Blackbird v. Health In Motion was decided on December 16, 2019 on appeal from the Central District of California. “[S]hortly before discovery was scheduled to end,” defendant Health In Motion filed a motion for summary judgment. After the motion was fully briefed, without notice to Health, plaintiff Blackbird filed a notice of voluntary dismissal with prejudice, executed a covenant not to sue, and filed a motion to dismiss for lack of subject matter jurisdiction. After dismissing the claims with prejudice, the district court awarded Health $357,768.50 in attorney fees and $5,475.30 in expenses for the entire litigation, finding the case exceptional with respect to the substantive strength of Blackbird’s position and the unreasonable manner in which the case was litigated. The district court also found that fees were warranted here “to deter future abusive litigation.” Blackbird appealed.
The Federal Circuit affirmed the award of attorney fees.
The district court did not abuse its discretion in finding the case exceptional with respect to the lack of substantive strength in Blackbird’s position. The district court determined that “when challenged on the merits, Blackbird raised flawed claim construction and infringement contentions, and ultimately did not prevail on the merits because Blackbird dismissed its claims with prejudice, and submitted a covenant not to sue on the eve of trial.” “[E]ven a modicum of due diligence by Blackbird, as part of a pre-suit investigation, would have revealed the weaknesses in its litigation position.” Neither Health nor the district court was required to put Blackbird on notice of its weak position. While a lack of early notice can support a denial of attorney fees, the Federal Circuit has “not held that such notice is rigidly required.”
The district court did not abuse its discretion in finding the case exceptional with respect to the manner in which Blackbird litigated. The district court “found that Blackbird made multiple settlement demands that were far less than the anticipated cost of defense;” that “Blackbird unreasonably delayed in producing documents, withheld many documents until after [Health] took Blackbird’s deposition, and completely failed to produce other responsive documents;” and that “Blackbird had unreasonably filed a notice of dismissal, covenant not to sue, and motion to dismiss without first notifying [Health’s] counsel, on the same day pretrial submissions were due and shortly before [Health’s] motion for summary judgment was to be decided.” These findings were supported by the record.
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The district court did not abuse its discretion “by considering the need to deter future abusive litigation,” noting that “Blackbird has filed over one hundred patent infringement lawsuits, and none have been decided, on the merits, in favor of Blackbird.”
The district court did not abuse its discretion in finding that Health is entitled to $363,243.80 in fees and expenses, the full amount of the litigation. The record “supports the conclusion that Blackbird’s misconduct so severely affected every stage of the litigation that a full award of attorney fees was proper.” The district court’s order “demonstrates its consideration of the record, including [Health’s] detailed breakdown of the tasks performed by each lawyer, the billing rate of each lawyer, and the time spent by each lawyer working on this case.” “Blackbird’s contention that given the amount at stake, the district court should have determined whether it was reasonable to expend so many hours on such a small claim is misplaced.”