AngioDynamics, Inc. v. Biolitec AG

305 F. Supp. 3d 300
CourtDistrict Court, District of Columbia
DecidedMarch 29, 2018
DocketC.A. NO. 09–cv–30181–MAP
StatusPublished

This text of 305 F. Supp. 3d 300 (AngioDynamics, Inc. v. Biolitec AG) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AngioDynamics, Inc. v. Biolitec AG, 305 F. Supp. 3d 300 (D.D.C. 2018).

Opinion

PONSOR, U.S.D.J.

I. INTRODUCTION

Plaintiff has filed three motions seeking various sanctions for Defendants' deliberate refusal to comply with this court's post-judgment discovery orders. Defendants' counsel does not deny that his clients have knowingly and intentionally flouted these orders. Indeed, this most recent conduct of Defendant Wolfgang Neuberger is perfectly consistent with Neuberger's pattern of unscrupulous and dishonorable conduct both as a litigant and a businessman, over many years.1

After a summary of the pertinent procedural background, the court's rulings on the motions are set forth below. As will be seen, the court will allow Plaintiff's first motion, in part, declining to enter judgment as requested but imposing a monetary contempt sanction as an alternative. It will allow the second motion for attorney's fees, imposing this sanction on both Defendants and their counsel. It will deny the third motion.

II. PROCEDURAL BACKGROUND

The numerous decisions already issued by this court and by the First Circuit make it unnecessary to recite a fine *303grained history of the background of this case. See generally AngioDynamics, Inc. v. Biolitec AG, 880 F.3d 600 (1st Cir. 2018) (declining, "reluctantly," to impose sanctions on defense counsel); AngioDynamics, Inc. v. Biolitec AG, 880 F.3d 596 (1st Cir. 2018) (affirming district court's denial of Defendants' motion for relief under Rule 60(a) and 60(b)(5) ); AngioDynamics, Inc. v. Biolitec AG, 991 F.Supp.2d 283 (D. Mass. 2014) (entering default judgment against Defendants on the issue of liability as a sanction for misconduct during the course of discovery), and AngioDynamics, Inc. v. Biolitec AG, 991 F.Supp.2d 299 (D. Mass. 2014) (entering judgment for Plaintiff in the amount of $74,920,422.57), both aff'd, 780 F.3d 429 (1st Cir. 2015) ; AngioDynamics, Inc. v. Biolitec AG, 946 F.Supp.2d 205 (D. Mass. 2013) (allowing Plaintiff's emergency motion for sanctions, issuing an arrest warrant for Defendant Neuberger for civil contempt, and levying coercive fines), aff'd and remanded in part, 780 F.3d 420 (1st Cir. 2015) ; AngioDynamics, Inc. v. Biolitec AG, 910 F.Supp.2d 346 (D. Mass. 2012) (denying Defendants' emergency motion for reconsideration of the preliminary injunction order).

Even with this overview, the narrative summary needed to put the court's current rulings in context is unfortunately somewhat lengthy.

The story begins with a supply and distribution agreement Defendant Biolitec, Inc., entered into with Plaintiff, which included a provision requiring Biolitec to hold Plaintiff harmless from any damages resulting from patent infringement litigation arising from the sale by Plaintiff of Biolitec's products. When Plaintiff found itself the target of precisely the patent litigation contemplated, Biolitec reneged on its agreement. Plaintiff sued to enforce the agreement in the Northern District of New York, and in 2012 it obtained a judgment against Biolitec in the amount of $23,156,287.00. (Dkt. No. 205, Attach. 1 at 7.)

To avoid paying this judgment, two related Biolitec entities, Biomed Technology Holdings, Ltd., and Biolitec AG, looted Biolitec, removing all its assets so that it would essentially be judgment-proof. The upshot was this lawsuit, filed in October 2009 against three corporations and one individual: Biolitec, Inc. (a Massachusetts corporation); Biolitec AG (a German corporation); Biomed Technology Holdings, Ltd. (a Malaysian corporation); and Dr. Wolfgang Neuberger, president, CEO, Chairman, and dominant shareholder of Biolitec AG as well as numerous affiliated entities. During the preliminary stage of the litigation, Neuberger dodged service of process energetically, greatly delaying the litigation. (May 17, 2011, Mem. & Order at 3 (remarking on Defendant Neuberger's "evasive conduct" and his counsel's "possibly inadvertent but nevertheless misleading statements"), Dkt. No. 47.)

A critical moment in the lawsuit occurred in August 2012, when Plaintiff learned of the plans of Biolitec AG to merge with its Austrian subsidiary. Persuaded that this move was intended to make any judgment obtained against Biolitec AG in this court unenforceable, the court granted a preliminary injunction prohibiting the merger. (Order dated Aug. 29, 2012, Dkt. No. 126.) Subsequent motions to reconsider and to vacate in December 2012 and February 2013 were denied, and Defendants appealed to the First Circuit. All during this time, Defendants' counsel repeatedly assured this court that his clients, though disagreeing, would respect the injunction and not proceed with the merger. In the teeth of these assurances, and while Defendants' appeal was pending, Neuberger intentionally violated the preliminary injunction by organizing and consummating the Biolitec AG downstream merger into Austria. As a result, on March 22, *3042013, Plaintiff filed its first Motion for Contempt. (Dkt. No. 205.)

On April 1, 2013, the First Circuit affirmed the issuance of the preliminary injunction, noting that the "troubling questions about Defendants' good faith" raised before the district court were even "more disquieting in light of defendants' decision to complete [the] merger ... notwithstanding the court's preliminary injunction." AngioDynamics, Inc. v. Biolitec AG, 711 F.3d 248, 250 n.1 (1st Cir. 2013).

In connection with Plaintiff's motion for contempt, the court ordered Defendant Neuberger to appear in person to show cause why he should not be sanctioned. After Defendants' counsel informed the court that Neuberger refused to appear, the court issued a warrant for his arrest. This warrant is still outstanding. Someday, perhaps, it may result in his well-deserved apprehension.

In addition to the warrant for arrest, the court, on April 11, 2013, allowed Plaintiff's motion for contempt. This ruling provoked motions by Defendants for reconsideration and for recusal.

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Related

AngioDynamics, Inc. v. Biolitec AG
711 F.3d 248 (First Circuit, 2013)
AngioDynamics, Inc. v. Biolitec AG
780 F.3d 429 (First Circuit, 2015)
AngioDynamics, Inc. v. Biolitec AG
780 F.3d 420 (First Circuit, 2015)
AngioDynamics, Inc. v. Biolitec AG
823 F.3d 1 (First Circuit, 2016)
AngioDynamics, Inc. v. Biolitec AG
880 F.3d 596 (First Circuit, 2018)
AngioDynamics, Inc. v. Biolitec AG
880 F.3d 600 (First Circuit, 2018)
Angiodynamics, Inc. v. Biolitec AG
910 F. Supp. 2d 346 (D. Massachusetts, 2012)
AngioDynamics, Inc. v. Biolitec AG
946 F. Supp. 2d 205 (D. Massachusetts, 2013)
AngioDynamics, Inc. v. Biolitec AG
991 F. Supp. 2d 283 (D. Massachusetts, 2014)
AngioDynamics, Inc. v. Biolitec AG
991 F. Supp. 2d 299 (D. Massachusetts, 2014)

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Bluebook (online)
305 F. Supp. 3d 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angiodynamics-inc-v-biolitec-ag-dcd-2018.