United States District Court, D. Colorado
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
Kristen L. Mix, United States Magistrate Judge.
This
matter is before the Court on Defendant's
Unopposed Motion to Stay Pending
Completion of International Trade Commission
Investigation [#12] (the “Motion”).
Defendant seeks, and Plaintiff does not oppose, an Order from
the Court that (1) stays this action pursuant to 28 U.S.C.
§ 1659(a) pending completion of U.S. International Trade
Commission (“ITC”) Investigation No. 337-TA-1154;
and (2) permits Defendant to answer or otherwise respond to
the Complaint [#1] within thirty days after the stay is
lifted. Motion [#12] at 1. The federal statute
relied on by Defendant provides that:
In a civil action involving parties that are also parties to
a proceeding before the United States International Trade
Commission under section 337 of the Tariff Act of 1930, at
the request of a party to the civil action that is also a
respondent in the proceeding before the Commission, the
district court shall stay, until the determination of
the Commission becomes final, proceedings in the civil action
with respect to any claim that involves the same issues
involved in the proceeding before the Commission, but only if
such request is made within __
(1) 30 days after the party is named as a respondent in the
proceeding before the Commission, or
(2) 30 days after the district court action is filed,
whichever is later.
28 U.S.C. § 1659(a) (emphasis added). Defendant states
that ITC Investigation No. 337-TA-1154 involves the same
parties and patents at issue in this civil action.
Motion [#12] at 1. Defendant further states that the
ITC instituted the investigation, naming Defendant as a
respondent, on April 4, 2019. Id. at 1-2. Therefore,
Defendant's request is within time frame contemplated by
the statute and the requirements of the statute are
satisfied. See In re Princo Corp., 478 F.3d 1345,
1355 (Fed. Cir. 2007) (“Since the [ITC] proceedings
here are still ongoing, [28 U.S.C. § 1659(a)] requires a
stay of the pending district court infringement proceedings
if the requirements of the statute are otherwise
satisfied.”). Accordingly, given that a stay pursuant
to 28 U.S.C. § 1659(a) is not discretionary, IT IS
HEREBY ORDERED that the Motion [#12] is
GRANTED. This case is
STAYED pursuant to 28 U.S.C. § 1659(a)
until a final determination of the ITC is issued regarding
ITC Investigation No. 337-TA-1154. Defendant shall answer or
otherwise respond to the Complaint [#1] within thirty
days of the Court lifting the stay.
IT IS
FURTHER ORDERED that the Scheduling
Conference set for June 18, 2019 at 10:00 a.m. is
VACATED.
Given
the uncertainty as to how long it may be until the ITC
proceeding is resolved, this case is eminently well suited
for administrative closure, subject to opening for good
cause. See D.C.COLO.LCivR 41.2 (“[a] district
judge or a magistrate judge exercising consent jurisdiction
may order the clerk to close a civil action administratively
subject to reopening for good cause”); Juul Labs,
Inc. v. The Electric Tobacconist, LLC, No. 18-cv-
02995-WJM, Docket No. 10 (D. Colo. December 27, 2018)
(adopting recommendation to administratively close case on
parties' motion to stay pursuant to 28 U.S.C. §
1659(a)). Accordingly, IT IS HEREBY
RECOMMENDED that this case be
administratively closed pursuant to
D.C.COLO.LCivR 41.2 subject to reopening for good cause,
including a final determination by the ITC.
IT IS
FURTHER ORDERED that the parties shall
provide a Status Report within fourteen days of the
resolution of the ITC proceeding.
IT IS
FURTHER ORDERED that pursuant to
Fed.R.Civ.P. 72, the parties shall have fourteen (14) days
after service of this Recommendation to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. A party's
failure to serve and file specific, written objections waives
de novo review of the Recommendation by the District
Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S.
140, 147-48 (1985), and also waives appellate review of both
factual and legal questions. Makin v. Colo. Dep't of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley
v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A
party's objections to this Recommendation must be ...