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Pacer : O’Shea(Apple) & Kohm(Woodman Labs ) wants no EDIG surreply !!!
almost 11 years
ago
22
in response to
Giants's message
e.Digital Corporation,
Plaintiff,
v.
Apple Inc.,
Defendant.
Case No. 3:13-cv-00785 DMS-WVG
DEFENDANTS’ RESPONSE TO
E.DIGITAL CORPORATION’S
OBJECTIONS TO DEFENDANTS’
REPLY IN SUPPORT OF MOTION
TO AMEND
DEMAND FOR JURY TRIAL
Hearing Date: Dec. 20, 2013, 1:30 pm
Assigned to: Hon. Dana M. Sabraw
Courtroom: 13A
e.Digital Corporation,
Plaintiff,
v.
Woodman Labs, Inc. dba GoPro,
Defendant.
Plaintiff,
v.
Apple Inc.,
Defendant.
Case No. 3:13-cv-00785 DMS-WVG
DEFENDANTS’ RESPONSE TO
E.DIGITAL CORPORATION’S
OBJECTIONS TO DEFENDANTS’
REPLY IN SUPPORT OF MOTION
TO AMEND
DEMAND FOR JURY TRIAL
Hearing Date: Dec. 20, 2013, 1:30 pm
Assigned to: Hon. Dana M. Sabraw
Courtroom: 13A
e.Digital Corporation,
Plaintiff,
v.
Woodman Labs, Inc. dba GoPro,
Defendant.
Defendants’ Reply contains no objectionable “new matter.” To the contrary,
Defendants’ arguments and discussion in their Reply are consistent with the
arguments in Defendants’ opening brief, and respond to Plaintiff’s arguments in its
Opposition. This is the purpose of a reply brief, and the Court should overrule
Plaintiff’s objections. Furthermore, the Court should deny Plaintiff’s request for a
surreply because there is nothing “new” in the reply to which Plaintiff has not
already had an opportunity to respond.
I. Defendants’ Reply Contains No “New Matter”
The arguments and discussion in Defendants’ Reply to which Plaintiff
objects are consistent with Defendants’ opening brief, and they properly respond to
Plaintiff’s arguments in its Opposition. Therefore, Defendants’ Reply contains no
objectionable “new matter,” and the Court should overrule Plaintiff’s objections.
Levias v. Pacific Maritime Ass’n, No. 08-cv-1610-JPD, 2010 WL 431884, *2
(W.D. Wash. Jan. 27, 2010) (“[A] reply brief provides an avenue for a movant to
respond to arguments presented by the non-moving party.”).
A. Defendants Explained In Their Opening And Reply Briefs That
Plaintiff Cannot Appeal The Collateral Estoppel Order From Just
One Case
Defendants explained in their opening brief that the Court should amend the
Stipulated Judgments to avoid multiple appeals of the Collateral Estoppel Order,
which rests on legal issues that are common to all of the pending cases, rather than
factual issues relevant to just one case. (See, e.g., Dkt. No. 53-1, Opening Brief, at
9-10.) Indeed, preventing multiple appeals of an issue is recognized as a basis for
certifying an order for immediate appeal. (Id. (citing U.S. ex rel. Technica, LLC v.
Carolina Casualty Ins. Co., Civil No. 08cv1673 JAH (CAB), 2011 WL 1121276,
*3 (S.D. Cal. Mar. 21, 2011) (quoting Wood v. GCC Bend, LLC, 422 F.3d 873, 878
n.2 (9th Cir. 2005))).) Plaintiff responded to this point by arguing throughout its
Opposition that it is allowed to take an immediate appeal from any one of these
Defendants’ arguments and discussion in their Reply are consistent with the
arguments in Defendants’ opening brief, and respond to Plaintiff’s arguments in its
Opposition. This is the purpose of a reply brief, and the Court should overrule
Plaintiff’s objections. Furthermore, the Court should deny Plaintiff’s request for a
surreply because there is nothing “new” in the reply to which Plaintiff has not
already had an opportunity to respond.
