`A.
`BNR’s Misconduct Renders This Case Exceptional .............................................. 8
`1. BNR’s allegations were frivolous. ................................................................... 8
`2. BNR’s refusal to dismiss Hon Hai after notice of its faulty allegations was
`objectively unreasonable. ...................................................................................... 10
`3. BNR’s deliberate and continued indifference should be deterred.................. 12
`Hon Hai Is a “Prevailing Party.” ........................................................................... 12
`B.
`CONCLUSION ................................................................................................................. 13
`
`III.
`IV.
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`V.
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`i
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 3 of 19
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Beach Blitz Co. v. City of Miami Beach,
`No. 1:17-cv-23958-UU, 2018 U.S. Dist. LEXIS 165462 (S.D. Fla. Sep. 24,
`2018), aff’d 13 F.4th 1289 (11th Cir. 2021) ............................................................................12
`
`Bell Northern Research, LLC v. HMD America, Inc., et al.,
`No. 22-cv-21035-RNS (S.D. Fla. 2022) ....................................................................................3
`
`Bivens v. v. Ball Healthcare Servs.,
`No. 18-cv-097-CG, 2019 U.S. Dist. LEXIS 10727 (S.D. Ala. Jan. 23, 2019) ........................12
`
`Energy Heating, LLC v. Heat On-The-Fly, LLC,
`15 F.4th 1378 (Fed. Cir. 2021) ..................................................................................................8
`
`F & G Research, Inc. v. Google Inc.,
`No. 06-cv-60905-CMA-WCT, 2007 U.S. Dist. LEXIS 70072
`(S.D. Fla. Sep. 20, 2007) ........................................................................................................7, 9
`
`Kearney v. Auto-Owners Ins. Co.,
`
`422 F. App’x 812 (11th Cir. 2011) ..........................................................................................13
`
`NetSoc, LLC v. Chegg Inc.,
`No. 18-cv-10262-RA, 2020 U.S. Dist. LEXIS 232321
`(S.D.N.Y. Dec. 10, 2020)...................................................................................................10, 12
`
`Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
`572 U.S. 545 (2014) ...............................................................................................................7, 8
`
`Oplus Techs., Ltd. v. Vizio, Inc.,
`782 F.3d 1371 (Fed. Cir. 2015)..................................................................................................8
`
`Shipping & Transit, LLC v. 1A Auto, Inc.,
`283 F. Supp. 3d 1290, 1301 (S.D. Fla. 2017), report and recommendation
`adopted 2017 U.S. Dist. LEXIS 184456 (S.D. Fla. Oct. 18, 2017) .................................8, 9, 12
`
`Taurus IP, LLC v. DaimlerChrysler Corp.,
`726 F.3d 1306 (Fed. Cir. 2013)..................................................................................................1
`
`ThermoLife Int’l LLC v. GNC Corp.,
`922 F.3d 1347 (Fed. Cir. 2019)..................................................................................................7
`
`
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`ii
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 4 of 19
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`Traxcell Techs., LLC v. AT&T Corp.,
`No. 2:17-cv-00718-RWS-RSP, 2022 U.S. Dist. LEXIS 237105
`(E.D. Tex. Dec. 22, 2022) ........................................................................................................11
`
`WPEM, Inc. v. SOTI Inc.,
`No. 2:18-cv-00156-JRG, 2020 U.S. Dist. LEXIS 17449
`(E.D. Tex. Feb. 4, 2020) ..........................................................................................................11
`
`ZT IP, LLC v. VMware, Inc.,
`No. 3:22-cv-0970-BS, 2023 U.S. Dist. LEXIS 19165 (N.D. Tex. Feb. 6, 2023) ....................10
`
`Statutes
`
`15 U.S.C. § 1117 ......................................................................................................................10, 11
`
`35 U.S.C. § 285 ...................................................................................................................... passim
`
`Other Authorities
`
`Federal Rule of Civil Procedure 41(a)(2) ......................................................................................12
`
`Federal Rule of Civil Procedure 54(d)(2)(C) ...................................................................................1
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`
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`iii
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 5 of 19
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`MOTION FOR EXCEPTIONAL CASE STATUS
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`Defendant Hon Hai Precision Industry Co., Ltd. (“Hon Hai”) respectfully moves the Court
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`to declare this twice-filed frivolous case exceptional pursuant to 35 U.S.C. § 285, Federal Rule of
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`Civil Procedure 54(d)(2)(C), and Local Rule 7.3(a). Plaintiff Bell Northern Research, LLC
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`(“BNR”) dragged Hon Hai along for nine months with knowledge that its allegations were
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`frivolous. Sanctions are necessary to provide relief and repose to Hon Hai for BNR’s misconduct.
