Opinion
5:98-CV-120 (HGM).
September 24, 2002
DOUGLAS A. MIRO, ESQ., OSTROLENK, FABER, GERB SOFFEN, LLP, New York, New York, Attorneys for Plaintiff.
CHRIS P. PERQUE, ESQ., ADAMS AND REESE LLP, New Orleans, Louisiana, Attorneys for Non-Party Gordon Sales, Inc.
MEMORANDUM-DECISION AND ORDER
Currently before this court is plaintiff's motion for partial summary judgment. Additionally, non-party Gordon Sales, Inc.'s ("Gordon") has orally moved for intervention on behalf of defendant or for consolidation of the present case with another case before this court. For the reasons that follow below, plaintiff's motion for partial summary judgment is GRANTED and non-party Gordon's motions for intervention or consolidation are DENIED.
BACKGROUND
On January 26, 1998, plaintiff Envirco Corporation ("Envirco") filed suit complaining that defendant Clestra Cleanroom, Inc. ("Clestra") infringed its U.S. Patent No. 4,560,395 ("'395 Patent"), which covers a centrifugal fan and filter assembly for clean room environments.
On November 4, 1998, this court granted Clestra's motion for summary judgment of non-infringement. Envirco Corp. v. Clestra Cleanroom, Inc., 49 U.S.P.Q.2d 1838 (N.D.N.Y. 1999), vacated and remanded, 209 F.3d 1360 (Fed. Cir. 2000) ("Envirco I"). The issue was whether the sound dampening material of Clestra's alleged infringing product, the Fantom, constitutes, or is equivalent to, the second baffle means of the asserted patent claims. The court held that the Fantom does not infringe the '395 Patent under a means-plus-function analysis or the doctrine of equivalents because the L-shaped material in the Fantom is not arcuate. Envirco appealed the decision.
On April 18, 2000, the Federal Circuit Court of Appeals vacated and remanded this court's decision to resolve any remaining factual issues of the case. Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360 (Fed Cir. 2000) ("Envirco II").
Subsequent to the remand, this court granted the motions of Envirco's counsel of record to withdraw pursuant to Local Rule 83.2. The decisions were based on the fact that Envirco had been dissolved due to insolvency and no longer existed. Therefore, there was no longer any corporate employees available to instruct counsel how to proceed in the present case. On January 18, 2002, Envirco filed a motion for partial summary judgment on the issue of infringement and oral argument was scheduled for February 25, 2002. Clestra did not file opposition to the motion.
The court granted the motion to withdraw of Pennie Edmonds LLP on January 11, 2002 and the motion to withdraw of local counsel Green Seifter, Attorneys, PLLC on March 4, 2002.
On February 22, 2002, the court received a faxed letter from non-party Gordon. The letter explained that Gordon was the plaintiff in a case involving Envirco and the same patent, recently transferred to this court from the District of New Mexico. Prior to 11 a.m. that morning, Gordon did not have any notice of the pending motion for partial summary judgment, despite Envirco's express written agreement to provide it with copies of all pleadings in the present case. Gordon requested the court to continue the scheduled oral argument, in order to allow it a reasonable opportunity to move to consolidate the cases or intervene in the present case.
Gordon Sales, Inc. v. Envirco Corp., 5:02-CV-0210 (HGM/DEP).
On February 25, 2002, a conference in chambers took place with Envirco present and Gordon participating via telephone. At the conclusion of the conference, the court reserved decision on Envirco's motion for partial summary judgment and Gordon's oral motion for intervention or consolidation.
Currently before the court is Envirco's motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and Gordon's motion for intervention pursuant to Rule 24 of the Federal Rules of Civil Procedure or for consolidation pursuant to Rule 42 of the Federal Rules of Civil Procedure.
DISCUSSION
I. Envirco's Motion for Partial Summary Judgment
The standard for summary judgment is well-settled. Rule 56 of the Federal Rules of Civil Procedure allows for summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1991) (quoting Federal Rule of Civil Procedure 1). A motion for summary judgment may be granted when the moving party carries its burden of showing that no triable issues of fact exist. See Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). In light of this burden, any inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party. See id.; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam). If the moving party meets its burden, the burden shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To defeat a motion for summary judgment, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. See id. at 250-251, 106 S.Ct. at 2511.
