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Schwarz Pharma, Inc. v. Paddock Laboratories, Inc.: US District Court : CIVIL PROCEEDURE - attorneys' fees denied

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Schwarz Pharma, Inc., Schwarz
Pharma AG, and Warner-Lambert
Company, LLC,
Plaintiffs,
MEMORANDUM OPINION
v. AND ORDER
Civil No. 05-832 ADM/JJG
Paddock Laboratories, Inc.,
Defendant.
______________________________________________________________________________
Brian M. Poissant, Esq., F. Dominic Cerrito, Esq., and Daniel L. Malone, Esq., Jones Day, New
York, NY; and Laura J. Hein, Esq., Gray, Plant, Mooty, Mooty, & Bennett, PA, Minneapolis,
MN, on behalf of Plaintiffs.
Neil F. Greenblum, Esq., Michael J. Fink, Esq., Stephen M. Roylance, Esq., and P. Branko Pejic,
Esq., Greenblum & Bernstein, P.L.C., Reston, VA; and Barbara P. Berens, Kelly & Berens, P.A.,
Minneapolis, MN, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
By Order dated October 20, 2006, the Court granted Defendant Paddock Laboratories,
Inc.s (Paddock) Motion for Summary Judgment, [Docket No. 222], and later denied Plaintiffs
Schwarz Pharma, Inc., Schwarz Pharma AG, and Warner-Lambert Company, LLCs (Schwarz
Pharma) Rule 59(e) Motion to Amend or Alter the Judgment, Order [Docket No. 247]. Shortly
thereafter, Paddock filed a motion for attorneys fees and costs [Docket No. 235]. However,
before the Court ruled on Paddocks motion for fees and costs, Schwarz Pharma appealed to the
Federal Circuit. The Court delayed consideration of Paddocks motion for fees and costs until
after the Federal Circuit decided Schwarz Pharmas appeal. The Federal Circuit has since
affirmed the Courts grant of summary judgment and denial of Schwarz Pharmas Motion to
1 The facts surrounding the patent allegations of this case are set forth in the Courts
October 20, 2006, Order [Docket No. 222], granting Paddock summary judgment; and, therefore,
the present Order is limited to the pertinent procedural information.
2 This case was initially assigned to Magistrate Judge Boylan but was later reassigned to
Magistrate Judge Graham.
2
Amend or Alter the Judgment and now addresses Paddocks motion for fees and costs. For the
reasons set forth herein, the Court denies Paddocks motion.
II. BACKGROUND1
A. Delay of Summary Judgment Motion
Schwarz Pharma filed suit against Paddock alleging that Paddocks generic drug product
infringed its Patent (referred to as the 450 patent). On June 30, 2005, Paddock filed its first
motion for summary judgment. On July 28, 2005, Magistrate Judge Arthur J. Boylan ordered
Paddocks motion stricken as premature and ordered that no dispositive motions be filed before
the close of the discovery period.2 Paddock appealed and on September 1, 2005, this Court
affirmed Judge Boylans Order denying Paddocks motion for summary judgment as premature.
The Court held that if Paddock received needed FDA approval before the close of discovery,
Paddock could petition for leave to file a summary judgment motion.
On January 25, 2006, Paddock sought leave to file for summary judgment arguing the
conditions of the September 1, 2005, Order [Docket No. 46] had been met. The Court denied
Paddocks Motion concluding that there was nothing in the record demonstrating that Paddock
had received final or tentative approval from the FDA. Order [Docket No. 157]. There was no
change in circumstances from the prior order affirming Judge Boylans decision that summary
judgment consideration should await the close of discovery. After the close of discovery,
3
Paddock again filed a motion for summary judgment. The Court heard Paddocks motion on the
merits and on October 20, 2006, granted Paddock summary judgment.
B. Discovery
Throughout the course of discovery, Magistrate Judge Jeanne Graham ruled on numerous
motions filed by both parties. Judge Graham ruled in favor of both parties at different times and
noted the inability of the parties to conduct discovery without court intervention.