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`I.
`
`INTRODUCTION
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`This case never should have been filed against Hon Hai. BNR accuses Nokia phones and
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`tablets of infringing 13 patents. Rather than pursue its infringement case against Nokia, BNR
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`targeted deeper pockets. BNR tagged Hon Hai as a defendant along with 15 other unrelated
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`entities, pulling Hon Hai into this case based on nothing more than vague allegations of “aiding
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`and abetting others to infringe.”1 Any simple search would have uncovered that Hon Hai did not
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`belong in this case. But BNR’s frivolous claims alone are not what makes this case exceptional.
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`This case stands out for BNR’s remarkable refusal to dismiss Hon Hai despite repeated
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`notice that its claims were baseless. Time and time again Hon Hai confronted BNR with the
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`irrefutable fact that Hon Hai does not manufacture, use, sell, offer to sale, or import the accused
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`Nokia products anywhere, much less the United States or this District. Indeed, Hon Hai has no
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`relationship with Nokia at all. And time and time again, BNR turned a blind eye to these facts and
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`instead chose to waste the time and resources of Hon Hai and the Court.
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`As the Federal Circuit has instructed, a party “must continually assess the soundness of
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`[its] pending infringement claims.” Taurus IP, LLC v. DaimlerChrysler Corp., 726 F.3d 1306,
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`1328 (Fed. Cir. 2013). The record (as summarized below) makes clear that BNR never
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`1 Dkt. No. 1 at ¶¶ 175, 198, 219, 238, 257, 279, 300, 318, 336, 359, 383.
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`1
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 6 of 19
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`investigated the merits of its Hon Hai allegations when it first filed, nor at any later point in time.
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`A reasonable, good faith plaintiff would have engaged with Hon Hai and accepted its offer to
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`provide evidence confirming that Hon Hai did not belong in this suit. BNR chose not to engage.
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`To the contrary, BNR forced Hon Hai to expend attorney’s fees on a motion to dismiss (that BNR
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`could not legitimately oppose), a motion to stay, conferring on the 26(f) report, negotiating a
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`protective order, preparing to provide discovery on 13 patents, and more. It was only nine months
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`after BNR filed its initial complaint, and when it was up against its deadline to respond to Hon
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`Hai’s motion to dismiss, that BNR finally dismissed Hon Hai.
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`BNR’s deliberate and continued indifference to the infirmity of its claims is the exact type
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`of behavior that 35 U.S.C. § 285 was intended to deter. BNR’s willful refusal to properly engage
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`with Hon Hai (let alone correct its wrongful filings) overburdens the docket with baseless claims,
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`wastefully consuming judicial and party resources that should be focused on valid injuries. BNR
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`must be held accountable.
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`II.
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`FACTUAL BACKGROUND
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`A.
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`Hon Hai Is Neither Present in Florida, Nor Has Any Involvement With the
`Accused Nokia Products
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`As set forth in the motion to dismiss, Hon Hai is an electronics component manufacturer
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`incorporated under the laws of Taiwan, with its principal place of business located in Tucheng
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`Industrial Zone, Tucheng District, New Taipei City, Taiwan. Dkt. No. 78-1 at ¶ 6. Hon Hai does
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`not have contacts with the State of Florida. Id. at ¶ 5. Hon Hai has no offices, facilities,
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`warehouses, stores, agents, or employees in the State of Florida. Id. at ¶ 7. Hon Hai does not own,
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`lease, possess, maintain, or control any real property in the State of Florida. Id. Hon Hai is not
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`presently registered to do business in Florida, does not pay any taxes in Florida, and does not have
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`accounts with any banks or financial institutions in the State of Florida. Id. Hon Hai has no
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`2
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`physical or economic connections to the State of Florida. Id.
