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 (
pro hac vice
)
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 (
pro hac vice
)
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
Huawei appeal. (See
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. (
See
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
oral argument in Huawei
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
Huawei
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
already
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. (
See Rec. Doc. No. 56 at ¶¶ 1-3.2
) 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 (
pro hac vice
)
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 (
pro hac vice
)
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
