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T-Jat Systems 2006 Ltd. v. Expedia, Inc. (DE)

United States District Court, D. Delaware

August 27, 2019

T-JAT SYSTEMS 2006 LTD., Plaintiff,
v.
EXPEDIA, INC. (DE), EXPEDIA, INC. (WA), and ORBITZ WORLDWIDE, INC., Defendants.

          MEMORANDUM OPINION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Presently before the court in this patent infringement action is the motion to strike portions of plaintiff T-Jat Systems 2006, Ltd.'s ("T-Jat") initial identification of accused products and to clarify the proper scope of the case, [1] filed by Expedia Group, Inc. ("Expedia").[2](D.I. 104) For the following reasons, Expedia's motion to strike is DENIED.

         II. BACKGROUND

         T-Jat filed the instant patent infringement action against Expedia on July 7, 2016, accusing a number of mobile applications and mobile websites of infringing United States Patent Nos. 8, 064, 434 ("the '434 patent") and 9, 210, 142 ("the '142 patent") (together, the "patents-in-suit").[3] (D.I. 1 at ¶¶ 1, 3) On August 18, 2016, counsel for Expedia contacted T-Jat to inform T- Jat that the entity sued in the complaint was a holding company which had no substantive operations and did not own or operate the accused Expedia mobile application. (D.I. 106 at ¶ 4)

         On September 27, 2016, T-Jat filed a first amended complaint, adding Expedia, Inc. (WA) ("Expedia-WA") and Orbitz Worldwide, Inc. ("Orbitz;" collectively, "defendants") as defendants and maintaining claims against Expedia based on an alter ego / agency theory. (D.I. 10 at ¶¶ 3-8) Expedia-WA is a wholly-owned subsidiary of Expedia, and Orbitz is a wholly-owned subsidiary of Expedia-WA. (D.I. 24 at ¶¶ 4, 6) The first amended complaint identified the Expedia and Orbitz mobile applications and websites as infringing products. (D.I. 10 at ¶¶ 23-85)

         Expedia filed a motion to dismiss the first amended complaint, alleging that T-Jat failed to plead a viable alter ego or agency theory of infringement. (D.I. 13) A Report and Recommendation was issued on March 7, 2017, granting-in-part Expedia's motion to dismiss. (D.I. 20) Specifically, the Report and Recommendation recommended dismissal of T-Jat's alter ego theory, but determined that T-Jat's agency theory might survive if the pleading was amended to show that each defendant committed at least one infringing act. (Id. at 15) On March 22, 2017, the District Judge adopted the Report and Recommendation. (D.I. 22)

         T-Jat filed its second amended complaint on July 7, 2017. (D.I. 24) Defendants filed a motion to dismiss the second amended complaint on July 21, 2017. (D.I. 25) On March 28, 2018, the court dismissed Counts I and II against Expedia-WA for improper venue. (D.I. 45 at 15-16; D.I. 46) T-Jat filed a motion for reconsideration, arguing that proper venue over Expedia-WA is established by the fact that its wholly-owned subsidiary, CSC International, has a regular and established place of business in Delaware. (D.I. 47) On January 29, 2019, the court denied the motion for reconsideration and denied T-Jat's request for venue-related discovery. (D.I. 101 at 7, 10)

         On June 22, 2018, T-Jat served its "Initial Identification of Accused Products" on Expedia and Orbitz, accusing fourteen mobile applications and websites as follows:

(a) Expedia.com® mobile app and Expedia.com® mobile website, (b) Hotels.com® mobile app and Hotels.com® mobile website, (c) Hotwire.com® mobile app and Hotwire.com® mobile website, (d) Orbitz Worldwide® mobile app and Orbitz Worldwide® mobile website, (e) Travelocity mobile app and Travelocity mobile website, (f) HomeAway mobile app and HomeAway mobile website, (g) Egencia® mobile app and Egencia® mobile website, (h) trivago GmbH mobile app and trivago GmbH mobile website, (i) Wotif.com Holdings Limited mobile app and Wotif.com Holdings Limited mobile website, (j) CarRentals.comTM mobile app and CarRentals.comTM mobile website, (k) Classic Vacations® mobile website, (1) Expedia® CruiseShipCenters® mobile website, (m) ebookers mobile app and ebookers mobile website, (n) and CheapTickets mobile app and CheapTickets mobile website.

(D.I. 106 at ¶ 14; Ex. 3) Defendants served their core technical documents for the accused Orbitz mobile website and mobile application on August 6, 2018. (Id. at ¶ 15) Defendants objected to the inclusion of other products in T-Jat's Initial Identification of Accused Products. (D.I. 106at¶15;Ex.4atl&n.2)

         T-Jat served its first set of interrogatories and first set of requests for production on Expedia on November 21, 2018. (D.I. 106 at ¶ 16) Expedia objected to the scope of the requests. (Id.; Ex. 5) Expedia filed the pending motion to strike on May 3, 2019. (D.I. 105) Expedia made its first production of documents on May 21, 2019. (D.I. 112, Exs. D-F)

         III. LEGAL STANDARD

         Expedia brings the present motion to strike T-Jat's Initial Identification of Accused Products in accordance with the court's inherent power to strike submissions to the court other than pleadings.[4]See Kitson v. Bankof Edwardsville,240 F.R.D. 610, 611 (S.D. 111. 2006). "[T]he alternative basis [to Rule 12(f)] for striking improper filings is the district court's 'inherent power over the administration of its business. It has inherent authority to regulate the conduct of attorneys who appear before it [and] to promulgate and enforce rules for the management of the litigation. . . .'" Tagle v. Bean, 2017 WL 2192969, at *3 (D. Nev. May 18, 2017) (quoting Spurlock v. F.B.I.,69 F.3d 1010, 1016 (9th Cir. 1995) (citations omitted)). The Supreme Court has instructed that, "[b]ecause of their ...


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