I. Defendants’ Reply Contains No “New Matter”
The arguments and discussion in Defendants’ Reply to which Plaintiff
objects are consistent with Defendants’ opening brief, and they properly respond to
Plaintiff’s arguments in its Opposition. Therefore, Defendants’ Reply contains no
objectionable “new matter,” and the Court should overrule Plaintiff’s objections.
Levias v. Pacific Maritime Ass’n, No. 08-cv-1610-JPD, 2010 WL 431884, *2
(W.D. Wash. Jan. 27, 2010) (“[A] reply brief provides an avenue for a movant to
respond to arguments presented by the non-moving party.”).
A. Defendants Explained In Their Opening And Reply Briefs That
Plaintiff Cannot Appeal The Collateral Estoppel Order From Just
One Case
Defendants explained in their opening brief that the Court should amend the
Stipulated Judgments to avoid multiple appeals of the Collateral Estoppel Order,
which rests on legal issues that are common to all of the pending cases, rather than
factual issues relevant to just one case. (See, e.g., Dkt. No. 53-1, Opening Brief, at
9-10.) Indeed, preventing multiple appeals of an issue is recognized as a basis for
certifying an order for immediate appeal. (Id. (citing U.S. ex rel. Technica, LLC v.
Carolina Casualty Ins. Co., Civil No. 08cv1673 JAH (CAB), 2011 WL 1121276,
*3 (S.D. Cal. Mar. 21, 2011) (quoting Wood v. GCC Bend, LLC, 422 F.3d 873, 878
n.2 (9th Cir. 2005))).) Plaintiff responded to this point by arguing throughout its
Opposition that it is allowed to take an immediate appeal from any one of these
consolidated cases, without any need for a Rule 54(b) certification, and therefore
that Defendants should have anticipated an immediate appeal of the Collateral
Estoppel Order from just one of these cases. (See, e.g., Dkt. No. 61, Oppn., at 15
(“Entry of a final, appealable judgment in any of the pending In re e.Digital cases
prior to the other ones was entirely foreseeable long before the Huawei settlement
was entered into.”); id. at 16 (“the fact that any one of those cases could proceed to
a final judgment—whether by summary judgment, motion for judgment on the
pleadings, or by settlement--before another is not only foreseeable, it was and is
almost certain.”); id. at 22 (“the potential for multiple appeals exists regardless of
whether any appeals in the remaining Defendants’ cases are consolidated with the
appeal in the Huawei case.”).)
Defendants responded to Plaintiff’s opposition arguments by discussing
Federal Circuit precedent showing that the premise of Plaintiff’s arguments—i.e.,
that it can appeal from any of these consolidated cases without requesting
certification—is wrong. (Dkt. No. 66, Reply, at 1-7.) Consistent with their
arguments in the opening brief, Defendants explained that an appeal cannot be
taken from any of these consolidated cases until either (i) the District Court certifies
the relevant order for immediate appeal in all of the consolidated cases that would
be affected by the Federal Circuit’s ruling in such an appeal, or (ii) the cases have
all reached final resolution. (Id. (citing Spraytex, Inc. v. DJS&T, 96 F.3d 1377,
1382 (Fed. Cir. 1996); Boston Edison Co. v U.S., 299 Fed. App’x 956, 957-58 (Fed.
Cir. 2008) (citing Spraytex, 96 F.3d at 1382); In re Papst Licensing GmbH & Co.
KG Litigation, -- F.Supp.2d --, No. 07-493 (RMC), 2013 WL 6017788 (D.D.C.
Nov. 14, 2013) (“Absent Rule 54(b) certification, there may be no appeal of a
judgment disposing of fewer than all aspects of a consolidated case.” (quoting
Spraytex, 96 F.3d at 1382)).) Because the underlying premise of Plaintiff’s
argument is wrong, Plaintiff’s “foreseeability” argument, which relies entirely on
that Defendants should have anticipated an immediate appeal of the Collateral
Estoppel Order from just one of these cases. (See, e.g., Dkt. No. 61, Oppn., at 15
(“Entry of a final, appealable judgment in any of the pending In re e.Digital cases
prior to the other ones was entirely foreseeable long before the Huawei settlement
was entered into.”); id. at 16 (“the fact that any one of those cases could proceed to
a final judgment—whether by summary judgment, motion for judgment on the
pleadings, or by settlement--before another is not only foreseeable, it was and is
almost certain.”); id. at 22 (“the potential for multiple appeals exists regardless of
whether any appeals in the remaining Defendants’ cases are consolidated with the
appeal in the Huawei case.”).)
