STIPULATED AND UNOPPOSED MOTION FOR VOLUNTARY DISMISSAL UNDER FED. R. CIV. P. 41(a)(2) AND ENTRY OF PERMANENT INJUNCTION; ORDER
HAYWOOD S. GILLIAM, JR., District Judge.
INTRODUCTION
Plaintiffs Koninklijke Philips N.V. and U.S. Philips Corporation (collectively, "Philips") and Defendants Zowee Marketing Co. Ltd., Shenzen Zowee Technology Co., Ltd. and Double Power Technology, Inc. (collectively, "Zowee") have entered into a settlement agreement resolving all claims between them in this action ("the Philips/Zowee Claims").
Therefore, Philips and Zowee jointly file this motion under Civil L.R. 7-12 asking the Court to enter the parties' Stipulation of Dismissal and Permanent Injunction filed herewith, which dismisses the Philips/Zowee Claims with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) ("Rule 41(a)(2)") and enters the permanent injunction agreed upon by the parties.
Of note, lead counsel for Philips has met and conferred with counsel for the remaining parties to this action, namely, Microsoft Corporation and Microsoft Mobile Inc. (collectively, "Microsoft") regarding this motion, and Microsoft's counsel has indicated that Microsoft does not oppose this motion.
BRIEF PROCEDURAL BACKGROUND
Philips initially filed this patent infringement action in the District of Delaware, asserting, among other things, that certain of Defendant's tablet computers and 2-in-1 PCs include hardware and/or software containing functionality covered by one more claims of the patents-in-suit. D.I. 81.
Subsequently, Microsoft filed a Complaint in Intervention as the supplier of the operating system incorporated into Zowee's accused products. In their collective pleadings, Microsoft asserts against Philips counterclaims of non-infringement under the Declaratory Judgments Act, 28 U.S.C. §§ 2201(a) and 220, and Philips asserts against Microsoft claims of direct and indirect infringement. D.I.'s 73, 84, 92, 135.
On March 27, 2018, this action was transferred to this Court from the District of Delaware, along with four other similar patent infringement actions between Philips, Microsoft, and various other defendants. D.I. 285.1 The Court subsequently entered an Initial Case Management Scheduling Order setting the Initial Case Management Conference in all of those cases for June 26, 2018. D.I. 286.
As indicated, with the present motion, Philips and Zowee jointly move the Court to dismiss all of the Philips/Zowee claims with prejudice in view of their settlement agreement and to enter the agreed-upon permanent injunction.
DISCUSSION
Under Rule 41(a)(2), after an opposing party has served an answer or motion for summary judgment, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed. R. Civ. P. 41(a)(2). Moreover, a "plaintiff may invoke Rule 41(a) to dismiss fewer than all of the parties to an action." Schaeffer v. Gregory Vill. Partners, L.P., 2016 WL 9185388, at *1 (N.D. Cal. Jan. 26, 2016) (citing Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 726 (9th Cir. 1991)).
The decision to grant or deny a request to dismiss pursuant to Rule 41(a)(2) is within this Court's sound discretion. Id. (citing Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980)). However, "[a] district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result." Id. (citing Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001)). Legal prejudice means "prejudice to some legal interest, some legal claim, [or] some legal argument." Id. (citing Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)).
Here, Microsoft has indicated that it does not oppose this motion. And, nothing in this motion seeks to affect or requests the Court take any action with respect to any of the claims pending between Philips and Microsoft in this action or in any of the other co-pending actions before this Court. As a result, Microsoft will suffer no legal prejudice as a result of the dismissal of the Philips/Zowee claims.
CONCLUSION
For these reasons, the parties respectively request that the Court grant this motion and enter the parties' Stipulation of Dismissal and Permanent Injunction filed herewith as the order of this Court.
