Luxpro Corporation v. Apple, Inc.

Filing 71

REPLY to Response to Motion re 65 MOTION for Entry of Scheduling Order Under Federal Rules of Civil Procedure 16 filed by Luxpro Corporation. (Cockrell, Phillip)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS TEXARKANA DIVISION LUXPRO CORPORATION, a Taiwanese ) Corporation, ) ) Plaintiff, ) ) vs. ) ) APPLE, INC. f/k/a Apple Computer, ) Inc., ) ) Defendant. )

Civil Action No. 4:08cv04092-HFB

REPLY OF LUXPRO CORPORATION IN SUPPORT OF MOTION FOR ENTRY OF SCHEDULING ORDER UNDER FRCP 16

Apple's opposition to the entry of a standard scheduling order in this case rests on the erroneous argument that this Court has not sustained Luxpro's Complaint. This is simply not true. On September 28, 2009, the Court sustained the majority of Luxpro's Complaint, and directed Luxpro to file an amended complaint to clarify some of the claims asserted. On the same day, the Court also denied Apple's motion to transfer venue under the doctrine of forum non-conveniens. Apple's other argument that it is premature to enter a scheduling order because Luxpro has no right or standing to assert these claims is likewise erroneous, and thus, the cases cited by Apple are inapplicable. Specifically, this is not a case where either the Court's subject matter or personal jurisdiction over the parties has been challenged. See, Canadian Trophy Quest, Ltd. V. Cabela's Inc., No. 07-CV-4099, 2008 U.S. Dist. LEXIS 68099, *15 (W.D.Ark). Sept. 8, 2008). Furthermore, No party to these proceedings has made a claim for dismissal under the doctrine sovereign immunity. See, Cedric Glaze,

No. 132460 v Bobby May, et al, No. 2:09-CV-00113 HLJ, 2009 U. S. Dist. LEXIS 97885, *2-3 (E.D. Ark. Oct. 6, 2009). Indeed, this Court has already denied Apple's claim of immunity under the Noerr-Pennington doctrine at this stage of the litigation. Finally, this is not a case involving a pending motion for summary judgment, where evidence has already been submitted to the Court for adjudication of a dispositive motion. See, Virgil Roach v Sherriff Dale Madden, 728 F. Supp. 537, 538 n.1 (E. D. Ark. 1989). 1 As such, Apple has no legitimate basis under the Federal Rules to refuse to cooperate with discovery or to object to the entry of this Court's standard scheduling order. 2 Luxpro is not asking for extraordinary relief or preferential treatment, Luxpro is simply requesting that this case be treated like any other case filed in Federal Court, one that is governed by FRCP 16(b)(2). Under this rule, a scheduling order is to be issued within the earlier of one hundred twenty (120) days after a defendant has been served with the Complaint or ninety (90) days after a defendant has appeared. Under either of these scenarios, this matter is ripe for an entry of a scheduling order.

What is clear is Apple's desire to not have this case on the Court's docket, and has resorted to extraordinary measures to accomplish its goal--including filing a Petition for Extraordinary Relief with the Eight Circuit alleging (premised on more erroneous arguments) that the Court abused its discretion in denying Apple's motion to transfer the case to the Northern District of California under 28 USCA § 1404. This effort to seek an interlocutory appeal of the trial court's venue ruling is very unusual given Apple's failure to allege that venue is improper in this Court under 12(b)(3). Apple has gone so far as to actually refuse to participate in a Rule 26(f) discovery conference or to agree on any scheduling deadlines
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Again, Luxpro is asking for no special treatment, or extraordinary relief. It is simply asking that a standard scheduling order be entered. 3 In spite of Apple's refusal to accept any responsibility for the delays that have been imposed upon these proceedings, the fact remains that this case has been pending for seventeen (17) months without a scheduling order. Regardless of which party bears the most blame for this inordinate

delay, the facts reflected on the court's docket support the entry of the standard scheduling order requested by Luxpro: a. b. Luxpro filed its Original Complaint in this cause on October 10, 2008; Apple responded by filing its first Motion to Dismiss under Rule 12(b)(6), FRCP, on December 19, 2008; c. Apple did not allege venue as improper in the Western District of Arkansas under FRCP 12(b)(3); d. After the Court ruled on Apple's first motions, and pursuant to the Court's directive, Luxpro submitted a Second Amended Complaint with a Motion for Leave on December 7, 2009; e. f. Apple did not file a timely response to the Motion for Leave; Apple filed a Petition with Eighth Circuit on November 20, 2009 challenging the Court's venue ruling; g. h. The Court granted Luxpro's Motion for Leave on December 22, 2009; Luxpro's Second Amended Complaint was filed on December 29, 2009;

Local Rule 16.1 provides that the Court should enter a scheduling order setting forth: (1) a date by which the parties must hold their Rule 26(f) discovery conference; (2) the date by which the parties must submit their Rule 26(f) Report; (3) a date for a Rule 16(b) scheduling conference; and (4) a proposed trial date.

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i.

After obtaining an extension of time from the Court, Apple filed its response on February 26, 2010, in the form of a second Motion to Dismiss under Rule 12(b)(6);

j.

In its second Motion to Dismiss, Apple asked the Court to revisit the same issues it raised in the first Motion to Dismiss, which this Honorable Court has already overruled; and

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As a result, almost seventeen (17) months have passed since this case was filed and served on Apple, without any discovery by either party.

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In its Motion for Entry of the Scheduling Order in these proceedings,

Luxpro explained to the Court that Apple's multiple procedural motions were clearly "calculated to further delay Luxpro's ability to pursue discovery and other actions necessary to prepare this case for trial in an orderly manner". Apple has reinforced

Luxpro's position by opposing the entry of a scheduling order that would customarily be entered. Therefore, Luxpro respectfully requests that the Court enter a scheduling order in the format typically used by the Courts in this District (a copy of is attached to Plaintiff's Motion for Entry of Scheduling Order). Plaintiff also requests such other and further relief to which it may show itself justly entitled. Respectfully Submitted, /s/ Phillip N. Cockrell_________ Richard A. Adams Ark. Bar No. 97036 Phillip N. Cockrell Ark. Bar No. 79154 Corey D. McGaha Ark. Bar No. 2003047

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PATTON ROBERTS PLLC 2900 St. Michael Drive, Suite 400 Texarkana, Texas 75505-6128 Phone: [phone] Fax: [phone] Jeremy Y. Hutchinson Ark. Bar No. 2006145 PATTON ROBERTS PLLC 111 Center St., Suite 1315 Little Rock, AR 72201 Telephone: [phone] Facsimile: [phone] Patrick J. Conroy Pro Hac Vice Glenn E. Janik Pro Hac Vice SHORE CHAN BRAGALONE LLP Bank of America Plaza 901 Main Street, Suite 3300 Dallas, Texas 75202 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR PLAINTIFF LUXPRO CORPORATION CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system, this 8th day of March, 2010. /s/ __Phillip N. Cockrell___

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