Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
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`BELL NORTHERN RESEARCH, LLC,
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`Case No. 1:22-CV-22706-RNS
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`Plaintiff,
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`v.
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`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.
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`HON HAI PRECISION INDUSTRY CO., LTD’S REPLY IN
`SUPPORT OF THE MOTION FOR EXCEPTIONAL CASE STATUS
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 2 of 15
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`TABLE OF CONTENTS
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`I.
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`ARGUMENT ................................................................................................................... 2
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`A.
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`B.
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`C.
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`D.
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`BNR’s Evidence Proves That This Case Never Should Have Been Filed
`Against Hon Hai. .................................................................................................... 2
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`BNR’s Jurisdictional Allegations Were Meritless. ................................................. 6
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`Hon Hai Is a “Prevailing Party.” ............................................................................. 7
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`The Motion Is Procedurally Proper. ...................................................................... 10
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`II.
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`CONCLUSION ................................................................................................................ 10
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`i
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 3 of 15
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`TABLE OF AUTHORITIES
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`Cases Pages
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`Atmos Nation LLC v. Alibaba Grp. Holding Ltd.,
`No. 15-cv-62104-KMM, 2016 U.S. Dist. LEXIS 33228 (S.D. Fla. Mar. 15, 2016) .................3
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`B.E. Tech., L.L.C. v. Facebook, Inc.,
`940 F.3d 675 (Fed. Cir. 2019)....................................................................................................8
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`Berger v. Gil,
`No. 14-cv-61294-ZL, 2016 U.S. Dist. LEXIS 124212 (S.D. Fla. Sep. 12, 2016) .....................9
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`Bivens v. Ball Healthcare Servs.,
`No. 18-cv-097-CG, 2019 U.S. Dist. LEXIS 10727 (S.D. Ala. Jan. 23, 2019) ....................9, 10
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`Bryant v. MV Transp., Inc.,
`231 F.R.D. 480 (E.D. Va. 2005) ................................................................................................9
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`Click-To-Call Technologies, LP v. Ingenio, Inc.,
`899 F.3d 1321(Fed. Cir. 2018), vacated on other grounds, 140 S. Ct. 1367 (2020) ................7
`
`Cooter & Gell v. Hartmarx Corp.,
`496 U.S. 384 (1990) ..................................................................................................................7
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`CRST Van Expedited, Inc. v. EEOC,
`136 S. Ct. 1642 (2016) ...............................................................................................................8
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`Ctr. Way Co. Ltd. v. Individuals,
`No. 22-cv-61705-AOV, 2023 U.S. Dist. LEXIS 52198 (S.D. Fla. Mar. 27, 2023) ...................9
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`Digitech Info. Sys. v. Ally Fin. Inc.,
`No. 10-cv-1398-JA, 2011 U.S. Dist. LEXIS 98662 (M.D. Fla. Sep. 1, 2011) ......................3, 4
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`F & G Research, Inc. v. Google Inc.,
`No. 06-cv-60905-CMA, 2007 U.S. Dist. LEXIS 70072 (S.D. Fla. Sep. 20, 2007) ...............3, 5
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`Good Sportsman Mktg. LLC v. Li & Fung Ltd.,
`No. 07-cv-00395-JRG, 2010 U.S. Dist. LEXIS 150063 (E.D. Tex. May 12, 2010) .................3
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`Johnson v. Pringle Dev., Inc.,
`No. 05-cv-37-GRJ, 2006 U.S. Dist. LEXIS 53103 (M.D. Fla. Aug. 1, 2006) .......................2, 9
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`Kearney v. Auto-Owners Ins. Co.,
`422 F. App’x 812 (11th Cir. 2011) ............................................................................................9
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`Konami Gaming v. Mark Studios, LLC,
`No. 14-cv-01485-JAD-BNW, 2020 U.S. Dist. LEXIS 44699 (D. Nev. Mar. 16, 2020) ...........9
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`ii
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 4 of 15
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`Manhattan Constr. Co. v. Phillips,
`No. 09-cv-1917-WSD, 2012 U.S. Dist. LEXIS 202886 (N.D. Ga. Dec. 11, 2012) ..................9
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`Mixing & Mass Transfer Techs., LLC v. SPX Corp.,
`No. 19-cv-00529-MN, 2020 U.S. Dist. LEXIS 206000 (D. Del. Nov. 4, 2020) .......................9
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`NetSoc, LLC v. Chegg Inc.,
`No. 18-CV-10262-RA, 2020 U.S. Dist. LEXIS 232321 (S.D.N.Y. Dec. 10, 2020) .................5
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`O.F. Mossberg & Sons, Inc. v. Timney Triggers, LLC,
`955 F.3d 990 (Fed. Cir. 2020)....................................................................................................8
