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Wapp Tech Limited Partnership v. Micro Focus International, PLC

United States District Court, E.D. Texas, Sherman Division

June 6, 2019

WAPP TECH LIMITED PARTNERSHIP and WAPP TECH CORP.
v.
MICRO FOCUS INTERNATIONAL, PLC

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiffs Wapp Tech Limited Partnership and Wapp Tech Corp.'s Motion: (1) to Strike Defendant Micro Focus International, PLC's Supplemental Brief Regarding the Motion to Dismiss for Lack of Personal Jurisdiction; and (2) for Clarification of the Court's Prior Order (Dkt. #41). Having considered the motion and relevant pleadings, the Court denies Plaintiffs' motion to strike and provides clarification of its prior order.

         BACKGROUND

         I. Motion to Dismiss

         Plaintiffs filed this suit on July 2, 2018, alleging patent infringement of United States Patent Nos. 9, 971, 678, 9, 298, 864, and 8, 924, 192 (Dkt. #1).[1] On October 17, 2018, Defendant filed a motion to dismiss (Dkt. #12). Defendant moves to dismiss Plaintiffs' Complaint arguing: (1) the Court lacks personal jurisdiction over Defendant and (2) Plaintiffs failed to properly serve Defendant. Plaintiffs filed a response to Defendant's motion on November 1, 2018 (Dkt. #15). Defendant filed a reply to the motion on November 8, 2018 (Dkt. #16). Defendant's motion remains pending.

         II. Jurisdictional Discovery

         After a careful review of Defendant's motion to dismiss, the Court ordered the parties to conduct jurisdictional discovery on December 20, 2018:

The Court ORDERS the parties to engage in limited jurisdictional discovery to determine whether the Court may exercise personal jurisdiction over Defendant. Within fifteen (15) days of this Order, Plaintiffs shall serve on Defendant discovery requests intended to determine whether Defendant is subject to personal jurisdiction. Defendant shall have fifteen (15) days from the receipt of Plaintiffs' discovery requests to respond. The parties shall have fifteen (15) days from the date Defendant responds to Plaintiffs' discovery requests to supplement or amend the pleadings.

(Dkt. #17 at p. 5) (emphasis in original). This 45-day period expired on February 3, 2019.

         As the parties engaged in jurisdictional discovery, a discovery dispute arose. Accordingly, on January 16, 2019, Defendant filed a Motion for Protective Order (Dkt. #18). Defendant requested a protective order because it believed Plaintiffs' jurisdictional discovery requests were (1) improperly broad; (2) related to piercing the veil-a theory not previously asserted by Plaintiffs; and (3) were irrelevant as they related to the merits of the case, not to jurisdiction (Dkt. #18 at pp. 12-18). The parties filed a response and reply to the motion (Dkt. #19; Dkt. #22). The Court denied Defendant's motion for protective order finding, “Overall, [Defendant] cannot argue that the contacts cited by [Plaintiffs] are attributable only to its subsidiaries and simultaneously contend that [Plaintiffs are] not entitled to explore [Defendant's] relationship with these subsidiaries.” (Dkt. #24 at p. 4). As a result, on February 7, 2019, the Court ordered:

The parties shall complete jurisdictional discovery with twenty-one (21) days of this order-February 28, 2019. The parties shall amend or supplement the briefing related to [Defendant's] motion to dismiss within eight (8) days of completing jurisdictional discovery-March 8, 2019.

(Dkt. #24 at pp. 4-5) (emphasis in original).

         III. Amended Complaint, Supplemental Briefing, and Motion to Strike

         On March 8, 2019, the parties filed supplemental briefing on Defendant's motion to dismiss pursuant to the Court's February 7 order (Dkt. #30; Dkt. #32). On the same day, without seeking leave of court, Plaintiffs filed an Amended Complaint adding five additional parties-Seattle SpinCo Inc., EntIT Software LLC, EntCo Interactive (Israel) Ltd., Entco Government Software LLC, and Micro Focus (US) Inc. (Dkt. #28 ¶¶ 7-11).

         On March 12, 2019, without seeking leave of court, Defendant filed a reply to Plaintiffs' supplemental briefing (Dkt. #36).[2] The next day, Plaintiffs filed the motion at issue (Dkt. #41). Defendant filed a ...


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