David v. Goliath - Handal opposition response to Apple motion ( 2 )
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Message: David v. Goliath - Handal opposition response to Apple motion ( 2 )
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Oct 24, 2013 06:17PM
A. DEFENDANTS HAVE FAILED TO SHOW THAT THEY WILL
NOT HAVE AN OPPORTUNITY FOR INPUT IN AN APPEAL
As an initial matter, Apple implies in its ex parte motion and related Motion
to Amend Judgment and Motion to Stay (“Motions”), that e.Digital sought to
“ensure[] that e.Digital could appeal the [Collateral Estoppel] order without
Apple’s input.” (Ex Parte Motion at pp. 1:22-2:1.) Such an accusation is
unsupported by the facts and is meritless. Nevertheless, the fact remains that no
harm, let alone irreparable harm, will befall the Defendants if their Motions are
not heard in the normal course.
As noted, within two business days of the Court’s ruling on the Collateral
Estoppel motion, e.Digital proposed stipulated judgments to all Defendants as to
the ’774 patent and ’108 patent. It did so solely to streamline the cases going
forward and to avoid any further expenditures in litigating the ’774 patent and ’108
patent until e.Digital could appeal the Collateral Estoppel Order.
As negotiations on the language for the stipulated judgments ensued, Apple
and most of the other Defendants insisted on language, to make it clear that they
were not final and/or not Fed. R. Civ. P. 54(b) judgments. During these
negotiations with all of the Defendants, e.Digital never hid the fact that it intended
to appeal the Collateral Estoppel Order in each case—a fact reflected not only in
its August 26, 2013 letter to all counsel (Exhibit A), but also in each initial draft of
NOT HAVE AN OPPORTUNITY FOR INPUT IN AN APPEAL
As an initial matter, Apple implies in its ex parte motion and related Motion
to Amend Judgment and Motion to Stay (“Motions”), that e.Digital sought to
“ensure[] that e.Digital could appeal the [Collateral Estoppel] order without
Apple’s input.” (Ex Parte Motion at pp. 1:22-2:1.) Such an accusation is
unsupported by the facts and is meritless. Nevertheless, the fact remains that no
harm, let alone irreparable harm, will befall the Defendants if their Motions are
not heard in the normal course.
As noted, within two business days of the Court’s ruling on the Collateral
Estoppel motion, e.Digital proposed stipulated judgments to all Defendants as to
the ’774 patent and ’108 patent. It did so solely to streamline the cases going
forward and to avoid any further expenditures in litigating the ’774 patent and ’108
patent until e.Digital could appeal the Collateral Estoppel Order.
As negotiations on the language for the stipulated judgments ensued, Apple
and most of the other Defendants insisted on language, to make it clear that they
were not final and/or not Fed. R. Civ. P. 54(b) judgments. During these
negotiations with all of the Defendants, e.Digital never hid the fact that it intended
to appeal the Collateral Estoppel Order in each case—a fact reflected not only in
its August 26, 2013 letter to all counsel (Exhibit A), but also in each initial draft of
its stipulated judgments. Given that the above-titled cases are not consolidated, it
should have been more than apparent to Defendants that, if circumstances were
ripe, e.Digital could and would appeal the Collateral Estoppel Order before final
judgment in one or more of the individual cases.
More importantly, there has been no showing that expediting the hearing
date for the Motions will have any impact on Defendants’ rights regarding the
Huawei appeal. The Federal Circuit will not likely set a date for oral argument
until after the submission of all appellate briefs in the Huawei case. Therefore,
shortening the briefing schedule for the instant hearing by a month will have no
impact on whether the Federal Circuit will consolidate any other appeals that may
be filed should Defendants’ motions to amend their respective motions be granted.
Moreover, there is no guarantee that the Federal Circuit will consolidate any
subsequent appeal with the Huawei appeal, regardless of when the respective
should have been more than apparent to Defendants that, if circumstances were
ripe, e.Digital could and would appeal the Collateral Estoppel Order before final
judgment in one or more of the individual cases.