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`Shipping & Transit, LLC v. 1A Auto, Inc.,
`283 F. Supp. 3d 1290 (S.D. Fla. 2017) ......................................................................................6
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`ZT IP, LLC v. VMware, Inc.,
`No. 22-cv-0970-BS, 2023 U.S. Dist. LEXIS 19165 (N.D. Tex. Feb. 6, 2023) .........................6
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`Other Authorities
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`Federal Rule of Civil Procedure Rule 41(a) ............................................................................1, 8, 9
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`Federal Rule of Civil Procedure Rule 11 .........................................................................................1
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`Federal Rule of Civil Procedure Rule 12(b)(6) ................................................................................5
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`Federal Rule of Civil Procedure Rule 54 .......................................................................................10
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`Local Rule 7.3(a) ...........................................................................................................................10
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`iii
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 5 of 15
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`Plaintiff Bell Northern Research, LLC’s Opposition (Dkt. No. 176, “BNR Opp.”) is just a
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`sampling of Plaintiff’s casual disregard for facts. As set forth in Hon Hai’s opening brief,
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`Plaintiff’s Complaint in its twice-filed suit lacked any objective basis. Incredibly, the Opposition
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`responds by doubling down on its original baseless allegations with even more plainly false
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`speculation and legally flawed arguments.
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`Indeed, rather than explaining why Plaintiff insisted on litigating against Hon Hai for nine
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`months in two suits without any basis for jurisdiction, Plaintiff complains that Hon Hai should
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`have the burden to prove, with “evidence,” the absence of jurisdiction. BNR Opp. at 4
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`(complaining that “counsel for Hon Hai never offered any evidence of Hon Hai’s supposed non-
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`involvement in making the accused products in the first Complaint”). BNR’s burden-shifting
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`argument turns Rule 11 on its head.
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`Digging a deeper hole, BNR now cites to some random articles as evidence of jurisdiction.
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`These new articles, however, only prove Hon Hai’s argument: They point to entities other than
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`Hon Hai that supply the purportedly infringing products identified in the Complaint. More
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`importantly, these articles and Plaintiff’s Opposition tell us nothing as to BNR’s basis for insisting
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`for nine months that jurisdiction was present over Hon Hai (as distinct from these other entities).
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`BNR’s further argument that Hon Hai did not prevail is unequivocally wrong. BNR
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`responded to Hon Hai’s Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. No. 78) by
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`ceding the case and moving the Court for dismissal pursuant to Rule 41(a)(2). BNR’s argument
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`again turns on its head the very concept of what it means to be a “prevailing party.” BNR argues
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`in its Opposition that the Court’s Rule 41(a)(2) dismissal lacks “judicial imprimatur.” Numerous
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`courts have held just the opposite. Unlike a Rule 41(a) voluntary dismissal, the Court’s order
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`under Rule 41(a)(2) is final and dispositive, and contains all the “judicial imprimatur” that courts
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`1
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 6 of 15
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`require when granting § 285 attorneys’ fees. Johnson v. Pringle Dev., Inc., No. 05-cv-37-GRJ,
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`2006 U.S. Dist. LEXIS 53103, at *11 (M.D. Fla. Aug. 1, 2006).
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`At bottom, a full year after first bringing suit against Hon Hai on May 11, 2022—BNR’s
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`continued conflation of facts and speculation show why this litigation warrants an exceptional case
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`finding. BNR should never have sued Hon Hai in the first place, much less continued to drag out
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`its baseless claims for nine months before finally dismissing Hon Hai in February 2023. Now,
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`when pressed, Plaintiff remains unable to justify its actions. Instead, it resorts to further baseless
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`argument, underscoring why Hon Hai’s Exceptional Case Motion should be granted.
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`I.
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`ARGUMENT
`A.
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`BNR’s Evidence Confirms That This Case Never Should Have Been Filed
`Against Hon Hai.