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`As to the accused Nokia tables and phones (“Accused Products”), Hon Hai does not make,
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`use, sell, or offer to sell any of the Accused Products to, or on behalf of, Nokia. Id. at ¶ 5. Hon
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`Hai has no involvement in the assembly, distribution, sale, or use of the Accused Products in the
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`United States. Id. at ¶ 15. Even outside the United States, Hon Hai does not oversee or control
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`the making, use, sale, distribution, or offers for sale of any Accused Products. Id. at ¶ 16.
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`BNR’s Repeated Frivolous Allegations
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`B.
`Notwithstanding the above facts, BNR filed not one suit, but two suits against Hon Hai
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`maintaining the same baseless patent infringement allegations. On April 6, 2022, BNR filed the
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`complaint in Bell Northern Research, LLC v. HMD America, Inc., et al., No. 22-cv-21035
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`(the “First Lawsuit,” Dkt. No. 1), targeting Hon Hai and seven other defendants. On August 25,
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`2022, BNR filed the complaint in the instant case (the “Complaint,” Dkt. No. 1), targeting Hon
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`Hai and 15 other defendants. A day later, on August 26, 2022, BNR voluntarily dismissed the
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`First Lawsuit without prejudice. First Lawsuit, Dkt. No. 55.
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`Both complaints contain identical, vague allegations in relation to Hon Hai:
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`Defendant has committed acts of infringement in this District and has a regular and
`established place of business within this District.
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`Complaint at ¶ 24; First Lawsuit, Dkt. No. 1 at ¶ 15.
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`Upon information and belief, each Defendant is subject to this Court’s general and
`specific personal jurisdiction, . . . because each Defendant regularly conducts and solicits
`business within the State of Florida and within this District, and because Plaintiff’s causes
`of action arise directly from each of Defendants’ business contacts and other activities in
`the State of Florida and this District.
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`Complaint at ¶ 35; First Lawsuit, Dkt. No. 1 at ¶ 20.
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`Upon information and belief, each of Chino-E, Hon Hai, Tinno, Unisoc, Wingtech, and
`Huaqin have been aware of the [thirteen asserted patents and their] infringement thereof
`at least as early as the filing of this Complaint.
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`3
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`Complaint at ¶¶ 174, 197, 218, 237, 256, 278, 299, 317, 335, 358, 382; First Lawsuit, Dkt. No. 1
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`at ¶¶ 112, 131, 153, 173, 193, 209, 225, 244, 262, 280, 298, 318, 339.
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`Upon information and belief, since each Defendant had knowledge of the [thirteen
`asserted patents], each Defendant has induced and continues to induce others to infringe
`at least one claim of the [thirteen asserted patents] under 35 U.S.C. § 271(b) by, among
`other things, and with specific intent or willful blindness, actively aiding and abetting
`others to infringe, including but not limited to each of Defendant’s partners, clients,
`customers, and end users, whose use of the Accused Instrumentalities constitutes direct
`infringement of at least one claim of the [thirteen asserted patents].
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`Complaint at ¶¶ 175, 198, 219, 238, 257, 279, 300, 318, 336, 359, 383; First Lawsuit, Dkt. No. 1
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`at ¶¶ 113, 132, 154, 174, 194, 210, 226, 245, 263, 281, 299, 319, 340.
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`Notably, the Complaint does not include any underlying factual allegations supporting its
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`legal conclusion that Hon Hai introduces products and services into the stream of commerce to be
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`sold in Florida, or how Hon Hai actively aids and abets others to infringe. See, e.g., Complaint
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`at ¶ 6. Indeed, there are no facts supporting such allegations. See Dkt. No. 78-1.
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`BNR’s Actual Notice of the Errors in its Allegations
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`C.
`After the First Lawsuit was filed, counsel for Hon Hai contacted BNR to request a
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`teleconference. Angelis Decl. at ¶ 2 (attached hereto as Ex. A). The parties spoke on the phone
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`for the first time on May 11, 2022. Id. During that conversation, Hon Hai’s counsel informed
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`BNR that Hon Hai does not manufacture or sell Nokia phones or tablets. Id. at ¶ 3. BNR did not
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`refute these facts, nor did BNR provide any explanation for the allegations against Hon Hai. Id.
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`On June 27, 2022, counsel for Hon Hai reiterated that it does not manufacture the accused
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`devices, and it should be dismissed. Id. at ¶ 4. BNR did not respond to the email. Id.