On March 17, 2006, Judge Graham issued a protective order. [Docket No. 156]. In June
2006, Paddock filed two motions for discovery sanctions. [Docket Nos. 163, 167]. In its first
motion, Paddock alleged, and Schwarz Pharma did not dispute, that Schwarz Pharma violated
the protective order by failing to adequately protect confidential information from disclosure to
unauthorized parties. Judge Graham granted Paddocks motion and ordered that Schwarz
Pharma pay reasonable costs and attorneys fees in connection with the motion. In its second
motion for discovery sanctions, Paddock requested that the court exclude the testimony of
Schwarz Pharmas expert, George Gokel, as a sanction for Schwarz Pharmas conduct during
Gokels deposition. During Gokels deposition, Schwarz Pharma objected to six questions and
directed Gokel not to answer. Judge Graham concluded that Schwarz Pharmas actions did not
comply with the Federal Rules of Civil Procedurespecifically, with Rule 30(d)(4)s requirement
that a witness not be instructed not to answer a question during a deposition unless necessary to
preserve a privilege. Judge Graham ordered that Schwarz Pharma make Gokel available for an
additional deposition to answer the questions Gokel was previously directed not to answer.
Having granted both of Paddocks motions for sanctions, Judge Graham awarded financial
sanctions to be paid by Schwarz Pharma. [Docket Nos. 202, 245].
4
III. DISCUSSION
In its motion for attorneys fees, Paddock asserts it is entitled to fees under 35 U.S.C.
285, 28 U.S.C. 1927, and Fed. R. Civ. P. 37(c)(2).
A. 35 U.S.C. 285
An award of attorneys fees under section 285 requires meeting a two-step threshold.
First, the court must determine whether the prevailing party has proved by clear and convincing
evidence that the case is exceptional. See Forest Labs., Inc. v. Abbot Labs., 339 F.3d 1324,
1327-28 (Fed. Cir. 2000). Second, if the court concludes that the case is exceptional, it must
then decide whether an award of attorneys fees is appropriate. Id. at 1328. Courts award
attorneys fees to prevailing accused infringers only when necessary to prevent a gross injustice
to the accused infringer. Id. at 1329.
In order to recover fees and prove that the case is exceptional, a prevailing party accused
of patent infringement must show that the patentee litigated in bad faith. Id.; see also
Imagineering, Inc. v. Van Klassens, Inc., 53 F.3d 1260, 1267 (Fed. Cir. 1995). Bad faith may be
proved through direct evidence of wrongful intent or with evidence of gross negligence that
reveals willful, wanton, or reckless misconduct. See Mach. Corp. of Am. v. Gullfiber AB, 774
F.2d 467, 473 (Fed. Cir. 1985). Pursuing vexatious, unjustified, or frivolous litigation illustrates
bad faith and supports a fee award. See Forest Labs., 339 F.3d at 1329-30. A frivolous patent
infringement suit is one which the patentee knew or, on reasonable investigation, should have
known, was baseless. Haynes Intl, Inc. v. Jessup Steel Co., 8 F.3d 1573, 1579 (Fed. Cir.
1993). Additionally, litigation misconduct and unprofessional behavior are relevant to the
award of attorney fees and may suffice to make a case exceptional under 285. Sensonics v.
5
Aerosonic Corp., 81 F.3d 1566, 1574 (Fed. Cir. 1996). However, a patentees reasoned, good
faith judgment concerning infringement can overcome a determination of exceptionality.
Brasseler v. Stryker Sales Corp., 267 F.3d 1370, 1381-82 (Fed. Cir. 2001).
1. Pre-filing investigation
Paddock asserts this case is exceptional because Schwarz Pharma brought suit without
testing Paddocks ANDA products, conducting a pre-filing investigation or obtaining an opinion
of counsel, which are indicia of an exceptional case. The prevailing party may meet its
burden to show the case is exceptional by demonstrating, by clear and convincing evidence, that
the patentee acted in bad faith by initiating the lawsuit knowing it was baseless or failing to
conduct an investigation that would have shown it was baseless. Accordingly, Paddock must
demonstrate, by clear and convincing evidence, that Schwarz Pharma knew its suit was baseless
or that it failed to conduct a reasonable investigation, which would have demonstrated that the
suit was baseless.