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`BNR exhibits an uncommon disregard for accuracy and carelessness with facts. Just as the
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`Court concluded in BNR’s case against Unisoc, BNR here attaches exhibits to its Opposition that
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`“actually prove [Hon Hai]’s case” by showing that Hon Hai does not manufacture or distribute
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`Nokia phones or tablets. Dkt. No. 150; Bell N. Research., LLC v. HMD Am., Inc., No. 22-cv-
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`22706-RNS, 2023 U.S. Dist. LEXIS 39359, at *18 (S.D. Fla. Mar. 8, 2023).
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`Notably, the exhibits show that entities other than Hon Hai are carrying out the purportedly
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`infringing activity. “HMD Global Oy”—not Hon Hai—is the exclusive licensee of the Nokia
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`brand for phones & tablets. Dkt. No. 176-2 at 11. Hon Hai is not HMD; rather, “HMD is an
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`independent, Finnish company.” Id. at 4. The purportedly relevant Nokia assets were sold to
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`“HMD Global Oy” and “FIH Mobile Ltd.” Dkt. No. 176-4 at 1. Subsequently, HMD “market[s]
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`Nokia-branded mobile phones and tablets with plans to launch Android smartphones, and FIH will
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`serve as its manufacturing partner.” Dkt. No. 176-3 at 1. Specifically, “HMD [has] full operational
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`control over sales, marketing and distribution of its Nokia-branded devices, with exclusive access
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`2
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 7 of 15
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`to the pre-eminent global sales and distribution network [] acquired by FIH from Microsoft, as
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`well as access to FIH’s world-leading device manufacturing and engineering capabilities, and its
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`growing suite of proprietary mobile technologies and components.” Dkt. No. 176-14 at 2. None
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`of these exhibits supports BNR’s allegations of infringement. The exhibits quoted above make
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`plain that it was FIH Mobile Ltd or Finland’s HMD Global Oy—not Hon Hai—that acquired the
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`cellphone assets under the Nokia name.
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`Notably, HMD Global Oy and FIH Mobile Ltd. are each fully independent of Hon Hai.
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`Indeed, as both are publicly traded corporations, BNR had no reason to conflate FIH Mobile with
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`Hon Hai. Huang Decl., Dkt. No. 78-1 at ¶¶ 18–19. Independence is a requirement for these
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`companies to be traded on public stock exchanges. Id.
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`If BNR asserts that there were facts supporting piercing the veil, it was required to include
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`those facts in the Complaint. It did not, for a simple reason—no such facts exist. “Black-letter
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`law forbids equating a subsidiary with its parent absent extraordinary justification to pierce a
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`corporate veil.” Atmos Nation LLC v. Alibaba Grp. Holding Ltd., No. 15-cv-62104-KMM, 2016
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`U.S. Dist. LEXIS 33228, at *17 (S.D. Fla. Mar. 15, 2016); see also F & G Research, Inc. v.
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`Dynapoint (Taiwan) Inc., No. 06-cv-60904-CMA, 2007 U.S. Dist. LEXIS 97040, at *8 (S.D. Fla.
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`Apr. 13, 2007) (“[W]hile F&G may wish to impute the activities of Dong Guan to Dynapoint by
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`its reference to a ‘Dynapoint consortium,’ there is no evidence to support that inference.”). “Where
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`a defendant does not manufacture the accused product and does not otherwise exert control over
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`or consort with other parties to indirectly manufacture or sell the accused product, the stream of
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`commerce theory is inapplicable.” Good Sportsman Mktg. LLC v. Li & Fung Ltd., No. 07-cv-
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`00395-JRG, 2010 U.S. Dist. LEXIS 150063, at *9 (E.D. Tex. May 12, 2010). “What is required
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`for jurisdiction based on the relationship between a parent corporation and a subsidiary ‘is not
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`3
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 8 of 15
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`some control but ‘operational control’ by the parent over the subsidiary.’” Digitech Info. Sys. v.
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`Ally Fin. Inc., No. 10-cv-1398-JA, 2011 U.S. Dist. LEXIS 98662, at *9–10 (M.D. Fla. Sep. 1,
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`2011) (emphasis in original).
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`BNR misleadingly ignores its own exhibits to speculate that perhaps Hon Hai makes Nokia
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`devices for HMD Global Oy instead of FIH Mobile. BNR Opp. at 10. It also ignores the record
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`in this case. Hon Hai undisputedly “does not control the day-to-day operations of FIH Mobile.”
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`Huang Decl. Dkt. No. 78-1 at 4.