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`On August 10, 2022, counsel for Hon Hai again contacted counsel for BNR stating that
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`Hon Hai does not manufacture the accused devices, and it should be dismissed. Id. at ¶ 5.
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`On August 12, 2022, a teleconference was held with counsel of both parties, wherein Hon
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`Hai further pressed for dismissal on the basis that it has no relationship with Nokia. Counsel for
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`BNR did not refute that fact or provide an explanation for the allegations against Hon Hai.
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`Id. at ¶ 6.
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`On August 23, 2022, another teleconference took place with counsel of both parties,
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`wherein Hon Hai again pressed for dismissal because it does not manufacture the accused devices.
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`Counsel for BNR did not refute that fact or provide an explanation for the allegations against Hon
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`Hai.
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`Instead of dismissing Hon Hai, BNR doubled down with verbatim allegations in the instant
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`Complaint, as noted above. As before, when the instant Complaint was filed, counsel for Hon Hai
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`contacted BNR requesting a meet and confer. Nguyen Decl. at ¶ 2 (attached hereto as Ex. B). On
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`October 3, 2022, counsel for the parties held a videoconference, in which Hon Hai further
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`described Hon Hai’s business and lack of presence in Florida. Id. at ¶ 3. Specifically, Hon Hai
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`informed BNR that Hon Hai does not do business in the State of Florida. Id. To avoid the expense
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`of a motion to dismiss, counsel for Hon Hai offered to provide documentation to BNR
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`substantiating that Hon Hai did not have a relationship with Nokia, and the Southern District of
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`Florida lacked personal jurisdiction over Hon Hai. Id. at ¶ 4. Once again, BNR provided no
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`explanation for the allegations being brought against Hon Hai. Id. at ¶ 5. BNR also provided no
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`explanation or plausible basis for jurisdiction in the Southern District of Florida. Id.
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`BNR Was Unprepared to Respond to the MTD
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`D.
`Instead of accepting Hon Hai’s offer of additional documentation, BNR responded that it
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`would wait to see Hon Hai’s motion to dismiss papers. Id. at ¶ 6. Having no other recourse, on
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`December 19, 2022, Hon Hai filed a motion to dismiss for lack of personal jurisdiction. Dkt. No.
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`78. BNR was unprepared to respond to Hon Hai’s motion despite notice as early as April 2022
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`that no jurisdiction existed. Subsequently, BNR twice requested extensions for its response—first
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`to January 24, 2023 (Dkt. Nos. 104, 105), and again until January 31, 2023 (Dkt. Nos. 121, 122).
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`5
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`Ultimately, BNR never filed a response.
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`Hon Hai Did Substantial Additional Work on the Case
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`E.
`Based on the case schedule proposed by BNR, Hon Hai faced the possibility of having to
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`file invalidity contentions on 13 different patents in a matter of weeks. Therefore, Hon Hai did
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`not have the option of sitting idle while BNR dithered. With BNR asking Hon Hai for multiple
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`extensions to respond to the Motion to Dismiss for Lack of Personal Jurisdiction on December 19,
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`2023 (Dkt. No. 78), BNR also effectively forced Hon Hai to devote significant time to the case,
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`e.g., working on: a discovery plan; drafting and seeking agreement on a case schedule; drafting
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`and seeking agreement on a protective order; drafting a Motion to Stay Discovery (Dkt. No. 115);
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`drafting a Motion for an Extension of Time to File the Joint Discovery Plan (Dkt. No. 116);
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`drafting the Joint Scheduling Report (Dkt. No. 120); and drafting pro hac vice motions. All of this
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`additional work took place more than three weeks after Hon Hai’s Motion to Dismiss for Lack of
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`Personal Jurisdiction was filed, when BNR likely knew (but did not disclose) that it would dismiss
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`Hon Hai rather than filing an opposition.
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`Dismissal of the Claims Against Hon Hai
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`F.
`With no basis to oppose Hon Hai’s Motion to Dismiss for Lack of Personal Jurisdiction
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`(Dkt. No. 78), BNR finally informed Hon Hai that it would file a motion for voluntary dismissal.
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`During a teleconference between the parties on January 23, 2023, BNR agreed to provide Hon Hai
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`with a draft of the dismissal motion before filing. Nguyen Decl. at ¶ 6. BNR never provided the
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`draft. Consequently, the motion was presented to the Court as “unopposed,” but it had never been
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`seen by Hon Hai and other defendants.
