United States District Court, E.D. Texas, Marshall Division
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
the Court are Defendants' objections (Docket No. 238) to
the Memorandum Opinion and Order of Magistrate Judge Payne
(Docket No. 236). The Magistrate Judge denied Defendants'
motion to join the counsel and the sole officer of Plaintiff
My Health, Inc. in this action in order to collect the
attorneys' fees awarded against My Health under 35 U.S.C.
19, 2016, Plaintiff My Health, Inc. (“My Health”)
filed this action against Defendant ALR Technologies, Inc.
(“ALR”) and alleged that ALR infringed My
Health's U.S. Patent No. 6, 612, 985 (the “
'985 Patent”). Docket No. 1. My Health filed
similar infringement actions against InTouch Technologies,
Inc. (“InTouch”), DeVilbiss Healthcare, LLC
(“DeVilbiss”), MyNetDiary, Inc.
(“MyNetDiary”), Aspire Home Healthcare
(“Aspire”) and McKesson Technologies, Inc.
(“McKesson”), with each case alleging
infringement of the '985 Patent. These cases were
referred to Magistrate Judge Payne pursuant to 28 U.S.C.
§ 636 and later consolidated. Docket No. 20.
Defendants' Motions to Dismiss Under 35 U.S.C. §
after these actions were consolidated, all defendants filed
motions to dismiss pursuant to 35 U.S.C. § 101. Docket
Nos. 12 (ALR), 25 (McKesson); No. 2:16-cv-00536, Docket No.
13 (InTouch); No. 2:16-cv-00544, Docket No. 15 (DeVilbiss);
No. 2:16-cv-00866, Docket No. 12 (MyNetDiary). Magistrate
Judge Payne recommended dismissal. Docket Nos. 66 and 69.
This Court adopted that recommendation, declared the
patent-in-suit invalid for failure to claim patent-eligible
subject matter and dismissed My Health's complaints with
prejudice. Docket No. 78. Thereafter, ALR, InTouch, McKesson
and MyNetDiary's sought attorneys' fees under 35
U.S.C. § 285. Docket No. 81. DeVilbiss later joined the
motion. Docket Nos. 82 and 98.
Defendants' Entitlement to Attorneys' Fees Under 35
U.S.C. § 285
Health requested to stay Defendants' § 285 motion,
Docket No. 89, while My Health appealed the Court's
§ 101 order, Docket No. 85. Magistrate Judge Payne
denied the request to stay, Docket No. 98, and declared the
case exceptional under § 285. Docket No. 131. Magistrate
Judge Payne ordered My Health to pay Defendants'
attorneys' fees within 60 days of the § 285 Order,
which was entered on December 19, 2017. Id. at 13.
Health unsuccessfully appealed the § 285 Order. Docket
Nos. 134, 162. My Health then objected to the § 285
Order. Docket Nos. 167, 168 and 175. This Court overruled My
Health's objection, adopted the § 285 Order and
ordered My Health to pay Defendants' attorneys' fees
within 30 days of that Order, which was entered on November
30, 2018. Id.
My Health Has Not Paid Defendants' Attorneys'
been almost two years since My Health was first ordered to
pay Defendants' attorneys' fees under § 285.
Although My Health once represented to the Court that there
“is no allegation or basis to allege that My Health
will be unable to pay an award of reasonable attorneys'
fees” when My Health's § 101 appeal concluded,
see Docket No. 89 at 7, My Health now acknowledges
that “as a practical matter, My Health simply is
incapable of paying the fees award.” Docket No. 168 at
7. My Health is now apparently insolvent. See Docket
No. 194-1 ¶¶ 33-34.
Defendants' Motions to Join Plaintiff's Counsel and
Health's counsel, Pia Anderson Moss Hoyt LLC (“Pia
Anderson”), moved to withdraw as counsel for My Health
on the basis that My Health has failed to pay its
attorneys' fees to Pia Anderson. Docket No. 178.
Defendants opposed the withdrawal, Docket No. 179, and moved
to join Pia Anderson and My Health's sole officer, Dr.
Michael Eiffert, in this action on the basis that both are
responsible for the conduct underlying the Court's §
285 Order. Docket No. 182. In their motion for joinder,
Defendants also sought sanctions against lead counsel at Pia
Anderson. Id. at 8. Magistrate Judge Payne ordered
Defendants to supplement their joinder motion by filing a
motion with an attached proposed supplemental pleading so
that the Court could evaluate the factual allegations
underlying the request. Docket No. 218. Defendants filed
their motion to supplement the joinder motion indicating:
“Pursuant to the Court's Order (Docket No. 218),
Defendants move to supplement Defendants' Motion for
Joinder of the Pia Firm and Michael Eiffert (Docket No. 182)
with the attached supplemental pleading and exhibits
thereto.” Docket No. 230. Defendants also moved for an
order to show cause as to why My Health should not be held in
contempt for failing to pay their attorneys' fees. Docket
The Magistrate Judge's ...