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`Indeed, what makes this case exceptional is that Hon Hai has made it clear from the
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`beginning that it does not manufacture the Accused Products at all, for anyone. Yet, BNR
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`continues to refuse to accept that fact without any evidence to the contrary. See, e.g., Dkt. No.
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`176-6 at 2 (Hon Hai attorney writing on June 27, 2022, “Please let me know if you’ve been able
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`to learn enough from the other defendants to confirm that Hon Hai Precision Industry Co. Ltd.
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`does not manufacture the accused devices and can be dismissed.”); id. (Hon Hai attorney writing
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`on August 10, 2022, “Given that Hon Hai Precision Industry Co. Ltd. (‘Hon Hai’) does not
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`manufacture the accused devices, our hope is that Bell Northern Research will dismiss its claims
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`against Hon Hai.”). A few paragraphs of the Huang Declaration focus on FIH Mobile instead of
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`HMD, because there was a preexisting understanding between the parties “that Hon Hai did not
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`sell to Nokia, but did sell to Foxconn International Holdings Mobile.” Clayton Decl., Dkt. No.
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`176-8 at 2; Rojas Decl., Dkt No. 176-9 at 2 (same). The Huang Declaration also expressly states
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`that “Hon Hai has no involvement in the assembly, distribution, sale, or use of the Accused
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`Products in the United States.” Dkt. No. 78-1 at 4. Regardless, it is not Hon Hai’s burden to come
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`forward with evidence disproving jurisdiction.
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`4
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 9 of 15
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`BNR confusingly argues that “the infringement allegations are so strong that Hon Hai
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`abandoned its prior tactic in the -21035 case of denying that it committed any act that could even
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`be accused of infringement and instead abruptly shifted in this case to denying personal
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`jurisdiction.” BNR Opp. at 10–11. The opposite is true. Recognizing the stark absence of facts
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`supporting personal jurisdiction, Hon Hai declined to present a Rule 12(b)(6) motion given that
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`the Court could never decide such a motion in light of the lack of jurisdiction. See Dkt. No. 150,
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`Bell N. Research, 2023 U.S. Dist. LEXIS 39359, at *6 n.5 (“Unisoc also argues that BNR fails to
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`state a claim upon which relief can be granted in each of its claims for patent infringement, but the
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`Court declines to address those arguments because, as it discusses later, it cannot exercise personal
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`jurisdiction over Unisoc.”).
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`Finally, “[t]he global scale of Hon Hai’s operations, coupled with its prior business
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`registration in Florida” (BNR Opp. at 12), shows nothing of Hon Hai’s relevant conduct with
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`respect to the Accused Products. BNR attempts to distinguish F&G Research, Inc. v. Google Inc.
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`(holding that a suit is frivolous where the patentee know or should have know that the suit was
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`groundless), but the very evidence presented in BNR’s opposition establishes that “[i]t is common
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`knowledge that [Hon Hai] does not sell or distribute [Nokia devices].” F & G Research, 2007
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`U.S. Dist. LEXIS 70072, at *38.
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`The correspondence between the parties, beginning over a year ago, makes clear that BNR
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`was on notice of the pleading deficiencies, yet it took no corrective action, forcing Hon Hai and
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`the Court to expend substantial resources on litigation. Dkt. No. 176-6. “This alone makes this
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`case ‘stand out’ from others.” NetSoc, LLC v. Chegg Inc., No. 18-CV-10262-RA, 2020 U.S. Dist.
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`LEXIS 232321, at *15 (S.D.N.Y. Dec. 10, 2020) (“The most significant factor suggesting that this
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`case is ‘exceptional’ is that Plaintiff ignored the deficiency in its pleading of the ’107 Patent claims
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`5
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 10 of 15
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`for approximately three months after being informed of the error.”); see also ZT IP, LLC v.
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`VMware, Inc., No. 22-cv-0970-BS, 2023 U.S. Dist. LEXIS 19165, at *10–11 (N.D. Tex. Feb. 6,
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`2023) (“Put bluntly, ZT had ample opportunities to recognize the frivolousness of its position,”
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`and it “did not need to spend weeks to realize that what VMware told it and showed it was true.”).1
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`B.
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`BNR’s Jurisdictional Allegations Were Meritless.
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`Even if BNR had adequate basis for suing Hon Hai (it did not), it certainly had no
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`justification for filing the complaint in Florida. Remarkably, “BNR stands by the . . . jurisdictional
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`allegations in the Complaint against Hon Hai,” despite the glaring inaccuracies. BNR Opp. at 1.