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`Importantly, BNR (without conferring with Hon Hai) requested that “[e]ach Party to this
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`case shall bear its own costs, expenses, and attorneys’ fees.” Dkt. No. 126 at 2. Hon Hai timely
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`objected to this language, but otherwise consented to the dismissal. Dkt. No. 128. On February 1,
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`6
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`2023, the Court denied the motion as a result of BNR’s failure to abide the conference certification
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`obligations of Local Rule 7.1(a)(3). Dkt. No. 130.
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`On February 3, 2023, BNR again moved to dismiss Hon Hai from the lawsuit without
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`prejudice. Dkt. No. 131. Hon Hai again did not oppose the requested dismissal “but oppose[d]
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`the entry of an order stating ‘that each party shall bear its own costs, expenses, and attorneys’
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`fees.’” Dkt. No. 132, at 1. “After reviewing the motion, the record, and the relevant legal
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`authorities, the Court f[ound] the dismissal proper, but [did] not adopt the opposed terms.” Id.
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`The claims against Hon Hai were thereby dismissed on February 6, 2023. Dkt. No. 132.
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`III. LEGAL STANDARD
`The Patent Act allows a court to grant attorney’s fees to the prevailing party in “exceptional
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`cases.” 35 U.S.C. § 285. “[A]n ‘exceptional’ case is simply one that stands out from others with
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`respect to the substantive strength of a party’s litigating position (considering both the governing
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`law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane
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`Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014) (providing dictionary
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`definition that “exceptional” means “‘uncommon’” or “‘not ordinary’”). The analysis “demands
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`a simple discretionary inquiry; it imposes no specific evidentiary burden.” Id. at 557.
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`“A suit is frivolous where the patentee knew, or should have known by reasonable
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`investigation, that the suit was groundless.” F & G Research, Inc. v. Google Inc., No. 06-cv-
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`60905-CMA-WCT, 2007 U.S. Dist. LEXIS 70072, at *36 (S.D. Fla. Sep. 20, 2007) (citation
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`omitted). “A case is also deemed ‘exceptional’ when a patentee maintains its claims after realizing,
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`or on reasonable investigation should know, that its claims are baseless.” Id. (citation omitted);
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`see also, e.g., ThermoLife Int’l LLC v. GNC Corp., 922 F.3d 1347, 1358 (Fed. Cir. 2019) (“[T]he
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`presence of [early notice of defects in a complaint’s allegations], followed by continuation of
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`litigation, can be a factor in justifying an award of attorney’s fees[.]”). “[W]hile the ‘manner’ or
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`7
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`‘broader conduct’ of litigation is relevant under § 285, the absence of litigation misconduct is not
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`separately of mandatory weight.” Energy Heating, LLC v. Heat On-The-Fly, LLC, 15 F.4th 1378,
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`1384 (Fed. Cir. 2021) (emphasis in original). Rather, “[d]istrict courts may determine whether a
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`case is ‘exceptional’ in the case-by-case exercise of their discretion, considering the totality of the
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`circumstances.” Octane Fitness, 572 U.S. at 545. No independently sanctionable conduct or bad
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`faith is required. Id.
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`The burden of proving exceptionality is merely a preponderance of the evidence. Oplus
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`Techs., Ltd. v. Vizio, Inc., 782 F.3d 1371, 1374 (Fed. Cir. 2015).
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`IV. ARGUMENT
`2
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`BNR’s Misconduct Renders This Case Exceptional
`
`A.
`The facts of this case stand out from others. First, BNR did not conduct a reasonable pre-
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`suit investigation. There are simply no facts that support the allegations BNR made in its
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`complaint. Second, BNR’s refusal to dismiss Hon Hai (or even to investigate the underlying facts)
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`after Hon Hai notified BNR of its baseless allegations was objectively unreasonable. Instead, BNR
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`chose to unnecessarily increase Hon Hai’s litigation costs and waste the time of the Court. Third,
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`litigants—and BNR in particular—will not take the obligation to assess the soundness of their
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`claims seriously unless they are held to account. BNR’s misconduct must be deterred.
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`1. BNR’s allegations were frivolous.
