Before we get too deep into the weeds on round 237 of the Mavexar saga, I wanted to propose a mascot. Something we can use on the site so that you can instantly spot one of these posts (you can also use the tags, of course). Having given it all the thought I am prepared to, I propose Mavexar the crab-monster.
Here he is happily greeting you and welcoming you to sit by his fire.
Andrew may have a competing vision, but for now, look for Crab Man!
Anyway.
A Missed Deadline
Following the Federal Circuit's denial of Nimitz's Mandamus petition last week, we saw our first action from Judge Connolly on these newly un-stayed cases. I had not recalled that, under his original order, the plaintiff was scheduled to produce the documents related to its relationship with Mavexar and IP Edge by December 8. As it happens, that was the same day the Federal Circuit lifted the stay.
Neither the Federal Circuit's preliminary stay order, nor its ultimate denial of the mandamus petition adjusted that deadline. Nor, apparently, did Nimitz request the District Court amend that deadline.
So the 8th came and went with no production of documents. Indeed, up through yesterday there is no mention of the submission on the docket, which ultimately led the Court to issue a brief order requiring Nimitz to "show cause as to why it should not be sanctioned for failure to comply with the November 10 Memorandum Order." Nimitz Technologies LLC v. CNET Media, Inc. C.A. No. 21-1247-CFC, D.I. 37 (D. Del. Dec. 14, 2022). The Court did note, however, it would be inclined to extend the deadline if "Nimitz shows cause for its failure to comply with the November 10 Memorandum Order . . . ." Id.
It Gets Worse
Nimitz had not been idle during the week since the stay was lifted, however. The same day the stay was lifted they filed a "Motion to Withdraw the Court's Memorandum of November 30, 2022."
The gist of the argument is that the Court lacked the authority to issue the memorandum, largely rehashing the arguments from the various Mavexar-related Federal Circuit petitions.
The word "inquisition" appears 8 times, and it closes with a call for recusal.
I will admit, I've never seen this particular motion before -- given how it went, I don't expect to see one again. The Court's Order on the motion got straight to the point:
Nimitz has filed a Motion to Withdraw the Court's Memorandum of November 30, 2022. The motion is devoid of merit, and I will therefore summarily deny it.
Nimitz Technologies LLC v. CNET Media, Inc. C.A. No. 21-1247-CFC, D.I. 36 (D. Del. Dec. 14, 2022).
The Order also contained an interesting clarification of the standing order regarding corporate disclosure statements. Nimitz had argued in its brief that it actually did not need to file an amended corporate disclosure statement because the standing order applies only to limited liability corporations, while it was a limited liability company.
The Court disagreed, noting:
Courts, however, including the United States Supreme Court and the Federal Circuit, routinely refer to limited liability companies as "limited liability corporations." [very long string cite]. And the Delaware Supreme Court and the Delaware Court of Chancery have referred to Delaware limited liability companies as limited liability corporations. [another string cite]
That courts use "company" and "corporation" interchangeably makes sense because the terms are synonyms. See BLACK'S LA w DICTIONARY 350 (11th ed. 2019) (defining "company" as "[a] corporation-or, less commonly, an association, partnership, or union-that carries on a commercial or industrial enterprise")
Id. at 2-4.
So there you have it, to the extent there was any doubt that a limited liability company needed to abide by the terms of the standing order, it is now put to bed.
We will, of course, let you know if and when we see those documents produced.
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