More importantly, there has been no showing that expediting the hearing
date for the Motions will have any impact on Defendants’ rights regarding the
Huawei appeal. The Federal Circuit will not likely set a date for oral argument
until after the submission of all appellate briefs in the Huawei case. Therefore,
shortening the briefing schedule for the instant hearing by a month will have no
impact on whether the Federal Circuit will consolidate any other appeals that may
be filed should Defendants’ motions to amend their respective motions be granted.
Moreover, there is no guarantee that the Federal Circuit will consolidate any
subsequent appeal with the Huawei appeal, regardless of when the respective
appeals are filed, as such joinders are discretionary with the Federal Circuit. See,
Fed. R. App. P. 3(b). Defendants’ argument that shortening the time frame for the
Motions will result in a guaranteed “seat at the table” in the Huawei appeal is,
therefore, pure speculation.
In the meantime, nothing prevents Defendants from providing input to
Huawei with respect to the pending appeal. Defendants and Huawei are part of
joint defense group in these pending cases and have almost routinely filed a single
pleading by one defendant as to certain matters (like the Collateral Estoppel
Motion) with the other Defendants joining thereon. Indeed, the present Motions
were first filed in the Apple case, with the other Defendants simply joining in
thereafter. This does not mean that the other Defendants did not or could not have
any input into Apple’s Motions.
Defendants offer no evidence that Huawei will not be receptive to the
remaining Defendants’ input on appeal or that Huawei’s counsel, Foley & Lardner,
would not be up to the task of competently defending Huawei on appeal. Whether
Fed. R. App. P. 3(b). Defendants’ argument that shortening the time frame for the
Motions will result in a guaranteed “seat at the table” in the Huawei appeal is,
therefore, pure speculation.
In the meantime, nothing prevents Defendants from providing input to
Huawei with respect to the pending appeal. Defendants and Huawei are part of
joint defense group in these pending cases and have almost routinely filed a single
pleading by one defendant as to certain matters (like the Collateral Estoppel
Motion) with the other Defendants joining thereon. Indeed, the present Motions
were first filed in the Apple case, with the other Defendants simply joining in
thereafter. This does not mean that the other Defendants did not or could not have
any input into Apple’s Motions.
Defendants offer no evidence that Huawei will not be receptive to the
remaining Defendants’ input on appeal or that Huawei’s counsel, Foley & Lardner,
would not be up to the task of competently defending Huawei on appeal. Whether
Defendants’ motions to amend their respective judgments are granted sooner, later,
or not at all, the Defendants have failed to show that they will not have their
interests well represented or that they will be deprived of an opportunity to submit
briefs to the Federal Circuit and participate in oral argument if and when e.Digital
appeals the Collateral Estoppel Order in due course in each respective case.
Further, the Defendants do not explain why, if they feel the need to
participate in the Huawei appeal that they do not simply ask the Federal Circuit for
permission to file amicus curiae briefs pursuant to Fed. R. App. P. 29.
These facts demonstrate that Defendants’ pending motions are little more
than a pretext for obtaining a stay of the entire case rather than any fear that
Defendants will not have a say in the pending Huawei appeal. The Motions are
without merit for other reasons that e.Digital will address in its oppositions thereto
and, certainly, there is no need for them to be heard on an expedited basis.
B. THE DEFENDANTS’ PROPOSED SCHEDULE WOULD BE
UNFAIRLY PREJUDICIAL TO E.DIGITAL
In addition, Defendants’ proposed briefing schedule would be unduly
prejudicial to e.Digital. The joint motion for entry of stipulated partial judgment
was entered in the Huawei case on October 7, 2013. Defendants were, therefore,
aware of e.Digital’s intent to file an appeal by at least that date. Despite their
alleged fear that their cases would not be consolidated with Huawei’s appeal,
Defendants waited until two weeks after the Huawei motion for entry of judgment
to file their present motions.
