SkyRiver Technology Solutions, LLC et al v. OCLC Online Computer Library Center, Inc.

Filing 53

First MOTION for Leave to File a Surreply in Opposition to OCLC Online Computer Library Center, Inc.'s 45 Motion to Dismiss by Plaintiffs Innovative Interfaces, Inc. & SkyRiver Technology Solutions, LLC. (Long, Thomas) Modified on 3/8/2011 to add doc link (kk2)

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SkyRiver Technology Solutions, LLC et al v. OCLC Online Computer Library Center, Inc. Doc. 53 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION SKYRIVER TECHNOLOGY SOLUTIONS, LLC, et al., Plaintiffs, vs. OCLC ONLINE COMPUTER LIBRARY CENTER, INC., Defendant. : Case No. 2:10-CV-1017 : : : Judge Watson : Magistrate Judge Kemp : : : : : : PLAINTIFFS SKYRIVER TECHNOLOGY SOLUTIONS, LLC AND INNOVATIVE INTERFACES, INC.'S MOTION FOR LEAVE TO FILE A SURREPLY IN OPPOSTION TO OCLC ONLINE COMPUTER LIBRARY CENTER, INC.'S MOTION TO DISMISS Plaintiffs Skyriver Technology Solutions, LLC and Innovative Interfaces, Inc. move the Court for leave to file a short Surreply Brief in opposition to Defendant OCLC Online Computer Library Center, Inc.'s ("OCLC") Motion to Dismiss Plaintiffs' Complaint. Plaintiffs seek leave to file the Surreply for two simple reasons: (1) to make clear they believe the Court should hold oral argument on the Motion, and (2) that although Plaintiffs believe Defendant's Motion to Dismiss is without merit, if the Court were for any reason inclined to grant the Motion, Plaintiffs wish to preserve their right to request leave to file an amended complaint under Fed. R. Civ. P. 15(a), a request Plaintiffs intend to assert at oral argument if necessary. -1- Dockets.Justia.com A brief memorandum in support of this motion is attached hereto along with the proposed Surreply. Respectfully submitted, /s/ Thomas L. Long Thomas L. Long (0023127), Trial Attorney tlong@bakerlaw.com Robert M. Kincaid, Jr. (0017929), Of Counsel rkincaid@bakerlaw.com BAKER HOSTETLER LLP Capitol Square, Suite 2100 65 East State Street Columbus, OH 43215 Telephone: (614) 462-1541 Facsimile: (614) 462-2616 Mary Jo Shartsis (CA Bar 55194), Co-Counsel PHV mshartsis@sflaw.com Arthur J. Shartsis (CA Bar 51594), Co-Counsel PHV ashartsis@sflaw.com Robert E. Schaberg (CA Bar 81430), Co-Counsel PHV rschaberg@sflaw.com Richard F. Munzinger (CA Bar 217902), Co-Counsel PHV rmunzinger@sflaw.com SHARTSIS FRIESE LLP One Maritime Plaza, 18th Floor San Francisco, CA 94111 Telephone: (415) 421-6500 Facsimile: (415) 421-2922 Attorneys for Plaintiffs SkyRiver Technology Solutions, LLC and Innovative Interfaces, Inc. -2- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION SKYRIVER TECHNOLOGY SOLUTIONS, LLC, et al., Plaintiffs, vs. OCLC ONLINE COMPUTER LIBRARY CENTER, INC., Defendant. : Case No. 2:10-CV-1017 : : : Judge Watson : Magistrate Judge Kemp : : : : : : MEMORANDUM IN SUPPORT OF PLAINTIFFS SKYRIVER TECHNOLOGY SOLUTIONS, LLC AND INNOVATIVE INTERFACES, INC.'S MOTION FOR LEAVE TO FILE A SURREPLY IN OPPOSITION TO DEFENDANT OCLC ONLINE COMPUTER LIBRARY CENTER, INC.'S MOTION TO DISMISS Plaintiffs are fully aware of this Court's normal procedure set forth in S. D. Ohio Civ. R. 7.2 permitting the filing of a memorandum in support, a memorandum contra, and a reply memorandum in determining motions. It is also clear under the rules of this District that a party must seek oral argument which is granted at the Court's discretion under S. D. Ohio Civ. R. 7.1(b) (2). Pursuant to S. D. Ohio Civ. R. 7.2 (a) (2), Plaintiffs seek leave to file a Surreply in opposition to Defendant's Motion to Dismiss. Plaintiffs do so because for the first time in their Trial Attorney's nearly thirty-five years of practice before this Court, a party has affirmatively opposed a party's request for oral argument. (See Defendant's Reply Memorandum in Support of its Motion to Dismiss, p. 20.) -1- In view of Defendant's unprecedented action, Plaintiffs seek leave to file a Surreply to reiterate their request for oral argument, which should assist the Court in determining the Motion to Dismiss, and to make clear they preserve their right to request leave to file an Amended Complaint under Fed. R. of Civ. P. 15 (a) (2). Normally, if necessary, and Plaintiffs wish to make clear they do not believe it should be necessary, Plaintiffs would make such a request during oral argument. Effectively, Defendant has attempted to foreclose this opportunity by both opposing oral argument and at the same time seeking dismissal of Plaintiffs' Complaint with prejudice. Plaintiffs' motion