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`For instance, BNR has offered no explanation for the Complaint’s baseless allegations that Hon
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`Hai is subject to general jurisdiction in Florida and it “has a regular and established place of
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`business within this District.” Complaint, Dkt. No. 1 at ¶¶ 24, 35; see also Shipping & Transit,
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`LLC v. 1A Auto, Inc., 283 F. Supp. 3d 1290, 1301 (S.D. Fla. 2017), report and recommendation
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`adopted 2017 U.S. Dist. LEXIS 184456 (S.D. Fla. Oct. 18, 2017) (awarding fees due to “the
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`substantive weakness of Plaintiff’s claims, Plaintiff’s inadequate pre-suit investigation, [and] the
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`boilerplate form of Plaintiff’s notice and complaints”).
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`As Hon Hai argued in its Motion to Dismiss for Lack of Personal Jurisdiction, the
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`“unanimous holding in Asahi dictates that an assertion of jurisdiction over Hon Hai in Florida
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`would be unreasonable and unfair” (Dkt. No. 78 at 12–13), and is consistent with the Court’s order
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`1 “BNR disputes that Hon Hai’s counsel ‘offered to provide documentation to BNR substantiating
`that Hon Hai has no relationship with Nokia, and that there is no personal jurisdiction over Hon
`Hai in Florida,’” but states “BNR’s counsel expressly asked for a draft of the intended motion[.]”
`BNR Opp. at 11. The Nguyen declaration acknowledges that “[c]ounsel for BNR stated that it
`would wait to see Hon Hai’s motion papers.” Dkt. No. 163-2 at ¶ 5. The “documentation” that
`Hon Hai offered to BNR is separate and apart from any draft motion, e.g., business records
`illustrating that Hon Hai does not manufacture Nokia devices. Id. at ¶ 5. To the extent BNR
`contends there was no offer of such “documentation,” the dispute is not dispositive of any issue
`relating to the Motion. Assuming the facts most favorable to BNR, the case remains exceptional.
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`6
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 11 of 15
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`dismissing Unisoc. Dkt. No. 150, Bell N. Research, 2023 U.S. Dist. LEXIS 39359, at *21 (“There,
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`the Supreme Court held that the exercise of personal jurisdiction would not comport with the
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`requirements of fair play and substantial justice based on nearly identical facts to those here.”)
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`(emphasis added).
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`BNR had the opportunity to “stand[] by the . . . jurisdictional allegations” (BNR Opp. at 1)
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`against Hon Hai by filing an opposition to the Motion to Dismiss for Lack of Personal Jurisdiction
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`(Dkt. No. 78). Instead, knowing the lack of merit in those allegations, BNR voluntarily filed its
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`own motion to dismiss Hon Hai from the lawsuit. This dismissal is particularly telling given that
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`BNR litigated the motion to dismiss Unisoc to a decision on the merits, presumably because BNR
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`felt those allegations had a better chance at success. BNR provides no explanation for how Hon
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`Hai could be subject to personal jurisdiction in Florida, while Unisoc is not. BNR’s actions cannot
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`be reconciled with its position in opposition to the Motion; it knows that the jurisdictional
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`allegations in the Complaint against Hon Hai are meritless.
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`C.
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`Hon Hai Is a “Prevailing Party.”
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`BNR may argue (without merit) that it still has a claim it can bring in some other court, but
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`that is irrelevant to the motion at hand. Simply put, Hon Hai has prevailed in obtaining dismissal
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`in this Court. See Click-To-Call Technologies, LP v. Ingenio, Inc. et al., 899 F.3d 1321, 1335
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`(Fed. Cir. 2018), vacated on other grounds, 140 S. Ct. 1367 (2020) (“Indeed, a voluntary dismissal
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`without prejudice (1) may give rise to costs and fees under Rule 11 …”); see also Cooter & Gell
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`v. Hartmarx Corp., 496 U.S. 384, 398 (1990) (“If a litigant could purge his violation of Rule 11
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`merely by taking a dismissal, he would lose all incentive to ‘stop, think and investigate more
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`carefully before serving and filing papers.’”) (citation omitted). Hon Hai is the “prevailing party,”
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`and is entitled to pursue relief for BNR’s exceptional behavior even under a dismissal without
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`prejudice.
