Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 751

RESPONSE in Opposition re 722 Joint SEALED MOTION DEFENDANTS MOTION FOR RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE 120 PATENT (DKT. NO. 659)Joint SEALED MOTION DEFENDANTS MOTION FOR RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE 120 PATENT (DKT. NO. 659)Joint SEALED MOTION DEFENDANTS MOTION FOR RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE 120 PATENT (DKT. NO. 659) filed by Bedrock Computer Technologies, LLC. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Cawley, Douglas)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, v. SOFTLAYER TECHNOLOGIES, INC., et al. Defendants. § § § § § § § § § § § CASE NO. 6:09-cv-269-LED Jury Trial Demanded BEDROCK’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE ‘120 PATENT (DKT. NO. 659) Dallas 322015v1 Plaintiff Bedrock Computer Technologies LLC (“Bedrock”) hereby submits its response in opposition to Defendants’ Motion for Reconsideration and Objections to Report and Recommendation Denying Motion for Summary Judgment of Non-Infringement (Dkt. No. 722). Bedrock respectfully requests that the Court adopt Magistrate Judge Love’s Report and Recommendation (“Recommendation”) denying summary judgment of non-infringement, overrule Defendants’ objections, and deny Defendants’ motion for reconsideration. I. INTRODUCTION After considering the parties’ briefings, conducting a hearing, and listening to the parties’ arguments regarding non-infringement, Magistrate Judge Love correctly concluded that Defendants’ motion for summary judgment of non-infringement should be denied. (See Dkt. No. 659.) Defendants’ instant motion, which seeks to overturn Judge Love’s Recommendation, raises arguments which were previously carefully considered and then rejected by Judge Love. For these reasons, the Court should deny Defendants’ motion and adopt Judge Love’s Recommendation. II. ARGUMENT A. Judge Love Was Not Required to Submit Findings of Fact or Conclusions of Law. Defendants first assert that, because Judge Love did not provide findings of fact or conclusions of law to support his Recommendation that summary judgment of non-infringement of U.S. Patent No. 5,893,120 (“’120 patent”) be denied, the Court should reject the Recommendation. (Dkt. No. 422 at 1.) However, Defendants cite no case law for this proposition, and Defendants’ strained reading of 28 U.S.C. § 636(b)(1) is at odds with the express language of Federal Rule of Civil Procedure 72(b)(1), which states that for dispositive motions, a magistrate “must enter a recommended disposition, including, if appropriate, 1 Dallas 322015v1 proposed findings of fact.” FED. R. CIV. P. 72(b)(1) (emphasis added); see also Habets v. Waste Mgmt., 363 F.3d 378, 382 (5th Cir. 2004) (“[T]he magistrate here made no involved findings of fact because this was a recommendation on a motion for summary judgment.”). Further, the district court judge—not the magistrate—is vested with ultimate decisionmaking authority as to whether the evidence of record supports a magistrate’s recommendation on a dispositive matter. See 28 U.S.C. § 686; see also Mass. Institute of Tech. v. Abacus Software, Inc., et al., Case No. 5:01-CV-344, 2004 U.S. Dist. LEXIS 30050, *16 (E.D. Tex. Sept. 29, 2004) (citing Freeman v. County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998)). Because the district court judge always retains authority to review, alter, adopt, or reject a magistrate’s recommendation, a recommendation’s omission of specific findings of fact and conclusions of law cannot, alone, render the recommendation improper. See id.; see also ColorQuick, LLC v. VistaPrint Ltd., et al., Case No. 6:09-CV-323, 2010 U.S. Dist. LEXIS 136226, *14 (E.D. Tex. July 22, 2010) (Davis, J.) (denying objections to the magistrate’s determination and stating that, “although the factors were acknowledged in broad terms, there is nothing to support Defendants’ conclusion that the Magistrate Judge did not carefully consider and weigh each factor. Moreover, the [district] Court’s more detailed discussion of the relevant factors confirms the Magistrate Judge's conclusion”). Accordingly, Magistrate Judge Love simply was not required to set forth findings of fact and conclusions of law in his recommendation, and there is, thus, no basis for Defendants’ contention that the Recommendation is improper. B. Defendants’ Substantive Arguments Have Already Been Addressed. With respect to Defendants’ substantive objections to Judge Love’s Report and Recommendation, Defendants rely only upon arguments which were already detailed in the summary judgment briefing, addressed in argument at the March 17, 2011 hearing, and fully 2 Dallas 322015v1 responded to by Bedrock. (See Dkt. Nos. 463 [Defendants’ Motion for Summary Judgment of Non-Infringement], 533 [Bedrock’s Response in Opposition], 574 [Defendants’ Reply], and 601 [Bedrock’s Sur-Reply]; see also Dkt. Nos. 669 [Yahoo!’s Motion to Strike Bedrock’s Spinlock Theory] and 687 [Bedrock’s Response].) As such, Bedrock will not duplicate that discussion here.1 Rather, Bedrock adopts by reference its arguments in Docket Numbers 533, 601, and 687 and requests that the Court adopt the Report and Recommendation of Judge Love and deny Defendants’ Motion for Summary Judgment of Non-Infringement, (Dkt. No. 659), and Defendants’ motion for reconsideration. III. CONCLUSION. For the aforementioned reasons, Bedrock respectfully requests that the Court deny Defendants’ Motion for Reconsideration. 1 Bedrock further notes that jury’s verdict in the first trial against Google, which found that the ’120 patent was infringed, and this Court’s denial of Defendants’ Motion for Judgment as a Matter of Law of Non-Infringement. (See Trial Tr. (April 14, 2011, afternoon), attached hereto as Exhibit 1, at 110:1–14; Dkt. No. 746.) 3 Dallas 322015v1 DATED: April 21, 2011 Respectfully submitted, McKOOL SMITH, P.C. /s/ Douglas A. Cawley Sam F. Baxter Texas Bar No. 01938000 McKOOL SMITH, P.C. sbaxter@mckoolsmith.com 104 E. Houston Street, Suite 300 P.O. Box 0 Marshall, Texas 75670 Telephone: (903) 923-9000 Facsimile: (903) 923-9099 Douglas A. Cawley, Lead Attorney Texas Bar No. 04035500 dcawley@mckoolsmith.com Theodore Stevenson, III Texas Bar No. 19196650 tstevenson@mckoolsmith.com Scott W. Hejny Texas Bar No. 24038952 shejny@mckoolsmith.com Jason D. Cassady Texas Bar No. 24045625 jcassady@mckoolsmith.com J. Austin Curry Texas Bar No. 24059636 acurry@mckoolsmith.com Phillip M. Aurentz Texas Bar No. 24059404 paurentz@mckoolsmith.com Stacie Greskowiak Texas State Bar No. 24074311 sgreskowiak@mckoolsmith.com Ryan A. Hargrave Texas State Bar No. 24071516 rhargrave@mckoolsmith.com McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 4 Dallas 322015v1 Robert M. Parker Texas Bar No. 15498000 Robert Christopher Bunt Texas Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: 903-531-3535 Facsimile: 903-533-9687 E-mail: rmparker@pbatyler.com E-mail: rcbunt@pbatyler.com ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC 5 Dallas 322015v1 CERTIFICATE OF SERVICE I hereby certify that all counsel of record who are deemed to have consented to electronic service are being served with a copy of the forgoing document via the Court’s CM/ECF system pursuant to the Court’s Local Rules this 21st day of April, 2011. /s/ Ryan A. Hargrave Ryan A. Hargrave 6 Dallas 322015v1