Plaintiff’s Failure to Seek Increase in Number of Asserted Claims Justifies Dismissal of Unasserted Claims With Prejudice

The court granted defendants' motion to dismiss, with prejudice, all claims and counterclaims regarding four patents that were no longer at issue after plaintiff was ordered to reduce the number of its asserted claims. "[Plaintiff] had the absolute right to assert a claim in each of the now unasserted patents by reducing the number of claims asserted in other patents, and . . . had the right to increase the number of claims through a motion showing 'that the additional claims present[ed] unique issues.'. . . [Plaintiff] chose neither of these options and now seeks to preserve the unasserted patents and claims for a separate suit. . . . The Court is well within its discretion under the plain reading of the rule to dismiss all unasserted claims and counterclaims with prejudice for two related reasons: (1) Plaintiff failed to prosecute by not seeking to increase the number of claims in a timely fashion under the Court’s permissible due process procedure; and (2) to the extent Plaintiff wanted to assert claims regarding the four (now unasserted) patents, Plaintiff failed to timely comply with the order that directed it to submit a motion to include those additional patents and claims. . . . For [plaintiff] to now claim that due process would be offended by such a result is not persuasive. With an army of resources and lawyers, [plaintiff] clearly could have used the 'efficient and fair' procedure the Court provided to preserve its due process rights."

Magna Electronics, Inc. v. TRW Automotive Holdings Corporation et al, 1-12-cv-00654 (MIWD November 23, 2015, Order) (Maloney, J.)