Re: PACER (Casio) Thank you silversurfer !..eom
in response to
by
posted on
Jul 21, 2008 08:42PM
THANKS SILVER,
Important part of todays re-reply to VIVITAR by eDIGITAL
Motion To Consolidate Cases And Transfer And Reassign Action (“Reply”). First, Vivitar admits for the first time in its Reply that e.Digital will be prejudiced by a consolidation, transfer and reassignment of this action to the Judge handling the
Avid Action
, but
argues that the prejudice would be minimal. (Doc. No. 13, Vivitar’s Reply at 2 (“Any prejudice to e.Digital is minimal....”). Similar to Vivitar’s other arguments in its Motion (Doc. No. 30) and its Reply, Vivitar bases this argument on incorrect assumptions, rather than facts. Although the trial in this action is scheduled to begin in August of 2010, the parties already have commenced 2 discovery and have made disclosures required by the Local Patent Rules. On the other hand, the Court in the
Avid Action
has not even set a trial date or the intervening deadlines between now
and the trial. Thus, it is impossible for Vivitar to accurately characterize the prejudicial delay that e.Digital may suffer as “minimal” until after the Court in the
Avid Action
enters a scheduling
order. If any assumption is to be made, the logical assumption is that the
Avid Action
that
commenced six months after this action will likely trail this action by several months, if not a year. Second, Vivitar’s argument that its Motion should be granted because of an alleged conflict related to the involvement of Judge Ward in this case and Thomas J. Ward, Jr., who is local counsel in the
Avid Action
, is circular. Vivitar argues that the alleged conflict necessitates
the transfer and reassignment requested in Vivitar’s Motion; however, the alleged conflict would not exist but for Vivitar’s Motion. Accordingly, Vivitar’s argument does not justify the Court disregarding Local Rule CV-42, as proposed by Vivitar and based on an alleged conflict created by Vivitar’s Motion itself.
CONCLUSION
For the reasons stated herein and in e.Digital’s Opposition Brief, Vivitar’s Motion should
be denied.