Defendants responded to Plaintiff’s opposition arguments by discussing
Federal Circuit precedent showing that the premise of Plaintiff’s arguments—i.e.,
that it can appeal from any of these consolidated cases without requesting
certification—is wrong. (Dkt. No. 66, Reply, at 1-7.) Consistent with their
arguments in the opening brief, Defendants explained that an appeal cannot be
taken from any of these consolidated cases until either (i) the District Court certifies
the relevant order for immediate appeal in all of the consolidated cases that would
be affected by the Federal Circuit’s ruling in such an appeal, or (ii) the cases have
all reached final resolution. (Id. (citing Spraytex, Inc. v. DJS&T, 96 F.3d 1377,
1382 (Fed. Cir. 1996); Boston Edison Co. v U.S., 299 Fed. App’x 956, 957-58 (Fed.
Cir. 2008) (citing Spraytex, 96 F.3d at 1382); In re Papst Licensing GmbH & Co.
KG Litigation, -- F.Supp.2d --, No. 07-493 (RMC), 2013 WL 6017788 (D.D.C.
Nov. 14, 2013) (“Absent Rule 54(b) certification, there may be no appeal of a
judgment disposing of fewer than all aspects of a consolidated case.” (quoting
Spraytex, 96 F.3d at 1382)).) Because the underlying premise of Plaintiff’s
argument is wrong, Plaintiff’s “foreseeability” argument, which relies entirely on
that faulty premise, also is wrong because it presumes that Defendants should have
foreseen that Plaintiff would ignore Federal Circuit precedent and file an appeal for
which there is no appellate jurisdiction. (Id.)
Therefore, Defendants’ reply arguments and discussion to which Plaintiff
objects respond directly to Plaintiff’s arguments in its Opposition and are not
objectionable “new matter.” See Levias, No. 08-cv-1610-JPD, 2010 WL 431884, at
*3 (explaining that “there is no unfairness in allowing Defendants to respond in
their reply brief to new arguments presented by Plaintiffs in their opposition.”).
B. Defendants’ Arguments That The Jurisdictional Defect In The
Huawei Appeal Does Not Render The Motion Moot Respond to
Plaintiff’s Opposition Arguments Regarding Whether The Court
Should Certify The Collateral Estoppel Order In Defendants’
Cases
Plaintiff argues in its Opposition that the present motion is moot because a
Rule 54(b) certification of the Collateral Estoppel Order in Defendants’ cases will
not avoid multiple appeals, and Defendants have other ways to participate in the
Huawei appeal, including assuming that Huawei can, and will, represent the
Defendants’ diverse interests. (Dkt. No. 61, Oppn., 1-8 (discussing all pending In
re e.Digital cases); id. at 12-13 (arguing that all affected Defendants could simply
file a single amicus curiae brief1); id. at 19 (speculating that all Defendants’
interests, including Huawei, despite its dismissal, may be represented by one
Defendant); id. at 20-24 (arguing that multiple, seriatim appeals from all of the
consolidated In re e.Digital cases are likely).)
Defendants responded to these arguments by first explaining, as discussed
above, that Plaintiff is wrong about multiple, seriatim appeals being taken from
foreseen that Plaintiff would ignore Federal Circuit precedent and file an appeal for
which there is no appellate jurisdiction. (Id.)
Therefore, Defendants’ reply arguments and discussion to which Plaintiff
objects respond directly to Plaintiff’s arguments in its Opposition and are not
objectionable “new matter.” See Levias, No. 08-cv-1610-JPD, 2010 WL 431884, at
*3 (explaining that “there is no unfairness in allowing Defendants to respond in
their reply brief to new arguments presented by Plaintiffs in their opposition.”).