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`7
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 12 of 15
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`Indeed, fees are warranted for an exceptional case that has been dismissed by the Court
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`regardless of whether the dismissal concerned the substantive merits of the allegations. “There is
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`no indication that Congress intended that defendants should be eligible to recover attorney’s fees
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`only when courts dispose of claims on the merits.” CRST Van Expedited, Inc. v. EEOC, 136 S.
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`Ct. 1642, 1650–51 (2016) (vacating denial of fees where the Court of Appeals improperly
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`“distinguished ‘claim elements,’ on the one hand, from ‘jurisdictional prerequisites or
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`nonjurisdictional prerequisites to filing suit,’ on the other”).
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`The absence of jurisdiction as to Hon Hai was and remains clear as day. So, flipping the
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`concept of a “prevailing party,” BNR now contends that since Hon Hai’s Motion to Dismiss for
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`Lack of Personal Jurisdiction (Dkt. No. 78) was too strong to merit opposition, Hon Hai is
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`somehow barred from “prevailing party” status. But precedent provides no support for that
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`incongruous outcome. Rather, “CRST explains that a defendant . . . can prevail by ‘rebuffing’
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`plaintiff’s claim, irrespective of the reason for the court’s decision.” B.E. Tech., L.L.C. v.
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`Facebook, Inc., 940 F.3d 675, 679 (Fed. Cir. 2019).
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`BNR’s allegations against Hon Hai were dismissed pursuant to Rule 41(a)(2). With that
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`order, Hon Hai became a prevailing party. The cases cited in the opposition are inapposite—they
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`all considered a voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
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`O.F. Mossberg & Sons, Inc. v. Timney Triggers, LLC, 955 F.3d 990, 993 (Fed. Cir. 2020) (“In this
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`case, there was no such final court decision. A properly filed Rule 41(a)(1)(A)(i) voluntary
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`dismissal becomes effective immediately upon plaintiff’s filing of the notice of dismissal.”); Ctr.
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`Way Co. Ltd. v. Individuals, No. 22-cv-61705-AOV, 2023 U.S. Dist. LEXIS 52198, at *2 (S.D.
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`Fla. Mar. 27, 2023) (“Plaintiff’s voluntary dismissal under Rule 41(a)(1)(A)(i) did not require a
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`Court order and, rather, was effective upon filing.”); Mixing & Mass Transfer Techs., LLC v. SPX
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`8
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 13 of 15
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`Corp., No. 19-cv-00529-MN, 2020 U.S. Dist. LEXIS 206000, at *4 (D. Del. Nov. 4, 2020)
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`(“[B]efore Defendants answered the Complaint, Plaintiff voluntarily dismissed this action without
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`prejudice pursuant to Federal Rule Civil Procedure 41(a)(1)(A)(i).”).
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`In contrast to dismissals under 41(a)(1), numerous courts have held that “a Rule 41(a)(2)
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`dismissal has the ‘judicial imprimatur’ that a Rule 41(a)(1) dismissal lacks.” Johnson, 2006 U.S.
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`Dist. LEXIS 53103, at *11.2 Thus, BNR’s case law is irrelevant and its conclusion is incorrect.
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`BNR attempts to distinguish Bivens, 2019 U.S. Dist. LEXIS 10727, at *7, on the basis that
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`BNR’s motion to dismiss Hon Hai was “expressly without prejudice and not requiring this Court
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`to exercise equitable discretion,” whereas the plaintiff in Bivens did not specify if the dismissal
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`should be without prejudice. BNR Opp. at 16. BNR does not explain what relevance equitable
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`discretion has in the “prevailing party” analysis. Regardless, Bivens is just one of many cases to
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`reach the same conclusion on this issue, and BNR presents no case law to the contrary. Hon Hai
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`is the prevailing party.
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`2 See also, e.g., Bivens v. Ball Healthcare Servs., No. 18-cv-097-CG, 2019 U.S. Dist. LEXIS
`10727, at *7 (S.D. Ala. Jan. 23, 2019) (“When a plaintiff’s motion to voluntarily dismiss a claim
`pursuant to Federal Rule of Civil Procedure 41(a)(2) is granted by a district court, the defendant is
`considered a prevailing party because there has been a ‘a judicial imprimatur on the change in the
`legal relationship between the parties.’”) (quoting Kearney v. Auto-Owners Ins. Co., 422 F. App’x
`812, 818 (11th Cir. 2011)); Bryant v. MV Transp., Inc., 231 F.R.D. 480, 482 (E.D. Va. 2005) (“[A]
`Rule 41(a)(2) dismissal has the ‘judicial imprimatur’ and ‘judicially sanctioned’ relief lacking in
`a Rule 41(a)(1)(ii) dismissal.”); Manhattan Constr. Co. v. Phillips, No. 09-cv-1917-WSD, 2012
`U.S. Dist. LEXIS 202886, at *11–12 (N.D. Ga. Dec. 11, 2012) (“There was, however, significant
`judicial involvement in the granting of Plaintiff’s Motion for Voluntary Dismissal Without
`Prejudice, pursuant to Rule 41(a)(2)[.]”); Berger v. Gil, No. 14-cv-61294-ZL, 2016 U.S. Dist.
