Gibson Guitar Corporation v. Wal-Mart Stores, Inc. et al

Filing 49

MOTION to Dismiss Amended Complaint as to the Viacom Defendants by Harmonix Music Systems, Inc., MTV Networks, Electronic Arts, Inc.. (Harwell, Aubrey)

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Gibson Guitar Corporation v. Wal-Mart Stores, Inc. et al Doc. 49 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION GIBSON GUITAR CORPORATION, Plaintiff, v. AMAZON.COM, INC., GAMESTOP CORPORATION, TOYS-R-US INC., WAL-MART STORES, INC., TARGET CORPORATION, AND KMART CORPORATION, SEARS ROEBUCK & CO, HARMONIX MUSIC SYSTEMS, INC., MTV, and ELECTRONIC ARTS INC., Defendants. Civil Action No. 3:08-0279 United States District Judge Thomas A. Wiseman, Jr. United States Magistrate Judge Juliet Griffin Jury Demand THE VIACOM DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT AS TO THE VIACOM DEFENDANTS Dockets.Justia.com Defendants Harmonix Music Systems, Inc., Viacom International Inc. (erroneously named in the Complaint as "MTV Networks"), and Electronic Arts Inc. (collectively, "Viacom Defendants") respectfully move the Court dismiss the Amended Complaint in this action as to the Viacom Defendants. The basis for this motion is that Plaintiff Gibson Guitar Corporation has filed two lawsuits in this Court, each of them alleging infringement of the same patent by the Viacom Defendants. Despite the Viacom Defendants' repeated requests to Gibson to dismiss them from one of the suits, Gibson insists on pursuing identical claims against them in both actions at the same time. This Court has the inherent power to put an end to such impropriety, both to protect defendants from vexatious, cumulative and expensive litigation, and to promote judicial economy and the efficient disposition of cases. For these reasons, the Viacom Defendants respectfully request the Court dismiss the claims against them in this suit. Filed in support of this motion are Memorandum To Dismiss Amended Complaint As To The Viacom Defendants and the Declaration of Mark A. Samuels. 1 Dated: May 6, 2008 Respectfully submitted, By: /s/ Aubrey B. Harwell, III Aubrey B. Harwell, III WILLIAM T. RAMSEY, No. 9245 AUBREY B. HARWELL, III, No. 17394 NEAL & HARWELL, PLC Suite 2000, One Nashville Place 150 4th Avenue North Nashville, TN 37219-2498 Telephone: (615) 244-1713 Facsimile: (615) 726-0573 MARK A. SAMUELS (pro hac vice) ROBERT M. SCHWARTZ (pro hac vice) WILLIAM J. CHARRON (pro hac vice) O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 Attorneys for Defendants Harmonix Music Systems, Inc., Viacom International Inc. (erroneously named in the Complaint as "MTV Networks"), and Electronic Arts Inc. 2 CERTIFICATE OF SERVICE I hereby certify that on this 6th day of May 2008, I caused a true and correct copy of the foregoing: THE VIACOM DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT AS TO THE VIACOM DEFENDANTS to be served via hand delivery and via the Court's electronic filing system upon the following counsel of record: Douglas R. Pierce, Esq. KING & BALLOW 315 Union Street, Suite 1100 Nashville, TN 37201 Telephone: (615) 259-3456 Facsimile: (615) 726-5419 and to be served via the Court's electronic filing system upon the following counsel of record: Samuel D. Lipshie Thor Y. Urness Jonathan D. Rose BOULT CUMMINGS CONNERS BERRY, PLC 1600 Division Street, Suite 700 P.O. Box 340025 Nashville, TN 37203 Telephone: (615) 252-2332 Counsel for Defendants Wal-Mart Stores Inc., Sears Roebuck & Co., Target Corporation, Kmart Corporation, Amazon.com, Inc., GameStop Corporation, and Toys-R-Us, Inc. Matthew W. Siegal, Esq. Richard Eskew, Esq. Jason M. Sobel, Esq. STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038-4982 Telephone: (212) 806-5400 Counsel for Plaintiff Gibson Guitar Corporation /s/ Aubrey B. Harwell, III Aubrey B. Harwell, III 3