B. Defendants’ Arguments That The Jurisdictional Defect In The
Huawei Appeal Does Not Render The Motion Moot Respond to
Plaintiff’s Opposition Arguments Regarding Whether The Court
Should Certify The Collateral Estoppel Order In Defendants’
Cases
Plaintiff argues in its Opposition that the present motion is moot because a
Rule 54(b) certification of the Collateral Estoppel Order in Defendants’ cases will
not avoid multiple appeals, and Defendants have other ways to participate in the
Huawei appeal, including assuming that Huawei can, and will, represent the
Defendants’ diverse interests. (Dkt. No. 61, Oppn., 1-8 (discussing all pending In
re e.Digital cases); id. at 12-13 (arguing that all affected Defendants could simply
file a single amicus curiae brief1); id. at 19 (speculating that all Defendants’
interests, including Huawei, despite its dismissal, may be represented by one
Defendant); id. at 20-24 (arguing that multiple, seriatim appeals from all of the
consolidated In re e.Digital cases are likely).)
Defendants responded to these arguments by first explaining, as discussed
above, that Plaintiff is wrong about multiple, seriatim appeals being taken from
these consolidated cases without certification of any order or judgment from which
a party wishes to file an appeal. Defendants also explained that if the Federal
Circuit dismisses the Huawei appeal, whether in response to a motion by one of the
parties or of its own accord, Rule 54(b) provides a procedural mechanism for
Plaintiff to resolve the jurisdictional defect. Assuming that Plaintiff follows the
procedure provided for in Rule 54(b), as explained in Pause Tech. LLC v. TiVo Inc.,
401 F.3d 1290 (Fed. Circ. 2005), the Court will be faced with the same issues
addressed by the present motion. (Dkt. No. 66, Reply, at 10 (citing PauseTech, 401
F.3d at 1295).2)
Plaintiff had an opportunity to address these issues, and it did so throughout
its Opposition. Therefore, these arguments and discussion in Defendants’ Reply
are not objectionable new matter, and the Court should overrule Plaintiff’s
objections.
C. Defendants Appropriately Responded To Plaintiff’s Arguments
Regarding The Co-Pending Motion To Stay
Plaintiff refers to the co-pending Motion to Stay several times in its
Opposition. (See, e.g., Dkt. No. 61, Oppn., at 5 (arguing that the present motion is
a “pretext for obtaining a stay of the entire action” and that “this motion (and the
stay motion) should be denied.”); id. at 24 (opposing Defendants’ argument that a
stay is appropriate to avoid multiple rounds of claim construction proceedings and
multiple Markman hearings).) Moreover, Plaintiff incorporates its Opposition to
the Motion to Amend into its Opposition to the Motion to Stay. (Dkt. No. 65,
Oppn. to Mtn to Stay, at 1 (“Plaintiff…opposes this motion to stay on the same
basis as it opposes [Defendants’ Motion to Amend]. If the Apple Motion to Amend
is denied, then this motion (‘motion to stay’ or ‘motion’) is moot.”).) Therefore, it
2 Defendants cited Pause Tech. both in their opening brief, (Dkt. No. 53-1 at 6), and
a party wishes to file an appeal. Defendants also explained that if the Federal
Circuit dismisses the Huawei appeal, whether in response to a motion by one of the
parties or of its own accord, Rule 54(b) provides a procedural mechanism for
Plaintiff to resolve the jurisdictional defect. Assuming that Plaintiff follows the
procedure provided for in Rule 54(b), as explained in Pause Tech. LLC v. TiVo Inc.,
401 F.3d 1290 (Fed. Circ. 2005), the Court will be faced with the same issues
addressed by the present motion. (Dkt. No. 66, Reply, at 10 (citing PauseTech, 401
F.3d at 1295).2)
Plaintiff had an opportunity to address these issues, and it did so throughout
its Opposition. Therefore, these arguments and discussion in Defendants’ Reply
are not objectionable new matter, and the Court should overrule Plaintiff’s
objections.
