Well Master Corporation v. Flowco Production Solutions, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Christine M. Arguello
Civil Action No. 21-cv-02145-CMA-KAS
WELL MASTER CORP.,
Plaintiff,
v.
FLOWCO PROD. SOLS., LLC,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE SURREPLY
This matter is before the Court on Plaintiff Well Master Corporation’s Motion for
Leave to File Surreply to Defendant’s Reply Claim Construction Brief. (Doc. # 166); see
also (Doc. # 173 (response from Defendant Flowco Production Solutions, LLC).) For the
following reasons, the Motion is denied.
This case concerns the alleged infringement of three patents directed to plunger
devices that, in short, increase the productivity of oil and gas wells. (Doc. # 20 ¶¶ 3, 22–
32 (citing U.S. Patent Nos. 7,395,865; 7,793,728; and 8,627,892).) At present, the
parties are at the claim construction stage. (Docs. ## 80, 128, 150, 157); accord
D.COLO.LPtR 15(a). The parties, however, cannot move this Court to issue a decision
construing the patent claims because, due to Plaintiff’s Motion for Surreply, briefing
remains incomplete. See (Docs. ## 166, 173); accord D.COLO.LPtR 15(d) (requiring
that briefing concludes before filing a “Joint Motion for Determination”).
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Plaintiff’s Motion advances two reasons to permit sur-reply: (1) the reply’s use of
annotated diagrams constitutes “new evidence” and (2) the reply’s citation to Interval
Licensing LLC v. AOL, Inc. implies a “new legal argument.” Compare (Doc. # 157), with
(Doc. # 166).
Neither this district’s Local Civil Rules nor its Local Patent Rules address sur-
reply. D.C.COLO.LPtR 15 (describing the filing of a motion, response, and reply);
D.C.COLO.LCivR. 7.1(d) (same). Courts in this district generally disfavor sur-replies
and, consequently, permit them only in exceptional circumstances—e.g., when a reply
brief raises new legal issues or relies on new facts. E.g., Stump v. Gates, 211 F.3d 527,
533 (10th Cir. 2000) (explaining that denying sur-reply in such circumstances “robs the
[non-movant] of the opportunity to demonstrate that the record does not support [the
movant’s] factual assertions and to present an analysis of the pertinent legal precedent
that may compel a contrary result.”).
Despite careful review of the claim construction briefing and concomitant briefing
on sur-reply, the Court fails to identify either of the circumstances warranting sur-reply.
First, as for “new” facts, the docket belies any complaint of unfair surprise. The
diagrams originate from the patents-in-suit and appear again in Plaintiff’s response.
Compare (Doc. # 150-1 at 2–3 (depicting the two diagrams that Plaintiff views as “new
evidence”)), with (Doc. # 157 at 12, 14 (featuring the same two diagrams with two
colored lines added to each).) The addition of colored lines does not transform the
diagrams into new evidence, and Plaintiff cites no authority to suggest otherwise. (Doc.
# 166 at 1.) Second, turning to “new” legal positions, Plaintiff claims the need to sur-
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reply based on a legal argument that Defendant never made. Neither the claim
construction brief nor the reply cites Interval Licensing LLC for the proposition that a
term of degree is indefinite per se. Rather, Defendant’s position appears to be that
terms of degree are routinely—but not always—found to be indefinite. E.g., (Doc. # 128
at 7, 21 (citing Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014)
(quoting nothing suggesting that a bright-line rule exists)); cf. (Doc. # 173 at 15
(focusing on the Federal Circuit’s technical holding).) The reply simply does not contain
the sweeping argument that Plaintiff imputes to Defendant.
In sum, the Court finds that neither the reply’s incorporation of slightly annotated
diagrams that appeared earlier in the briefing nor the reply’s citation to Interval
Licensing LLC justify granting Plaintiff leave to sur-reply.
For the foregoing reasons, the Court ORDERS that Plaintiff’s Motion for Leave to
File Surreply (Doc. # 166) is DENIED.
DATED: October 16, 2023
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
Senior United States District Judge
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