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Conceivex, Inc. v. Rinovum Women'S Health, Inc.

United States District Court, E.D. Michigan, Southern Division

August 15, 2017

Conceivex, Inc., Plaintiff,
v.
Rinovum Women's Health, Inc., Rinovum Women's Health, LLC, and The Stork IB2C, Inc., Defendants.

          Elizabeth A. Stafford Mag. Judge.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO AMEND [61, 63] AND DENYING PLAINTIFF'S RENEWED MOTION TO CONSOLIDATE [62]

          JUDITH E. LEVY United States District Judge.

         Before the Court are plaintiff Conceivex, Inc.'s motion to amend the complaint (Dkts. 61, 63) and renewed motion to consolidate this case with its copyright infringement suit against the same corporate entity defendants, Case No. 15-cv-14239. (Dkt. 62.)

         For the reasons set forth below, plaintiff's motion to amend is denied, and the renewed motion to consolidate is denied.

         I. Background

         This case arises out of defendants' alleged infringements of plaintiff's patent and trademark related to its prescription CONCEPTION KIT. Plaintiff alleges that defendants sold an over-the-counter version of its conception kit called The Stork OTC Home Conception Device, and that the device infringed on plaintiff's `493 patent. Further, the device allegedly infringed plaintiff's trademark in various ways, including through the use of CONCEPTION KIT as a meta tag on defendant's website and as a mark in online advertisements.

         The complaint was filed on May 20, 2016, and plaintiff filed its first amended complaint on June 8, 2016. (Dkts. 1, 10.) Discovery began after the Court entered a scheduling order on October 13, 2016, and fact discovery will continue until sixty days after the Court rules on the patent claim construction issues. (Dkt. 49.) A claim construction hearing is scheduled for October 25, 2017.

         Plaintiff has now moved to file a second amended complaint (Dkts. 61, 63), and filed a renewed motion to consolidate this case with a copyright infringement lawsuit against the same corporate entity defendants, Case No. 15-cv-14239. The initial motion to consolidate was denied without prejudice on September 29, 2016, with leave to refile in four months. (Dkt. 51 at 29 (Hr'g Tr.).) Plaintiff refiled on March 29, 2016.

         In the copyright infringement lawsuit, filed on December 3, 2015, plaintiff alleges that defendants infringed the copyright of plaintiff's “Instructions for Use” document included with its CONCEPTION KIT by using the same or substantially similar language in its instruction manual. Plaintiff filed a first amended complaint in that case on March 2, 2016. The original scheduling order permitted the parties to amend the pleadings until May 12, 2016. (Case No. 15-cv-14239, Dkt. 16.) Under the current scheduling order, the cutoff for fact discovery is October 2, 2017, and expert discovery closes February 2, 2018. (Dkt. 36.)

         II. Legal Standard

         Fed. R. Civ. P. 15(a)(2) instructs courts to “freely give leave [to amend] when justice so requires.” But “[a] motion to amend a complaint should be denied if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (internal citations omitted). “Delay by itself is not sufficient reason to deny a motion to amend.” Coe v. Bell, 161 F.3d 320, 342 (6th Cir. 1998) (internal quotation omitted). But “[w]hen combined with [] prejudice . . . there [may be] sufficient grounds . . . to deny the motion.” Id. “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Riverview Health Inst., LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

         Fed. R. Civ. P. 42(a) governs consolidation of cases, and states that “[i]f actions before the court involve a common question of law or fact, the court may . . . consolidate the actions.” “Whether cases involving the same factual and legal questions should be consolidated for trial is a matter within the discretion of the trial court.” Cantrell v. GAF Corp., 999 F.2d 1007, 1011 (6th Cir. 1993); see also Caspar v. Snyder, 77 F.Supp.3d 616, 645 (E.D. Mich. 2015) (citing Cantrell, 999 F.2d at 1011). “Care must be taken that consolidation does not result in unavoidable prejudice or unfair advantage, ” and where conservation of judicial resources would be “slight, the risk of prejudice to a party must be viewed with even greater scrutiny.” Cantrell, 999 F.2d at 1011. Factors a court must consider also include “the burden on parties, witnesses . . ., the length of time required to conclude multiple suits . . ., and the relative expense to all concerned of the single trial, multiple-trial alternatives.” Id. (quoting Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985)).

         III. Analysis

         Plaintiff seeks to amend the complaint to add Stephen Bollinger, an executive officer of the corporate entity defendants, as a defendant. Plaintiff also seeks to consolidate this case with its copyright case.

         A. Motion to Amend

         Defendants argue that plaintiff's motion to amend should be denied because (1) the Court lacks personal jurisdiction over Mr. Bollinger; (2) this Court would be the improper venue over claims against Mr. Bollinger; (3) plaintiff has failed to state a claim so the amendment would be futile; and (4) the motion is brought with undue delay and in bad faith, and would cause undue prejudice. (Dkt. 66.)

         Personal Jurisdiction

         In patent cases, a court has personal jurisdiction over an out-of-state party if two conditions are met. “First, jurisdiction must exist under the forum state's long-arm statute.” Med. Sols., Inc. v. C Change Surgical LLC, 541 F.3d 1136, 1139 (Fed. Cir. 2008) (citing Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1279 (Fed. Cir. 2005)). “Second, the assertion of personal jurisdiction must be consistent with the limitations of the due process clause.” Id. Thus, in this case, Michigan law controls the first inquiry, and federal law, as set forth by the Supreme Court and Federal Circuit, controls the second. See id.

         Mich. Comp. Laws § 600.701 provides for general personal jurisdiction over an individual if “any of the following relationships” exists: (1) presence in the state at the time when process is served; (2) domicile in the state at the time when process is served; or (3) consent.”

         In this case, Mr. Bollinger's contacts with Michigan do not satisfy any of these three conditions. Plaintiff also appears to argue that the Court has general personal jurisdiction over Mr. Bollinger because he directs the actions of the corporate defendants, which “maintain a deliberate, systematic business relationship within this District, ” the Court has jurisdiction. But that the Court has jurisdiction over the corporate entity does not give it jurisdiction over a corporate officer by extension. Instead, as set forth above, the Court must have jurisdiction pursuant to Michigan's law on general personal jurisdiction over individuals. Accordingly, the Court lacks general personal jurisdiction over Mr. Bollinger.

         Mich. Comp. Laws § 600.705 provides for limited jurisdiction over individuals if any of the following relationships exist: (1) transaction of any business within the state; [or] (2) doing or causing an act to be done, or consequences ...


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