C. Defendants Appropriately Responded To Plaintiff’s Arguments
Regarding The Co-Pending Motion To Stay
Plaintiff refers to the co-pending Motion to Stay several times in its
Opposition. (See, e.g., Dkt. No. 61, Oppn., at 5 (arguing that the present motion is
a “pretext for obtaining a stay of the entire action” and that “this motion (and the
stay motion) should be denied.”); id. at 24 (opposing Defendants’ argument that a
stay is appropriate to avoid multiple rounds of claim construction proceedings and
multiple Markman hearings).) Moreover, Plaintiff incorporates its Opposition to
the Motion to Amend into its Opposition to the Motion to Stay. (Dkt. No. 65,
Oppn. to Mtn to Stay, at 1 (“Plaintiff…opposes this motion to stay on the same
basis as it opposes [Defendants’ Motion to Amend]. If the Apple Motion to Amend
is denied, then this motion (‘motion to stay’ or ‘motion’) is moot.”).) Therefore, it
2 Defendants cited Pause Tech. both in their opening brief, (Dkt. No. 53-1 at 6), and
was appropriate for Defendants to tell the Court that within the last week Plaintiff
has filed more than three dozen new lawsuits, in which it asserts one of the patents
that is at issue in the Huawei appeal. (Dkt. No. 66, Reply, at 2.) The filing of these
39 new lawsuits support staying the pending consolidated cases so that, at the very
least, the Court may address the new cases.3
II. Defendants’ Discussion Of The Huawei Appeal Responds To Plaintiff’s
Objections Without Seeking Any Action By This Court With Respect To
The Huawei Appeal
Defendants recognize that this Court does not have jurisdiction over the
pending Huawei appeal, and Defendants are not seeking any relief from this Court
in connection with that appeal. Nonetheless, the jurisdictional defect in the Huawei
appeal is relevant to the issues raised in Defendants’ opening brief. That issue is
also responsive to Plaintiff’s arguments in its Opposition that the Court was not
required to certify the Collateral Estoppel Order in order for Plaintiff to file the
Huawei appeal, and that the Court should not certify the Collateral Estoppel Order
in Defendants’ cases.
Both Plaintiff and Huawei have a duty to inform the Federal Circuit about the
jurisdictional defect in the Huawei appeal. See Fed. Cir. R. 28(a)(5) (requiring all
parties in an appeal to include in their briefs a “jurisdictional statement including a
representation that the judgment or order appealed from is final or, if not final, the
basis for appealability (e.g., preliminary injunction, Fed. R. Civ. P. 54(b)
certification of final judgment as to fewer than all of the claims or parties, etc.)”);
see also Fed. R. App. P. 28(a)(4)(B) (requiring all parties to include in their briefs a
jurisdictional statement that sets forth “the basis for the court of appeals’
jurisdiction, with citations to applicable statutory provisions and stating relevant
3 Defendants stated in their Reply that Plaintiff filed 28 new lawsuits on December
5 and 6, 2013. (Dkt. No. 66, Reply, at 2.) Since then, the number of new lawsuits
that Plaintiff has filed has increased to 39
has filed more than three dozen new lawsuits, in which it asserts one of the patents
that is at issue in the Huawei appeal. (Dkt. No. 66, Reply, at 2.) The filing of these
39 new lawsuits support staying the pending consolidated cases so that, at the very
least, the Court may address the new cases.3
II. Defendants’ Discussion Of The Huawei Appeal Responds To Plaintiff’s
Objections Without Seeking Any Action By This Court With Respect To
The Huawei Appeal
Defendants recognize that this Court does not have jurisdiction over the
pending Huawei appeal, and Defendants are not seeking any relief from this Court
in connection with that appeal. Nonetheless, the jurisdictional defect in the Huawei
appeal is relevant to the issues raised in Defendants’ opening brief. That issue is
also responsive to Plaintiff’s arguments in its Opposition that the Court was not
required to certify the Collateral Estoppel Order in order for Plaintiff to file the
Huawei appeal, and that the Court should not certify the Collateral Estoppel Order
in Defendants’ cases.