Envirco moves for partial summary on its claim that Clestra's Fantom filter unit infringes claims 1, 16, and 20 of Envirco's '395 patent. After reviewing the submitted papers and listening to Envirco's arguments, the court concludes that there are no genuine issues of material fact and the Fantom filter unit does, in fact, infringe the '395 patent. Therefore, Envirco's motion for partial summary judgment on the issue of infringement is granted.
II. Gordon's Motion for Consolidation
Rule 42(a) of the Federal Rules of Civil Procedure provides:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
In general, courts have "broad discretion to determine whether consolidation is appropriate." Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990). The chief advantages of consolidation are that it avoids the waste associate with duplicative discovery and multiple trials and the danger of inconsistent verdicts. See Bank of Montreal v. Eagle Assocs., 117 F.R.D. 530, 533 (S.D.N.Y. 1987). In deciding whether consolidation is proper, a court should balance the interest of judicial convenience against any delay, confusion, or prejudice that might result from such consolidation. See Johnson, 899 F.2d at 1285.
Gordon argues that consolidation is appropriate because '395 patent and the same accused devices are at issue in each case, and also Gordon would assert many of the same defenses that Clestra previously asserted. In opposition, Envirco argues that the present case has reached an advanced stage and the vast majority of the arguments that Gordon makes on the issue of infringement have already been made by Clestra and rejected.
After reviewing the conference transcript and the arguments made by each party, the court concludes that consolidation is not appropriate in the present case. As previously discussed, the court has already determined that partial summary judgment in favor of Envirco is appropriate. To allow Gordon to consolidate its case with the present case would create unnecessary delay that would not outweigh the interest of judicial convenience. Therefore, Gordon's motion for consolidation is denied.
III. Gordon's Motion for Intervention
Gordon argues that, pursuant to Rule 24 of the Federal Rules of Civil Procedure, it is entitled to intervene as of right or, in the alternative, permissively.
A. Intervention as of Right
The standard governing intervention as of right under Rule 24(a)(2) is well-established. "[A]n applicant must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protect adequately by the parties to this action." New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992). Failure to satisfy any of the elements warrants denying a motion for intervention. See Butler, Fitzgerald Potter v. Sequa Corp., 250 F.3d 171, 176 (2d Cir. 2001). A court must determine, within its discretion and under the totality of the circumstances, whether a motion to intervene by right without statutory authorization is timely. See D'Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001). In order to determine whether a motion is timely, a court may consider: "(1) how long the applicant had notice of the interest before [it moved to intervene]; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness." D'Amato, 236 F.3d at 84.
Gordon claims that it notified the court of its intent to move for intervention within hours of receiving notice of the impending oral argument on Envirco's partial summary judgment motion and that it would be prejudiced by a claim construction ruling in the present case that it had very little input on. Envirco argues that to allow Gordon's intervention would cause prejudicial delay and the court agrees. Once again, as previously discussed, the court has already determined that partial summary judgment in favor of Envirco is appropriate. To allow Gordon to intervene at this time would not affect the outcome and would merely cause additional delay. Additionally, Clestra has already adequately represented Gordon's interests in the present case, so intervention is not necessary. Therefore, Gordon's motion for intervention as of right is denied.
B. Permissible Intervention
Rule 24(b) permits intervention in actions: (1) where authorized by federal statute; or (2) when there is a common question of law or fact between the movant's claim and the suit in which the movant seeks to intervene. When considering a motion for permissive intervention, a court must examine whether intervention will prejudice the parties to the action or cause under delay. See D'Amato, 236 F.3d at 84.
Finally, as previously discussed, the court has already determined that partial summary judgment in favor of Envirco is appropriate and to allow Gordon to intervene at this time would not affect the outcome and would merely cause additional delay. Therefore, Gordon's motion for permissive intervention is denied.
CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that Envirco's motion for partial summary judgment on the issue of infringement is GRANTED. It is further
ORDERED, that non-party Gordon's motions for consolidation or intervention are DENIED. It is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum — Decision and Order upon Envirco and Gordon by regular mail.
IT IS SO ORDERED.