Defendants now ask the Court to give e.Digital less than one week to
prepare an opposition to each motion even though the facts with respect to each
case differ given that the discussions with each Defendant were different with
respect to timing and the language that ultimately appeared in the judgments and/or
joint motions submitted to the Court in each case.
In fact, when Defendants inquired whether e.Digital would oppose the
or not at all, the Defendants have failed to show that they will not have their
interests well represented or that they will be deprived of an opportunity to submit
briefs to the Federal Circuit and participate in oral argument if and when e.Digital
appeals the Collateral Estoppel Order in due course in each respective case.
Further, the Defendants do not explain why, if they feel the need to
participate in the Huawei appeal that they do not simply ask the Federal Circuit for
permission to file amicus curiae briefs pursuant to Fed. R. App. P. 29.
These facts demonstrate that Defendants’ pending motions are little more
than a pretext for obtaining a stay of the entire case rather than any fear that
Defendants will not have a say in the pending Huawei appeal. The Motions are
without merit for other reasons that e.Digital will address in its oppositions thereto
and, certainly, there is no need for them to be heard on an expedited basis.
B. THE DEFENDANTS’ PROPOSED SCHEDULE WOULD BE
UNFAIRLY PREJUDICIAL TO E.DIGITAL
In addition, Defendants’ proposed briefing schedule would be unduly
prejudicial to e.Digital. The joint motion for entry of stipulated partial judgment
was entered in the Huawei case on October 7, 2013. Defendants were, therefore,
aware of e.Digital’s intent to file an appeal by at least that date. Despite their
alleged fear that their cases would not be consolidated with Huawei’s appeal,
Defendants waited until two weeks after the Huawei motion for entry of judgment
to file their present motions.
Defendants now ask the Court to give e.Digital less than one week to
prepare an opposition to each motion even though the facts with respect to each
case differ given that the discussions with each Defendant were different with
respect to timing and the language that ultimately appeared in the judgments and/or
joint motions submitted to the Court in each case.
In fact, when Defendants inquired whether e.Digital would oppose the
pending motions, e.Digital indicated it would oppose given, among other things,
the Defendants and/or Apple had not disclosed what briefing schedule it was going
to propose to the Court. (See, Exhibit G). Defendants did not respond and, instead,
filed the present motion five days later.
This is the type of gamesmanship the Federal and Local Rules regarding
notice were intended to prevent. The rules are intended to “give the adversary an
opportunity to prepare a thorough opposition ... according to a predesigned,
consistent timetable.” Mission Power Engineering Co. v. Continental Casualty
Co., supra, 883 F.Supp. at 491. The Court in Mission Power recognized the
gamesmanship behind ex parte motions and other requests for shortened briefing
schedules. Id. at 490. The goal of the moving party is often to cause the other side
to have to “drop all other work to respond on short notice.” Id. The “parties’
opportunities to prepare are grossly unbalanced” and such games detract from “a
fundamental purpose of the adversary system, namely, to give the court the best
possible presentation of the merits and demerits of the case on each side.” Id.
Additionally, Defendants’ two Motions present complex legal questions that
must be thoroughly researched and analyzed in order for e.Digital to properly
respond. e.Digital cannot fully and adequately prepare its two oppositions in such
a short time period, especially when e.Digital and its counsel are required to attend
two In re e.Digital ENE conferences this week, among other things. This is
precisely the type of burden the Federal and Local Rules regarding notice intended
to avoid.
the Defendants and/or Apple had not disclosed what briefing schedule it was going
to propose to the Court. (See, Exhibit G). Defendants did not respond and, instead,
filed the present motion five days later.
This is the type of gamesmanship the Federal and Local Rules regarding
notice were intended to prevent. The rules are intended to “give the adversary an
opportunity to prepare a thorough opposition ... according to a predesigned,
consistent timetable.” Mission Power Engineering Co. v. Continental Casualty
Co., supra, 883 F.Supp. at 491. The Court in Mission Power recognized the
gamesmanship behind ex parte motions and other requests for shortened briefing
schedules. Id. at 490. The goal of the moving party is often to cause the other side
to have to “drop all other work to respond on short notice.” Id. The “parties’
opportunities to prepare are grossly unbalanced” and such games detract from “a
fundamental purpose of the adversary system, namely, to give the court the best
possible presentation of the merits and demerits of the case on each side.” Id.