Both Plaintiff and Huawei have a duty to inform the Federal Circuit about the
jurisdictional defect in the Huawei appeal. See Fed. Cir. R. 28(a)(5) (requiring all
parties in an appeal to include in their briefs a “jurisdictional statement including a
representation that the judgment or order appealed from is final or, if not final, the
basis for appealability (e.g., preliminary injunction, Fed. R. Civ. P. 54(b)
certification of final judgment as to fewer than all of the claims or parties, etc.)”);
see also Fed. R. App. P. 28(a)(4)(B) (requiring all parties to include in their briefs a
jurisdictional statement that sets forth “the basis for the court of appeals’
jurisdiction, with citations to applicable statutory provisions and stating relevant
3 Defendants stated in their Reply that Plaintiff filed 28 new lawsuits on December
5 and 6, 2013. (Dkt. No. 66, Reply, at 2.) Since then, the number of new lawsuits
that Plaintiff has filed has increased to 39
facts establishing jurisdiction”). Defendants brought this jurisdictional issue to the
attention of Plaintiff’s and Huawei’s respective counsel before filing their Reply.
(Dkt. No. 66-2, Declaration of Kevin J. O’Shea in Support of Defendants’ Reply
(“O’Shea Dec.”), Exh. 4.)
As a result of Defendants’ correspondence identifying the jurisdictional
issue, on December 6, 2013, Plaintiff filed an unopposed motion to extend the
deadline for its appellant brief in the Huawei appeal, requesting two additional
weeks—until December 23, 2013—so that it can address the jurisdictional issue.
(Id., Exh. 5.4) Thus, neither Exhibit 4 nor Exhibit 5 existed when Defendants filed
the opening brief. Indeed, Plaintiff filed Exhibit 5 in the Federal Circuit on the
same day that Defendants’ Reply was due in this Court. Moreover, as discussed
above, these issues are both responsive to Plaintiff’s arguments in its Opposition,
and consistent with Defendants’ arguments and discussion in the opening brief.
Therefore, neither the discussion of this issue in Defendants’ Reply, nor Exhibits
4and 5 constitute new matter.
III. Conclusion
Defendants’ Reply in Support of the Motion to Amend contains no
objectionable new matter. Plaintiff had an opportunity to address every issue in its
Opposition, and it did so at great length. Therefore, the Court should overrule
Plaintiff’s objections and deny any request for a surreply.
4 The Federal Circuit granted Plaintiff’s motion on December 9, 2013.
attention of Plaintiff’s and Huawei’s respective counsel before filing their Reply.
(Dkt. No. 66-2, Declaration of Kevin J. O’Shea in Support of Defendants’ Reply
(“O’Shea Dec.”), Exh. 4.)
As a result of Defendants’ correspondence identifying the jurisdictional
issue, on December 6, 2013, Plaintiff filed an unopposed motion to extend the
deadline for its appellant brief in the Huawei appeal, requesting two additional
weeks—until December 23, 2013—so that it can address the jurisdictional issue.
(Id., Exh. 5.4) Thus, neither Exhibit 4 nor Exhibit 5 existed when Defendants filed
the opening brief. Indeed, Plaintiff filed Exhibit 5 in the Federal Circuit on the
same day that Defendants’ Reply was due in this Court. Moreover, as discussed
above, these issues are both responsive to Plaintiff’s arguments in its Opposition,
and consistent with Defendants’ arguments and discussion in the opening brief.
Therefore, neither the discussion of this issue in Defendants’ Reply, nor Exhibits
4and 5 constitute new matter.
III. Conclusion
Defendants’ Reply in Support of the Motion to Amend contains no
objectionable new matter. Plaintiff had an opportunity to address every issue in its
Opposition, and it did so at great length. Therefore, the Court should overrule
Plaintiff’s objections and deny any request for a surreply.
4 The Federal Circuit granted Plaintiff’s motion on December 9, 2013.
Dated: December 11, 2013 GREENBERG TRAURIG LLP
By: s/ Kevin J. O’Shea
Kevin J O’Shea
James J. DeCarlo
Sarah E. Barrows
Stephen M. Ullmer
Attorneys for Apple Inc.
FENWICK & WEST LLP
By: s/ Bryan A. Kohm
Michael J. Sacksteder
Bryan A. Kohm
Erin Simon
Attorneys for Woodman Labs,
By: s/ Kevin J. O’Shea
Kevin J O’Shea
James J. DeCarlo
Sarah E. Barrows
Stephen M. Ullmer
Attorneys for Apple Inc.
FENWICK & WEST LLP
By: s/ Bryan A. Kohm
Michael J. Sacksteder
Bryan A. Kohm
Erin Simon
Attorneys for Woodman Labs,
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