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`BNR did not conduct a reasonable pre-suit investigation. Instead, it issued the same
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`generic set of jurisdictional allegations against every defendant, and the same generic set of
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`infringement allegations against every foreign defendant. In Shipping & Transit, LLC v. 1A
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`Auto, Inc., the Court awarded fees after dismissal for lack of subject matter jurisdiction in an
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`“exceptional” patent case where—as here—the plaintiff proffered “‘boilerplate’ complaints that
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`Plaintiff uses routinely to commence patent litigation.” 283 F. Supp. 3d 1290, 1301 (S.D. Fla.
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`8
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 13 of 19
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`2017), report and recommendation adopted 2017 U.S. Dist. LEXIS 184456 (S.D. Fla. Oct. 18,
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`2017). BNR generally alleged that each defendant “has a regular and established place of business
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`within this district.” Complaint at ¶¶ 22–34; First Lawsuit, Dkt. No. 1 at ¶ 13–19. On their face,
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`these allegations had no factual underpinnings. There was no attempt by BNR to identify any
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`alleged “place of business within this district” for Hon Hai.
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`The other allegations concerning Hon Hai follow the same pattern—BNR attesting to facts
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`“upon information and belief” with no regard for truth or factual basis. See, e.g., Complaint at ¶ 35
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`(“Defendant regularly conducts and solicits business within the State of Florida and within this
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`District.”); First Lawsuit, Dkt. No. 1 at ¶ 20 (same); Complaint at ¶ 6 (“Defendant sells and offers
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`to sell products and services throughout the United States, including in this judicial district.”); First
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`Lawsuit, Dkt. No. 1 at ¶ 6 (same). Such boilerplate allegations could not have resulted from a
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`reasonable investigation.
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`Indeed, if BNR had conducted just a minimal search, it could have readily determined that
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`Hon Hai did not belong in this case. By reference to the state business registry, BNR could have
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`determined within seconds which of the defendants actually conducts business in Florida, and
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`drafted its allegations accordingly. See https://search.sunbiz.org/Inquiry/CorporationSearch/
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`ByName. Likewise, just a few minutes of internet research would reveal that Hon Hai does not
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`manufacture, distribute, or sell the Accused Products. See, e.g., F & G Research, Inc. v.
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`Google Inc., No. 06-cv-60905-CMA, 2007 U.S. Dist. LEXIS 70072, at *38 (S.D. Fla. Sep. 20,
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`2007) (“A two-minute perusal of Google’s website, www.google.com, would have informed
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`counsel for F&G of this fact.”).
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`BNR’s conduct is worse than that seen in cases awarding attorney’s fees for “exceptional”
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`cases dismissed without prejudice for lack of personal jurisdiction. In Direct Fitness for instance,
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 14 of 19
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`the plaintiff “omitt[ed] from its complaint any facts to support the exercise of personal
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`jurisdiction,” and “[a]fter defendant moved to dismiss, plaintiff responded by asserting untenable
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`legal theories based on factually inapposite cases and facially deficient evidence.” 281 F. Supp.
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`3d 697 at 701.2 BNR conducted no jurisdictional investigation before twice filling its allegations,
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`ignored repeated notice of jurisdictional and party identity issues, and simply abandoned the forum
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`without prejudice in response to Hon Hai’s motion to dismiss. BNR’s conduct is even more
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`unusual, “exceptional,” and “not ordinary” than the plaintiff’s failure to address jurisdiction in
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`Direct Fitness.
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`BNR’s decision to ignore the merits of its allegations created unnecessary expense to both
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`Hon Hai and the Court. The frivolousness of BNR’s allegations favors finding this case
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`exceptional.
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`2. BNR’s refusal to dismiss Hon Hai after notice of its faulty allegations
`was objectively unreasonable.
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`BNR had numerous opportunities to avoid substantial expense to Hon Hai. Hon Hai
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`brought the errors in the allegations to BNR’s attention on multiple occasions over the past year.
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`Supra at 4–5; see also, e.g., NetSoc, LLC v. Chegg Inc., No. 18-cv-10262-RA, 2020 U.S. Dist.
