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Pacer - Another Apple request from the judge for order shortening time !!!
almost 11 years
ago
17
in response to
sman998's message
Sarah Barrows (Bar No. 253278) barrowss@gtlaw.com Stephen Ullmer (Bar No. 277537) ullmers@gtlaw.com GREENBERG TRAURIG LLP 4 Embarcadero Center, Suite 3000 San Francisco, CA 94111 Tel: (415) 655-1300 Fax: (415) 707-2010 James J. DeCarlo (
)
decarloj@gtlaw.com GREENBERG TRAURIG LLP 200 Park Avenue Florham Park, NJ 07932 Tel: (973) 360-7900 Fax: (973) 301-8410 Kevin J. O’Shea (
)
osheak@gtlaw.com GREENBERG TRAURIG LLP 77 West Wacker Drive Chicago, IL 60601 Tel: (312) 456-8400 Fax: (312) 456-8435 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff, v. APPLE Inc., a California Corporation, Defendants. CASE NO. 13CV0785 DMS WVG
DEFENDANTS’ REPLY IN SUPPORT
OF EX PARTE APPLICATION FOR
ORDER SHORTENING TIME
Assigned to: Hon. Dana M. Sabraw
Courtroom: 13A
Apple is moving to amend the Stipulated Judgment of Non-Infringement to
allow any appeal of the Collateral Estoppel Order in this case to be heard concurrently with the appeal in the
Huawei case, and to stay the pending
e.Digital
cases pending appeal in order to preserve the Court’s and the parties’ resources,
and to avoid duplicative briefing at the Federal Circuit and multiple
Markman
proceedings before this Court. Apple requests an expedited briefing schedule so
that the parties can remain as close as possible to the schedule entered by the
Federal Circuit in the
Huawei
appeal.
I. Apple’s Interests are Materially Harmed Absent an Expedited Schedule
As discussed more fully in Apple’s Application, the timeline of the
Huawei appeal will impact whether any appeal in this case will be heard concurrently with the
Rec. Doc. No. 55.) Plaintiff’s opening brief in the
Huawei
appeal is due December 9, 2013—before this Court is scheduled to hear
argument on the Motion to Amend the Judgment and Motion to Stay. (
Rec.
Doc. No. 55 (motion currently set for hearing on December 20, 2013).) Plaintiff states without reasoning or support that the Federal Circuit might schedule
after the Court amends the Partial Judgment in
this case to allow for appeal of the Collateral Estoppel Order. This argument is not logically sound. In particular, if the present schedule is maintained for the pending Motion to Amend the Stipulated Partial Judgment Pursuant to Rule 54(b), the briefing in the
appeal will have been completed and oral argument
scheduled before Plaintiff and Apple even complete their briefing in an appeal from the Collateral Estoppel Order in this case. Therefore, the likelihood of consolidation would be greatly diminished. Alternatively, the schedule for all appeals of the Collateral Estoppel Order will be significantly delayed. Plaintiff’s argument that Apple’s interests are
being represented at
the Federal Circuit by a competitor is premised on faulty information. Initially,
Apple and Huawei are not in a joint defense group for purposes of appeal. Moreover, Apple’s interests cannot be properly represented by a third-party competitor, especially given that Apple is not informed of the terms of the settlement that Huawei entered into with Plaintiff.
1
II. Plaintiff is not Prejudiced by an Expedited Briefing Schedule. Plaintiff has been aware of Apple’s intent to file the Motion to Amend and the Motion to Stay, as well as the substantive bases for these motions, since October 14, 2013. (
) The motions are neither
lengthy nor legally complex, and Plaintiff is well aware of the underlying facts. Therefore, Plaintiff will have had ample time to formulate arguments as to why the Court should not enter a final judgment, as to why the Federal Circuit should address an identical issue in multiple appeals, and as to why this Court should potentially conduct two claim construction hearings.
III. Apple did not Cause the Need for Ex Parte Relief
Apple does not dispute that it was aware that Plaintiff intended to eventually
appeal the Collateral Estoppel Order. But that is very different from knowing that
Plaintiff intended to
immediately
appeal that Order. During the negotiations of the
parties’ stipulated partial judgment in this case, Plaintiff hid the fact that it
already
had secured the right to file an immediate appeal of the Collateral Estoppel Order.
plan, it would have required that the stipulated partial agreement include a Rule 54(b) certification, so that the appeals could be taken together. The current situation would have been avoided if Plaintiff had simply informed Apple and the other Defendants of its intention to immediately appeal the Collateral Estoppel Order. Instead, Plaintiff hid the ball. Apple and the other Defendants cannot be faulted for what they did not—and could not—know. Plaintiff’s argument that Apple and the other Defendants should have foreseen the current situation is equally applicable to Plaintiff. Plaintiff should have known—and likely did know—that Apple and other Defendants would seek to participate in any appeal. Notably, despite arguing various substantive issues in its Opposition to the Application to Shorten Time, Plaintiff did not explain why— or if—it objects to an amendment of the Stipulated Partial Judgment to include a Rule 54(b) certification. IV. Conclusion
Apple and other Defendants seek to prevent a situation where the parties’
rights are adjudicated without all parties being present and allowed to represent
themselves. Shortening the briefing schedule as requested in the Application to
Shorten Time will significantly increase the likelihood that the appeals will be
heard together, and reduce the overall time for the Federal Circuit’s consideration
of the Collateral Estoppel Order.
Had Plaintiff told Apple and the other Defendants about its strategy, the
Defendants could have taken that into consideration when negotiating their
respective stipulated partial judgments. Indeed, had Apple known about Plaintiff’s
1
For example, it is possible that the settlement agreement incentivizes Huawei to
not vigorously defend this Court’s ruling at the Federal Circuit.
See Allflex USA,
Inc. v. Avid Identification Sys., Inc. , 704 F.3d 1362, 1366-67 (Fed. Cir. 2013).
2
Apple sought Plaintiff’s consent to the motions prior to filing, in part because it
assumed that Plaintiff would grant that consent, considering that the Collateral
Estoppel Order was already being appealed.
DATED: October 23, 2013 GREENBERG TRAURIG, LLP
By
/s/ Kevin J. O’Shea Kevin J. O’Shea (
)
osheak@gtlaw.com GREENBERG TRAURIG LLP
77 West Wacker Drive Chicago, IL 60601 Tel: (312) 456-8400 Fax: (312) 456-8435
Sarah Barrows (Bar No. 253278) barrowss@gtlaw.com Stephen Ullmer (Bar No. 277537) ullmers@gtlaw.com GREENBERG TRAURIG LLP 4 Embarcadero Center, Suite 3000 San Francisco, CA 94111 Tel: (415) 655-1300 Fax: (415) 707-2010 James J. DeCarlo (
) decarloj@gtlaw.com GREENBERG TRAURIG LLP 200 Park Avenue Florham Park, NJ 07932 Tel: (973) 360-7900 Fax: (973) 301-8410 Attorneys for Defendant Apple Inc
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sman998
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