Schwarz Pharma asserts there was no need to test Paddocks ANDA products because it
had Paddocks paragraph IV letter detailing the formulation of Paddocks ANDA products.
Schwarz Pharma contends that the information provided in Paddocks paragraph IV letter
supported its allegations of infringement.
Although Schwarz Pharma apparently filed suit without first testing its ANDA products,
that alone does not demonstrate that Schwarz Pharma did not conduct a reasonable investigation.
Paddock has not demonstrated that using the information included in its paragraph IV letter is
insufficient to allow for a reasonable investigation or that the only means for conducting a
reasonable investigation was to physically test the products.
3 The only assertion that has citation to the record is the claim that Schwarz Pharma did
not retain an expert to test Paddocks ANDA products. This is without dispute and again, is
insufficient by itself to demonstrate bad faith. Although Paddock references Schwarz Pharmas
Privilege Log as evidence that Schwarz Pharma did not seek the advice of counsel before filing
suit, Paddock did not attach the Privilege Log to its memorandum in support of its motion and
did not provide citation to the Privilege Logs location in the record.
6
Further, Paddocks assertion that Schwarz Pharma filed suit without obtaining the advice
of counsel is without support in the record. Although Paddock sets forth several documents it
believes demonstrate that Schwarz Pharma did not seek the opinion of counsel before filing suit,
it failed to provide citation to the record or attach copies of the cited documents to its
memorandum in support of its motion.3 As a result, the Court was unable to review the cited
documents. Accordingly, Paddock has not proved by clear and convincing evidence that
Schwarz Pharma failed to conduct a pre-filing investigation or seek the opinion of counsel before
filing suit.
2. Timing of Summary Judgment Motion
Paddock next asserts that the case is exceptional because Schwarz Pharma delayed
Paddocks motion for summary judgment for more than one year. Paddock asserts that Schwarz
Pharmas argument that it was entitled to more discovery before facing summary judgment was
made in bad faith is demonstrated by Schwarz Pharmas failure to rely on the additional
discovery Paddock produced in ultimately defending against summary judgment.
These assertions by Paddock are without support. In affirming Judge Boylans decision
to deny Paddocks motion for summary judgment as premature, this Court ruled there was no
legal basis to expedite Paddocks request for summary judgment. Order [Docket No. 46] at 6.
Accordingly, the Courts decision to delay Paddocks motion for summary judgment until the
7
close of discovery does not demonstrate any bad faith by Schwarz Pharma. To the contrary,
Schwarz Pharmas assertion that it should not have to confront a motion for summary judgment
until the close of discovery had merit. Further, Paddocks assertion that Schwarz Pharma did not
rely on the evidence produced through discovery when it finally challenged Paddocks summary
judgment motion is belied by the record. A brief review of Schwarz Pharmas memorandum in
opposition to Paddocks motion for summary judgment reveals several citations to the deposition
testimony of experts deposed during discovery. Pls. Mem. in Oppn to Def.s Mot for Summ.
J. [Docket No. 183] at 7, 13, 16, 19-21, 24-25. The delay of Paddocks summary judgment
motion until the close of discovery was the Courts decision and does not demonstrate Schwarz
Pharmas bad faith making this case exceptional for the award of fees.
3. Frivolous position and literal infringement argument
Next, Paddock contends that this is an exceptional case because Schwarz Pharma
maintained a frivolous position and refused to abandon its literal infringement argument.
Paddock alleges that in responding to its counterclaim, Schwarz Pharma admitted that Paddock
did not infringe claim 4 of the 450 patent literally or under the doctrine of equivalents. Claim 4
of the 450 patent depends from claim 1 and states: [t]he composition of claim 1 wherein (b)
contains magnesium carbonate. Claim 1, the independent claim, states, [a] pharmaceutical
composition which contains . . . (b) a suitable amount of an alkali or alkaline earth metal
carbonate to inhibit cyclization and discoloration. Paddock contends that in admitting
noninfringement of claim 4, Schwarz Pharma admitted that Paddocks ANDA product, which
employs mangesium oxide as a stabilizer, did not infringe a claim that expressly required
magnesium carbonate as a stabilizer (claim 4), either literally or under the doctrine of
8
equivalents. Paddock extrapolates that Schwarz Pharmas admission amounts to an admission
at the outset of the litigation that magnesium oxide was not equivalent to magnesium carbonate.