`LEXIS 124212, at *5 (S.D. Fla. Sep. 12, 2016) (rejecting claim of legal prejudice from Rule
`41(a)(2) dismissal, because there is no resulting bar against prevailing party status and fees);
`Konami Gaming v. Mark Studios, LLC, No. 14-cv-01485-JAD-BNW, 2020 U.S. Dist. LEXIS
`44699, at *4 (D. Nev. Mar. 16, 2020) (same).
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`9
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 14 of 15
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`D.
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`The Motion Is Procedurally Proper.
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`BNR contends that under Rule 54, a motion for attorney’s fees must “be filed no later than
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`14 days after the entry of judgment.” BNR Opp. at 8. But that default rule does not apply if “a
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`statute or a court order provides otherwise,” and the Southern District of Florida has, indeed,
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`provided otherwise: Local Rule 7.3(a)(1) states “[t]he motion shall be filed and served within
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`sixty (60) days of the entry of the final judgment or order giving rise to the claim[.]” Hon Hai met
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`that requirement. The Local Rules further require a draft motion to “be served but not filed at least
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`thirty (30) days prior to the deadline for filing any motion for attorneys’ fees,” and Hon Hai met
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`that requirement as well. BNR and Rule 54(d)(2)(C) acknowledge that “[t]he court may decide
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`issues of liability for fees before receiving submissions on the value of services.” BNR Opp. at 9;
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`see also Local Rule 7.3(a) (“Pursuant to Federal Rule of Civil Procedure 54(d)(2)(C), either party
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`may move the Court to determine entitlement prior to submission on the issue of amount.”).
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`Confusingly, BNR also complains that “[t]here is not even an inkling of the amount in fees
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`sought, as required by these rules.” BNR Opp. at 17. BNR’s complaint is premature, because Hon
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`Hai’s motion only seeks “to determine entitlement prior to submission on the issue of amount.”
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`Local Rule 7.3(a). BNR received a draft of Hon Hai’s Motion for Exceptional Case Status on
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`March 8, 2023. Since that time, Hon Hai has repeatedly requested authority contrary to the
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`procedure elected here. Upon filing its opposition nearly two months later, BNR still lacks any
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`authority for its procedure argument. There is none. Hon Hai’s motion was properly submitted.
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`II.
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`CONCLUSION
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`For the foregoing reasons, Hon Hai respectfully requests that the Motion be granted.
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`10
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`Case 1:22-cv-22706-RNS Document 178 Entered on FLSD Docket 05/19/2023 Page 15 of 15
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`Dated: May 19, 2023
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`By: /s/ Daniel J. Simon
`Danny J. Simon (Florida Bar. No. 16244)
`Lalchandani Simon PL
`25 SE 2nd Avenue
`Suite 1020
`Miami, FL
`Telephone: 305-999-5291
`danny@lslawpl.com
`
`Lisa K. Nguyen
`Eric E. Lancaster
`Allen & Overy LLP
`550 High Street, 2nd Floor
`Palo Alto. CA 94301
`Telephone: 650-388-1705
`lisa.nguyen@allenovery.com
`eric.lancaster@allenovery.com
`
`Noah A. Brumfield
`Colby A. Davis
`Allen & Overy LLP
`1101 New York Avenue NW
`Washington, DC 20005
`Telephone: 202-683-3847
`noah.brumfield@allenovery.com
`colby.davis@allenovery.com
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`Attorneys for Defendant
`Hon Hai Precision Industry Co., Ltd.
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`CERTIFICATE OF SERVICE
`I hereby certify that on May 19, 2023, I electronically filed the foregoing document with
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`the Clerk of the Court using CM/ECF, effecting service on all counsel of record.
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`/s/ Daniel J. Simon
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`11
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