Marshall Feature Recognition, LLC v. Wendy’s Int’l., Inc., No. 14 C 865, Slip Op. (N.D. Ill. Jul. 25, 2016) (Coleman J.).
Judge Coleman denied plaintiff Marshall Feature Recognition’s (“MFR”) Fed. R. Civ. P. 60(b) & 59(e) motion for reconsideration of the Court’s order dismissing MFR’s patent complaint regarding QR codes for want of prosecution.
The Court dismissed MFR’s complaint after lead counsel failed to attend several hearings and was unresponsive to both defendant Wendy’s counsel and the Court. MFR’s local counsel had withdrawn from representing MFR in light of lead counsel’s unresponsiveness. Additionally, MFR missed its Local Patent Rules final contentions deadlines.
MFR’s claim that it had responded to local counsel was irrelevant because the Court dismissed the case in light of lead counsel’s entire record of failure to prosecute. And the fact that it was MFR’s lead counsel who was unresponsive, not MFR itself was also unavailing. MFR chose lead counsel as its agents and cannot avoid the consequences of counsel’s actions.
Similarly, an inaccuracy in a minute order – stating that defendant had served discovery when it had not – was not grounds for reconsideration. The Court knew that defendant had not served discovery, and the greater issue was a lack of discovery by plaintiff a year into the discovery period.
The fact that MFR filed an amended complaint, served discovery, set a case schedule and attended a hearing was not sufficient to overcome the hearings that MFR did not attend, lead counsel’s failure to communicate with local counsel and MFR’s missed final contentions deadlines. Similarly, local counsel’s attendance at some hearings did not save MFR because local counsel lacked the information necessary to meaningfully prosecute the case.
Lead counsel’s unresponsiveness was not an isolated incident. Instead it was a pattern for at least six weeks. Had lead counsel paid “even a minimal amount of attention” it would have noticed “red flags” indicating a need to get more involved.