By focusing its argument during discovery on whether magnesium oxide was equivalent to
magnesium carbonate, after admitting the opposite, Paddock argues Schwarz Pharma acted in
bad faith. Schwarz Pharma asserts that because it asserted infringement under claim 1, the
independent claim, it was not required to assert infringement under claim 4.
While there may be contradiction in admitting the dependent claim while contesting the
independent claim, Schwarz Pharmas position on the underlying substantive issue was
consistent throughout the litigation. Setting forth that inconsistency now does not demonstrate
bad faith.
The argument that Schwarz Pharma acted in bad faith by refusing to abandon its literal
infringement argument is also unpersuasive. Specifically, Paddock contends that Schwarz
Pharma acted in bad faith when it refused to admit, in response to Paddocks second set of
requests for admission (RFA), that it was not asserting a literal infringement argument.
Paddock implies that it served the second set of RFAs, asking Schwarz Pharma to concede its
literal infringement argument, because Schwarz Pharmas experts conceded that Paddocks
ANDA products did not literally infringe the 450 patent. Schwarz Pharma contends that its
literal infringement argument was viable under its theory of claim construction such that, had the
Court adopted its theory, it would have continued to pursue its literal infringement argument.
Accordingly, Schwarz Pharma asserts that it was not acting in bad faith by failing to concede its
literal infringement argument when it responded to Paddocks second set of RFAs.
9
The record indicates that Schwarz Pharma responded to Paddocks second set of RFAs
on April 12, 2006. Fourteenth Pejic Decl. [Docket No. 237] Ex. 7. The Court did not issue its
Markman opinion construing the claims at issue until April 18, 2006, Order [Docket No. 157],
and Schwarz Pharma did not depose its experts until June 2006. Graham Order [Docket No.
202] at 4, 7 (stating that the parties deposed Robert Williams on June 20, 2006, and George
Gokel on June 14, 2006). That Schwarz Pharma did not concede its literal infringement
argument when it responded to Paddocks RFA on April 12, 2006, does not demonstrate bad
faith given that this court had not yet construed the claims at issue and that Schwarz Pharma had
not yet deposed its expert witnesses.
4. Summary
Paddock has failed to demonstrate by clear and convincing evidence that this case is
exceptional. Accordingly, the appropriateness of awarding attorneys fees will not be discussed
here. In addition, even if the case is found to be exceptional, the district court in its discretion
may decline to award attorney fees. Badalamenti v. Dunhams, Inc., 896 F.2d 1359, 1365 (Fed.
Cir. 1990). Even if the Court had determined that this case was exceptional, it would not award
attorneys fees. 35 U.S.C. 285 does not entitle Paddock to an award.
B. 28 U.S.C. 1927
Under 28 U.S.C. 1927, [a]ny attorney . . . who so multiplies the proceedings in any
case unreasonably and vexatiously may be required by the court to satisfy personally the excess
costs, expenses, and attorneys fees reasonably incurred because of such conduct. Section
1927 warrants sanctions when an attorneys conduct viewed objectively, manifests either
intentional or reckless disregard of the attorneys duties to the court. Tenkku v. Normandy
10
Bank, 348 F.3d 737, 743 (8th Cir. 2003) (quoting Perkins v. Spivey, 911 F.2d 22, 36 (8th Cir.
1990)). Because section 1927 is penal in nature, it should be strictly construed so that it does
not dampen the legitimate zeal of an attorney in representing his client. Lee v. L.B. Sales,
Inc., 177 F.3d 714, 718 (8th Cir. 1999) (quoting Travelers Ins. Co. v. St. Jude Hosp. of Kenner,
La., Inc., 38 F.3d 1414, 1416 (5th Cir. 1994)).
In its memorandum seeking attorneys fees and costs, Paddock engages in a lengthy
discussion of Schwarz Pharmas actions during discovery, which it asserts to demonstrate
Schwarz Pharmas counsel unreasonably and vexatiously multiplied the proceedings.