to file the Surreply will not burden the Court and merely preserves Plaintiffs' rights, if not already preserved, under Fed. R. Civ. P. 15 to seek leave to file an Amended Complaint, if necessary, and to make clear oral argument will assist the Court in determining the issues raised by Defendant's Motion to Dismiss. A copy of the proposed Surreply is attached hereto. Respectfully submitted, /s/ Thomas L. Long Thomas L. Long (0023127), Trial Attorney tlong@bakerlaw.com Robert M. Kincaid, Jr. (0017929), Of Counsel rkincaid@bakerlaw.com BAKER HOSTETLER LLP Capitol Square, Suite 2100 65 East State Street Columbus, OH 43215 Telephone: (614) 462-1541 Facsimile: (614) 462-2616 (signatures continued next page) -2- Mary Jo Shartsis (CA Bar 55194), Co-Counsel PHV mshartsis@sflaw.com Arthur J. Shartsis (CA Bar 51594), Co-Counsel PHV ashartsis@sflaw.com Robert E. Schaberg (CA Bar 81430), Co-Counsel PHV rschaberg@sflaw.com Richard F. Munzinger (CA Bar 217902), Co-Counsel PHV rmunzinger@sflaw.com SHARTSIS FRIESE LLP One Maritime Plaza, 18th Floor San Francisco, CA 94111 Telephone: (415) 421-6500 Facsimile: (415) 421-2922 Attorneys for Plaintiffs SkyRiver Technology Solutions, LLC and Innovative Interfaces, Inc. -3- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION SKYRIVER TECHNOLOGY SOLUTIONS, LLC, et al., Plaintiffs, vs. OCLC ONLINE COMPUTER LIBRARY CENTER, INC., Defendant. : Case No. 2:10-CV-1017 : : : Judge Watson : Magistrate Judge Kemp : : : : : : PLAINTIFFS SKYRIVER TECHNOLOGY SOLUTIONS, LLC AND INNOVATIVE INTERFACES, INC.'S SURREPLY IN OPPOSITION TO DEFENDANT OCLC ONLINE COMPUTER LIBRARY CENTER, INC.'S MOTION TO DISMISS Defendant OCLC Online Computer Library Center, Inc. ("OCLC") filed a motion to dismiss Plaintiff's Complaint. In their Memorandum in Opposition to the Motion to Dismiss, Plaintiffs requested oral argument as permitted under S. D. Ohio. Civ. R. 7.1 (b) (2). In its Reply Memorandum in Support of its Motion to Dismiss, Defendant OCLC not only opposes Plaintiffs' request for oral argument, but further asks the Court to dismiss the Complaint with prejudice. In nearly thirty five years of practice before this Court, Plaintiffs' Trial Attorney, has never been involved in a case, let alone heard of a case, in which an opposing party affirmatively opposed a party's request for oral argument. In view of this unprecedented action, Plaintiffs wish to reiterate their belief that in a complicated antitrust case, such as the present case before the -1- Court, oral argument would be extremely helpful to the Court in determining the motion to dismiss. In addition, Defendant has requested this Court to grant its motion and dismiss Plaintiffs' Complaint with prejudice. Defendant presents no basis for doing so in its Reply Memorandum. Fed. R. Civ. P. 15 (a) (2) requires the court to freely permit the filing of an Amended Complaint if justice requires. Normally, Plaintiffs would make a request to file an Amended Complaint, if necessary, at oral argument. However, in view of Defendant's Opposition to Oral Argument, if the Court chooses not to hold oral argument, Plaintiffs wish to make clear in the event the Court is inclined to grant Defendant's Motion to Dismiss the Complaint that they request leave to file an Amended Complaint. Respectfully submitted, /s/ Thomas L. Long Thomas L. Long (0023127), Trial Attorney tlong@bakerlaw.com Robert M. Kincaid, Jr. (0017929), Of Counsel rkincaid@bakerlaw.com BAKER HOSTETLER LLP Capitol Square, Suite 2100 65 East State Street Columbus, OH 43215 Telephone: (614) 462-1541 Facsimile: (614) 462-2616 (signatures continued next page) -2- Mary Jo Shartsis (CA Bar 55194), Co-Counsel PHV mshartsis@sflaw.com Arthur J. Shartsis (CA Bar 51594), Co-Counsel PHV ashartsis@sflaw.com Robert E. Schaberg (CA Bar 81430), Co-Counsel PHV rschaberg@sflaw.com Richard F. Munzinger (CA Bar 217902), Co-Counsel PHV rmunzinger@sflaw.com SHARTSIS FRIESE LLP One Maritime Plaza, 18th Floor San Francisco, CA 94111 Telephone: (415) 421-6500 Facsimile: (415) 421-2922 Attorneys for Plaintiffs SkyRiver Technology Solutions, LLC and Innovative Interfaces, Inc. -3- CERTIFICATE OF SERVICE I hereby certify that on March 7, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Martha C. Brewer mcbrewer@vorys.com Douglas R. Matthews dmatthews@vssp.com James A. Wilson, Jr. jawilson@vorys.com VORYS, SATER, SEYMOUR & PEASE LLP 52 East Gay Street Columbus, OH 43215 Telephone: (614) 464-6400 /s/ Thomas L. Long Trial Attorney for Plaintiffs SkyRiver Technology Solutions, LLC and Innovative Interfaces, Inc.