Additionally, Defendants’ two Motions present complex legal questions that
must be thoroughly researched and analyzed in order for e.Digital to properly
respond. e.Digital cannot fully and adequately prepare its two oppositions in such
a short time period, especially when e.Digital and its counsel are required to attend
two In re e.Digital ENE conferences this week, among other things. This is
precisely the type of burden the Federal and Local Rules regarding notice intended
to avoid.
C. DEFENDANTS ARE NOT WITHOUT FAULT WITH
RESPECT TO THE SITUATION AT HAND
While Apple and the other Defendants argue that an order shortening time
must be granted with respect to their motions they fail to establish that they are
“without fault in creating the crisis that requires ex parte relief, or that the crisis
occurred as a result of excusable neglect.” Mission Power Engineering Co., 883
RESPECT TO THE SITUATION AT HAND
While Apple and the other Defendants argue that an order shortening time
must be granted with respect to their motions they fail to establish that they are
“without fault in creating the crisis that requires ex parte relief, or that the crisis
occurred as a result of excusable neglect.” Mission Power Engineering Co., 883
F.Supp. at 492.
It is impossible for Apple or any of the other Defendants to meet such a
standard. It is undisputable that the stipulated judgments under attack were
negotiated and agreed to by the Defendants who now seek to cause them to be
amended. There is little doubt that the Defendants are well represented and that
they and their counsel were doing everything they could to prevent e.Digital from
appealing the Collateral Estoppel Order. However, they knew since the cases were
not consolidated, e.Digital had the right to appeal any case that came to finality
regardless of when it came to finality. The position Defendants are now currently
complaining about was, therefore, entirely foreseeable. e.Digital is well within its
rights to appeal the judgment in the Huawei case and it has done so. Defendants
should not be permitted to unilaterally amend a mutually agreed upon judgment
based on entirely foreseeable events. The instant ex parte motion should be denied.
IV. CONCLUSION
Based on the foregoing, Defendants motion for an order shortening time for
briefing on Defendants’ pending motions should be denied. Defendants have
failed to demonstrate good cause for an abbreviated briefing schedule.
Respectfully, e.Digital requests oral argument as to this ex parte motion.
HANDAL & ASSOCIATES
Dated: October 23, 2013 By: /s/ Pamela C. Chalk
Anton N. Handal
Pamela C. Chalk
Gabriel G. Hedrick
Attorneys for Plaintiff/Counter-Defendant
It is impossible for Apple or any of the other Defendants to meet such a
standard. It is undisputable that the stipulated judgments under attack were
negotiated and agreed to by the Defendants who now seek to cause them to be
amended. There is little doubt that the Defendants are well represented and that
they and their counsel were doing everything they could to prevent e.Digital from
appealing the Collateral Estoppel Order. However, they knew since the cases were
not consolidated, e.Digital had the right to appeal any case that came to finality
regardless of when it came to finality. The position Defendants are now currently
complaining about was, therefore, entirely foreseeable. e.Digital is well within its
rights to appeal the judgment in the Huawei case and it has done so. Defendants
should not be permitted to unilaterally amend a mutually agreed upon judgment
based on entirely foreseeable events. The instant ex parte motion should be denied.
IV. CONCLUSION
Based on the foregoing, Defendants motion for an order shortening time for
briefing on Defendants’ pending motions should be denied. Defendants have
failed to demonstrate good cause for an abbreviated briefing schedule.
Respectfully, e.Digital requests oral argument as to this ex parte motion.
HANDAL & ASSOCIATES
Dated: October 23, 2013 By: /s/ Pamela C. Chalk
Anton N. Handal
Pamela C. Chalk
Gabriel G. Hedrick
Attorneys for Plaintiff/Counter-Defendant
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