In this patent infringement action, the parties filed a joint motion to request that the district court sever Defendant Contour, LLC ("Contour") from the case. VStream, the plaintiff, had not effected service on Contour until after the scheduling conference, so Contour had no ability to participate in the dates selected by the court.
The court explained that "[t]ypically, cases of this nature are consolidated after being filed and then set for a scheduling conference, at which time the parties receive Markman hearing and trial dates. Because those dates are set at the time of the scheduling conference and commemorated in the Docket Control Order issued by the Court, the Court is not inclined to revise them other than in exceptional circumstances."
The court then found that there were no exceptional circumstances that justified severing Contour from the schedule already selected by the court. "Here, trial is set for March 13, 2017, and the Markman hearing is set for August 4, 2016. Considering that Contour was served on March 2, 2016, the parties have had adequate time to compensate for any delay caused by late service. In fact, according to the Docket Control Order, all deadlines except two--the filing of infringement contentions and the filing of notice of a mediator--follow the effectuation of service on March 2, 2016."
As a result, the court determined that the most efficient way to proceed was to keep Contour in the case as currently scheduled. "As such, the Court disagrees that the proper course is to sever Contour from this consolidated action. The most efficient and effective means of litigating this case is for all parties to remain on the set schedule with a trial date of March, 13, 2017."
VStream Technologies, LLC v. PLR IP Holdings, LLC, Case No. 6:15-CV-974-JRG-JDL (E.D. Tex. June 9, 2016)