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`LEXIS 232321, at *15–16 (S.D.N.Y. Dec. 10, 2020) (“Plaintiff ignored the deficiency in its
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`pleading of the ’107 Patent claims for approximately three months after being informed of the
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`error. This alone makes this case ‘stand out’ from others.”). In mere minutes, BNR could have
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`examined the boilerplate jurisdictional allegations in the Complaint, assessing whether it had any
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`factual basis for those claims. ZT IP, LLC v. VMware, Inc., No. 3:22-cv-0970-BS, 2023 U.S. Dist.
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`2 Direct Fitness is a Lanham Act case applying 15 U.S.C. § 1117, which contains identical wording
`to 35 U.S.C. § 285, interpreted in the same way: “The court in exceptional cases may award
`reasonable attorney fees to the prevailing party.”
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 15 of 19
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`LEXIS 19165, at *10–11 (N.D. Tex. Feb. 6, 2023) (“Put bluntly, ZT had ample opportunities to
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`recognize the frivolousness of its position,” and it “did not need to spend weeks to realize that
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`what VMware told it and showed it was true.”). BNR had knowledge that Hon Hai does not
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`conduct business in the State of Florida. Supra at 4–5. Nevertheless, it refused to conduct a
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`minimal, much less a reasonable, factual investigation to find a basis for jurisdiction. That
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`disregard is sanctionable under § 285. Id. (“ZT needed to conduct an adequate pre-filing
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`investigation and act diligently when it became aware that its investigation was inadequate.”).
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`BNR has long had notice of the facts set forth in the Motion to Dismiss. Indeed, Hon Hai
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`offered to provide documentation to substantiate those facts in order to avoid the expense of
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`litigation. It was then objectively unreasonable and improper for BNR to wait for Hon Hai to file
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`the Motion to Dismiss, with no basis to stand by the frivolous jurisdictional allegations in its
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`Complaint. See, e.g., Traxcell Techs., LLC v. AT&T Corp., No. 2:17-cv-00718-RWS-RSP, 2022
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`U.S. Dist. LEXIS 237105, at *4–5 (E.D. Tex. Dec. 22, 2022) (“Traxcell continued to pursue
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`theories that it knew or should have known were baseless.”).
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`Subsequent to repeated contact with Hon Hai, BNR should have reevaluated its
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`jurisdictional claims and determined if there was any actual dispute on the propriety of the forum.
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`It chose to do nothing, forcing the parties and the Court to expend considerable resources on
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`meritless allegations. Yet, BNR avoided the same effort and expense that it forced upon Hon Hai
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`when, instead of responding to the motion that it forced, it moved to dismiss the lawsuit without
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`prejudice. WPEM, Inc. v. SOTI Inc., No. 2:18-cv-00156-JRG, 2020 U.S. Dist. LEXIS 17449, at
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`*8 (E.D. Tex. Feb. 4, 2020) (“Having failed to conduct a pre-filing investigation, the Court finds
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`that WPEM has unreasonably subjected SOTI to the costs of litigation and should properly bear
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`its attorneys’ fees.”). This manner of litigating is objectively unreasonable and improperly
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`Case 1:22-cv-22706-RNS Document 163 Entered on FLSD Docket 04/07/2023 Page 16 of 19
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`motivated, favoring an exceptional case finding.
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`3. BNR’s deliberate and continued indifference should be deterred.
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`BNR presented the same frivolous, boilerplate jurisdictional allegations to the Court in two
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`separate complaints, and forced Hon Hai to resort to motion practice where there was seemingly
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`no live dispute between the parties, as demonstrated by BNR’s inability to oppose the motion to
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`dismiss. “[T]he substantive weakness of Plaintiff’s claims, Plaintiff’s inadequate pre-suit
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`investigation, [and] the boilerplate form of Plaintiff’s notice and complaints” evidences the need
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`for deterrence. Shipping & Transit, 283 F. Supp. 3d at 1302. Nearly a year passed between the
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`filing of the First Lawsuit and the dismissal order, during which BNR was repeatedly apprised that
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`its allegations were meritless. Yet, it refused to course-correct, forcing Hon Hai to first expend
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`substantial resources. See NetSoc, 2020 U.S. Dist. LEXIS 232321, at *15 (“Plaintiff ignored the
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`deficiency in its pleading . . . for approximately three months after being informed of the error.”).
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`Therefore, compensation and deterrence favor finding an exceptional case.
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`B. Hon Hai Is a “Prevailing Party.”
`Hon Hai is the prevailing party. Beach Blitz Co. v. City of Miami Beach, N