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Plaintiff Moves to Continue Trial Date Based on Dispute with Counsel; District Court Denies the Motion and Warns That Failure to Obtain New Counsel Will Result in Dismissal

In this patent infringement action that was originally filed against a number of defendants, plaintiff Alexsam, Inc. (“Alexsam”) moved for a continuance of the impending trial date set for October 2013. To support the motion, plaintiff notified the district court that it had terminated its relationship with its counsel of record and suggested that it anticipates litigation between itself and its counsel of record. Alexsam requested a delay in the trial setting so that it could secure new counsel.

The district court had previously conducted a consolidated trial on Defendants’ invalidity claims in May 2013. The jury found each of the asserted claims valid. As explained by the district court, “Shortly after the invalidity trial, Plaintiff and Best Buy, Inc. settled the remaining issues between them (Doc. No. 270 in 2:13-cv-2). The Court then tried the infringement issues in Alexsam, Inc. v. Barnes & Noble, Inc. (2:13-cv-3) and Alexsam, Inc. v. The Gap, Inc. (2:13-cv-4) in June 2013. The Barnes & Noble trial was conducted June 3-7, 2013, and the Gap trial was conducted June 24-28, 2013. Both juries found no infringement (Doc. No. 219 in 6:13-cv-3 and Doc. No. 243 in 6:13-cv-4).”

After those two trials, “Magistrate Judge Caroline M. Craven conducted a pretrial hearing in all remaining cases. Judge Craven notified the parties that the next trial would be in October 2013. Judge Craven notified the parties in each of the related cases that they should be prepared to proceed at the upcoming trial setting in the event the scheduled case is unable to proceed (i.e., in the event of settlement or other reason that would preclude the case from proceeding to trial). (Doc. No. 172 at 2, in 2:13-cv-5).”

Alexsam then advised the district court, less than two weeks prior to the next trail, that it would not be able to proceed because it needed to obtain new counsel. The district court noted that “[t]he same counsel represents Plaintiff in each of the remaining actions. Thus, Plaintiff’s motion amounts to a motion to continue each of the remaining cases.”

The district court denied the motion “in view of the history of these related cases and the Plaintiff’s last-minute request to continue the trial(s), the Court DENIES Plaintiff’s Motion for Continuance (Doc. No. Doc. No. 261 in 2:13-cv-5). Nothing in the record or in Plaintiff’s motion justifies Plaintiff’s last-minute attempt to further delay the trial in these cases, which were originally filed more than three-and-a-half years ago.”

The district court also explained that Alexsam, as a corporation, may not proceed without counsel. ” Furthermore, the Court hereby notifies the Plaintiff that it intends to dismiss the remaining cases for failure to prosecute in the event Plaintiff is not prepared for trial on October 22, 2013. See id.; Fed. R. Civ. P. 41(b). Accordingly, Plaintiff is ordered to appear before the Court and announce whether it will be prepared to proceed to trial as previously scheduled. If Plaintiff will not be prepared for trial, Plaintiff must show cause why the above styled cases should not be dismissed.”

Alexsam, Inc. v. J.C. Penney Company, Inc., et al., Case No. 2:13-cv-5 (E.D. Tex. Oct. 11, 2013)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. We represent inventors, patent owners and technology companies in patent licensing and litigation. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Stan Gibson at 310.201.3548 or