STIPULATION OF DISMISSAL AND PERMANENT INJUNCTION
IT IS HEREBY STIPULATED AND AGREED by and between the parties, Plaintiffs Koninklijke Philips N.V. and U.S. Philips Corporation (collectively, "Philips") and Defendants Zowee Marketing Co. Ltd., Shenzen Zowee Technology Co., Ltd. and Double Power Technology, Inc. (collectively, "Zowee"), subject to the approval of the Court that:
1. Effective as of the date this Stipulation is entered by the Court, Zowee and its subsidiaries, affiliates, officers, directors, agents, servants, employees, successors, and assigns, and all other persons and organizations in active concert or participation with any of the foregoing, are hereby enjoined and restrained from engaging in any of the following activities:
(a) making, using, selling, or offering for sale in the United States, or importing into the United States, any Accused Products, i.e., 9D181, D7015, D7015K, D7016, D7018, D7020, DP717, DP7856, DPA23D, D9018, DA-741QHD, DA-745HD, DA788, DA845D, DA-985D, DA-988, DP1081, DPM1081, DP1081K, DPM7827, DPW10A, DPW10A-BT, DPW7A-BT, DPW8A-BT, MD-702, EM63, GS-918, M7066, M7088, M-975, M980, M980K, MD-740, NB1022, NB1022C, NB07, NB09, NB7022S, NB7850S, NS-13T001, NS-14T002, NS-14T004, NS-15AT07, NS-15AT08, NS-15AT10, NS-15MS08, NS-15MS0832, NS-15T8LTE, NS-P10A6100, NS-P11W6100, NS-P16AT08, NS-P16AT10, NS-P16AT785HD, NS-P89W6100, T-708, T-711, T-711K, TD-1010, TG-DPW10A, UB-15MS10, UB-15MS10SA, NS-P10A7100, NS-P08A7100, NS-P11W7100, NS-P08W7100, and D-7215 or any product not colorably different therefrom until the expiration of the last of patents asserted against Zowee in this action, i.e., United States Patent Nos. RE 44,913; 6,690,387; 7,184,064; 7,529,806; 5,910,797; 6,522,695; 6,772,114, and RE 43,564, (the "Asserted Patents");
(b) making, using, selling, or offering for sale in the United States, or importing into the United States, any product that falls within the scope of one or more valid claim of the Asserted Patents;
(c) otherwise directly infringing, contributorily infringing, or inducing infringement of one or more claims of the Asserted Patents with respect to the Accused Products or any other product that falls within the scope of one or more claims of any of the Asserted Patents; and
(d) assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (a) through (c) above.
2. All claims asserted by Philips against Zowee or by Zowee against Philips in the above-captioned case are dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) and subject to the terms of an agreement reached between Philips and Zowee, provided however, that this Court shall retain jurisdiction to enforce the terms and provisions of the permanent injunction laid out in paragraph 1 above.
3. Each party shall bear its own costs and attorneys' fees.
CIVIL L.R. 5-1(i) ATTESTATION
I, Chris Holland, hereby attest that I have been authorized by counsel for Double Power Technology, Inc., Zowee Marketing Co. Ltd., Shenzen Zowee Technology Co., Ltd., to execute on their behalf this Stipulated and Unopposed Motion for Voluntary Dismissal Under Fed. R. Civ. P. 41(a)(2) and Entry of Permanent Injunction; [Proposed Order] and the accompanying Stipulation of Dismissal and Permanent Injunction.
Dated: June 19, 2018 /s/Chris Holland
Chris Holland
ORDER
The Court has now considered Plaintiffs Koninklijke Philips N.V. and U.S. Philips Corporation (collectively, "Philips") and Defendants Zowee Marketing Co. Ltd., Shenzen Zowee Technology Co., Ltd. and Double Power Technology, Inc.'s (collectively, "Zowee") Stipulated and Unopposed Motion for Voluntary Dismissal Under Fed. R. Civ. P. 41(a)(2) and Entry of Permanent Injunction ("the Motion"). Having considered the moving papers before it and being fully advised, the Court finds and orders as follows:
The Motion is GRANTED in its entirety. The Stipulation of Dismissal and Permanent Injunction filed with the Motion is entered as the Order of this Court, and all claims asserted by Philips against Zowee or by Zowee against Philips in the above-captioned case are DISMISSED with prejudice pursuant to the terms of that stipulation.
IT IS SO ORDERED.