Specifically, Paddock alleges Schwarz Pharmas counsel delayed the deposition of its expert by
interfering with Paddocks ability to schedule the deposition. Schwarz Pharma asserts that it is
not responsible for the delay because the expert was not under its control nor represented by
Schwarz Pharma. Regardless of the cause of the delay, Paddock was able to depose the expert
within the discovery period and, although inconvenienced by the delay, it does not appear that
the delay multiplied the proceedings.
Paddock also relies on the conduct for which Judge Graham sanctioned Schwarz Pharma
as conduct entitling it to sanctions under section 1927. These discovery violations have been
redressed by the sanctions already ordered by Judge Graham and do not require additional action
by this Court.
Paddock contends that it is entitled to section 1927 sanctions because of Schwarz
Pharmas refusal to admit many of its RFAs. As Judge Grahams December 22, 2005, Order
demonstrates, several of Schwarz Pharmas objections to the RFAs had merit while others did
not. Any multiplicity that arose as a result of that cannot be attributed to Schwarz Pharmas
11
counsel alone and this Court cannot conclude, based on that conduct, that Schwarz Pharmas
counsel violated its duty to this Court.
Paddock also argues Schwarz Pharma refused to answer discovery directed to Warner-
Lambert because of its assertion that Warner-Lambert was an involuntary plaintiff. Judge
Graham addressed this issue in her December 22, 2005, Order. Judge Graham appropriately
granted Paddocks motion to compel Warner-Lambert to comply with discovery, which it did.
This example does not demonstrate that Schwarz Pharma breached its duty to the court
necessitating section 1927 sanctions.
Paddock also cites Schwarz Pharmas actions with regard to its 30(b)(6) witness.
Paddock deposed Schwarz Pharmas 30(b)(6) witness on May 31, 2006. Exactly one month later
Paddock filed for summary judgment. On August 30, 2006, this Court heard argument on
Paddocks motion, and on October 20, 2006, granted Paddocks motion. In reviewing the
amount of time that passed from when Paddock deposed Schwarz Pharmas 30(b)(6) witness to
when this court decided Paddocks motion for summary judgment, it is evident that the conduct
of Schwarz Pharmas counsel in making its 30(b)(6) witness available, preparing that witness,
and instructing that witness during the deposition, did not multiply the proceedings in any way.
Accordingly, section 1927 sanctions are not appropriate.
In summary, Paddock asserts that the long list of examples it provides demonstrates a
pattern of misconduct by Schwarz Pharmas counsel that entitles it to section 1927 sanctions.
The history of this litigation, even by a quick review of the docket, reveals both parties assumed
aggressive and at times combative postures regarding discovery and motions practice. A review
of the misconduct in the cases in which sanctions have been found under section 1927 displays a
12
different degree of culpability than the conduct of Schwartz Pharmas counsel. See Clark v.
United Parcel Serv., Inc., 460 F.3d 1004, 1007, 1010-11 (8th Cir. 2006) (affirming the district
courts award of section 1927 sanctions where the attorney submitted unnecessarily voluminous
filings in an attempt to force the opposition to either yield to its position or be crushed under a
great weight of misstated factual assertions and drowned in a sea of bombast); Kansas Pub.
Employees Ret. Sys. v. Reimer & Koger Assocs., 165 F.3d 627, 629-30 (8th Cir. 1999)
(affirming sanctions where attorney filed duplicative proceedings in state court to delay the
proceedings in the original case); Gundacker v. Unisys Corp., 151 F.3d 842, 849 (8th Cir. 1998)
(affirming sanctions where attorney repeatedly disobeyed the district courts orders); Perkins v.
Gen. Motors Corp., 965 F.2d 597, 601-02 (8th Cir. 1992) (affirming sanctions where attorney
filed documents it knew contained false statements).
C. Fed. R. Civ. P. 37(c)(2)
Under Rule 37(c)(2), [i]f a party fails to admit what is requested under Rule 36 and if
the requesting party later proves a document to be genuine or the matter true, the requesting
party may move that the party who failed to admit pay the reasonable expenses, including
attorney fees, incurred in making that proof. The court must sanction the party who failed to
admit unless the court finds one of the following exceptions: (A) the request was held
objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C)
the party failing to admit had a reasonable ground to believe that it might prevail on the matter;
or (D) there was other good reason for the failure to admit. Rule 37(c)(2)(A)-(D).
