E.DIGITAL CORPORATION’S OBJECTION TO 3:13-CV-00785-DMS-WVG

APPLE INC.’S MJOP MOTION -1-

HANDAL & ASSOCIATES

1200 THIRD AVE

SUITE 1321

SAN DIEGO, CA 92101

TEL: 619.544.6400

FAX: 619.696.0323

ANTON HANDAL (Bar No. 113812)

anh@handal-law.com

PAMELA C. CHALK (Bar No. 216411)

pchalk@handal-law.com

GABRIEL HEDRICK (Bar No. 220649)

ghedrick@handal-law.com

HANDAL & ASSOCIATES

1200 Third Avenue, Suite 1321

San Diego, California 92101

Tel: 619.544.6400

Fax: 619.696.0323

Attorneys for Plaintiff

e.Digital Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

e.Digital Corporation,

Plaintiff,

v.

Apple Inc., a California Corporation,

Defendant.

Case No. 3:13-CV-00785-DMS-WVG

PLAINTIFF AND COUNTERDEFENDANT

E.DIGITAL

CORPORATION’S OBJECTION

TO “APPLE’S NOTICE OF

MOTION AND MOTION FOR

JUDGMENT ON THE PLEADINGS

PURSUANT TO RULE 12(c)”; AND,

REQUEST THAT THE COURT

STRIKE THE MOTION AND

TAKE IT OFF CALENDAR;

ATTACHED EXHIBITS A-B

Hearing Date: August 9, 2013

Time: 1:30 p.m.

Assigned to: Hon. Dana M. Sabraw

Courtroom: 13A

Apple Inc., a California Corporation,

Counterclaimant,

v.

e.Digital Corporation,

Counter-Defendant.

Case 3:13-cv-00785-DMS-WVG Document 37 Filed 07/09/13 Page 1 of 4

E.DIGITAL CORPORATION’S OBJECTION TO 3:13-CV-00785-DMS-WVG

APPLE INC.’S MJOP MOTION -2-

HANDAL & ASSOCIATES

1200 THIRD AVE

SUITE 1321

SAN DIEGO, CA 92101

TEL: 619.544.6400

FAX: 619.696.0323

TO THE PARTIES, THEIR COUNSEL, AND THE CLERK OF THE

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

CALIFORNIA:

Plaintiff e.Digital Corporation (“Plaintiff” or “e.Digital”) hereby objects to

Defendant Apple Inc. (“Defendant” or “Apple”)’s “Apple’s Notice Of Motion And

Motion For Judgment On The Pleadings Pursuant To Rule 12(c)” (“Motion”), filed

on or about July 8, 2013 (Docket #35), on the following grounds:

1) The Motion Is Untimely Pursuant to the Court’s May 30, 2013

Order (Docket #21). e.Digital was required per Paragraph 7 of the Court’s May

30, 2013 “Order After Case Management Conference” (“Order”) (Docket #21) to

serve its preliminary infringement contentions by June 26, 2013. (See, Page 3,

Paragraph 7 of the Order, a true and correct copy of relevant portions of which are

attached hereto as Exhibit “A”). e.Digital complied with this Order on June 26,

2013, emailing and mailing the preliminary infringement contentions. (See, Docket

#35-2, “Declaration Of Kevin J. O'shea In Support Of Apple's Motion For

Judgment On The Pleadings Pursuant To Rule 12(c)”, a true and correct copy of

relevant portions of which are attached hereto as Exhibit “B”).

The Court further set a deadline for Apple to file its Federal Rule of Civil

Procedure Rule 12 (c) motion for judgment on the pleadings. Paragraph 5 of the

Order specifically states (see, Exhibit “A”, Page 2, Paragraph 5):

“To the extent any Defendants desire to file motions based on failure

to state a claim for direct or indirect infringement, they must first file

answers. Defendants may raise this issue in a motion under

Federal Rule of Civil Procedure 12(c) within seven (7) calendar

days after the service of infringement contentions by Plaintiff, if

any Defendant believes the contentions fail to demonstrate a plausible

claim of infringement, direct or indirect.” (emphasis added)

Pursuant to the Court’s Order, any motion made pursuant to Federal Rule of

Case 3:13-cv-00785-DMS-WVG Document 37 Filed 07/09/13 Page 2 of 4

E.DIGITAL CORPORATION’S OBJECTION TO 3:13-CV-00785-DMS-WVG

APPLE INC.’S MJOP MOTION -3-

HANDAL & ASSOCIATES

1200 THIRD AVE

SUITE 1321

SAN DIEGO, CA 92101

TEL: 619.544.6400

FAX: 619.696.0323

Civil Procedure Rule 12(c) had to be filed no later than seven calendar days after

June 26, 2013 or no later than July 3, 2013. Apple filed its Motion seeking relief

pursuant to Federal Rule of Civil Procedure Rule 12(c) on July 8, 2013 or 5 days

after the Court ordered deadline. (Docket #35). As such, the Motion is untimely

and should be taken off calendar.

Given the aforementioned objections, e.Digital respectfully requests that

Defendant’s Motion be stricken and/or the hearing be taken off calendar given that

the Motion is untimely.

Dated: July 9, 2013

HANDAL & ASSOCIATES

By: /s/Pamela C. Chalk__________________

Anton N. Handal

Pamela C. Chalk

Gabriel G. Hedrick.

Attorneys for Plaintiff