Paddock contends that it is entitled to Rule 37(c)(2) sanctions because Warner-Lambert
and Schwarz Pharma denied several RFAs that it contends it later proved to be true. Although
4 This assertion is not an accurate representation of what was asked in each of the RFAs
Paddock cites. For example, RFA 62 asked Warner-Lambert to [a]dmit at the time of the
amendment of the claims in the 450 patent, persons of ordinary skill in the art were aware that
both magnesium oxide and alkali or alkaline earth-metal carbonates could be used to stabilize an
API in a pharmaceutical composition.
13
that assertion may be correct, Paddocks motion has so failed to comply with the requirements
set forth in the local rule, that this court is unable to make a determination in its favor. District
of Minnesota Local Rule 37.2 (Form of Discovery Motions) provides:
In the case of motions involving interrogatories, document requests or requests
for admissions, the moving partys memorandum shall set forth only the
particular interrogatories, document requests or requests for admissions which are
the subject of the motion, the response thereto, and a concise recitation of why
the response or objection is improper.
(Emphasis added). Rule 37.2 applies to any discovery motion filed pursuant to Rules 26
through 37 of the Federal Rules of Civil Procedure.
In its memorandum in support of its motion, Paddock provided the following argument
for Rule 37(c)(2) sanctions: In this case, Warner-Lambert initially refused to admit that
magnesium oxide was a known stabilizer for pharmaceuticals prior to the narrowing amendment
to the 450 patent. (See, e.g., RFA Nos. 5, 6, 7, 62, 63, 64, 65, 81, 82, 83, 84 & 85 . . . ).4 In
addition to the above quoted assertion, Paddock sets forth several additional assertions similar in
form to the one quoted above regarding Warner-Lamberts and Schwarz Pharmas responses to
its RFAs. In each instance, Paddock provides a general statement as to the proposition it
contends Warner-Lambert or Schwarz Pharma inappropriately denied, a contention that the
proposition was later proven true, and a long citation to its RFAs that is identical in form to the
one quoted above. The only RFAs referenced in the text, and not simply in a long string citation,
are RFAs 38, 39, 40, 41, and 42. Further, Paddock does not provide a discussion that conforms
14
to Rule 37.2s requirements. There is not a single instance in its memorandum where Paddock
provides the substance of a specific RFA, the actual response given, and a discussion as to why
the response is inadequate and deserving of Rule 37(c) sanctions.
In order to comply with Rule 37.2s requirements, Paddock needed to set forth in its
memorandum each RFA it contends was inappropriately denied, the response, and a concise
recitation of why the response or objection is improper. Providing a string citation that simply
lists the RFAs by number, with no discussion of why the answer violated Rule 36s discovery
requirement, is insufficient to comply with Rule 37.2. Accordingly, Paddocks motion for
sanctions under Rule 37(c) is denied. See Kasuri v. St. Elizabeth Hosp. Med. Ctr., 897 F.2d 845,
856 (6th Cir. 1990) (upholding the district courts denial of sanctions under Rule 37(c)(2) where
party seeking sanctions failed to comply with local rule).
The American norm of each party paying its own attorneys fees and costs applies in all
cases except those recognized as exceptional by statute or rule. This is not one of those cases for
the reasons explained above. Nor is this a case where there was a large disparity of resources
between the parties. Both corporations retained top quality law firms who assigned many
attorneys to work on the file at what the Court can only assume was great expense. The
considerable cost and the war of motion practice come at no surprise to anyone who came near
this litigation. The parties and their attorneys are encouraged to move forward with their
business and leave this chapter behind them.
15
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Paddocks Motion for Attorneys Fees and Costs pursuant to 35
U.S.C. 285, 28 U.S.C. 1927, and Fed. R. Civ. P. 37(c)(2) [Docket No. 235] is DENIED
WITH PREJUDICE.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: December 18, 2007.
 

 
 
 

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