Keithley v. The Home Store.Com, Inc. et al

Filing 865

ORDER by Judge Illston finding as moot 860 Motion to Stay (ts, COURT STAFF) (Filed on 11/20/2008)

Case 3:03-cv-04447-SI

Document 860

Filed 11/18/2008

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Attorneys for Plaintiffs KEVIN KEITHLEY and TREN TECHNOLOGIES HOLDINGS, LLC

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION KEVIN KEITHLEY and TREN TECHNOLOGIES HOLDINGS, LLC, Plaintiffs, v. THE HOMESTORE.COM, INC., et al., Defendants. CASE No. C03-04447 SI (EDL) PLAINTIFFS' MOTION FOR ADMINISTRATIVE RELIEF PURSUANT TO CIVIL L.R. 7-11; DECLARATION OF SCOTT R. MOSKO; AND [PROPOSED] ORDER Denied as Moot

496654

PLS' MOT FOR ADMIN RELIEF; DECL. OF S. MOSKO; [P] ORDER Case No. C 03-04447 SI (EDL)

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Scott R. Mosko (State Bar No. 106070) [e-mail] Scott A. Herbst (State Bar No. 226739) [e-mail] FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. Stanford Research Park 3300 Hillview Avenue Palo Alto, California 94304 Telephone: [phone] Facsimile: [phone]

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Case 3:03-cv-04447-SI

Document 860

Filed 11/18/2008

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In light of comments from the bench during the November 14, 2008 hearing on Defendants' pending "Motion for Summary Judgment as to Non-Infringement and Invalidity Based on Indefiniteness" (Dkt. No. 732), Plaintiffs seek a stay until the Court rules at least on this motion. Plaintiffs respectfully make this request because this Court's decision on the above-referenced motion (and perhaps others filed currently with said motion) will likely have a significant impact on the content of the parties' pretrial submissions, currently due on December 2, 2008. Currently, the parties will be exchanging witness lists, evidence lists, exhibit lists, and jury verdict forms on November 19, 2008. On November 24, 2008, the parties will be serving objections to (1) the already-exchanged jury instructions, (2) exhibits proposed by the opposing side, and (3) discovery that the opposing side has indicated it will use at trial. Significant time and effort will be expended by both sides that could be avoided (or may have to be re-done) depending upon this Court's decision on the pending Summary Judgment Motions. The above-referenced exchanges will be used by both sides in their Pre-Trial Conference Statements. The contents of the parties' Pre-Trial Conference Statements will likely be affected based on this Court's ruling on the pending Summary Judgment Motion addressed during the hearing. Hence, the proposed stay would allow the parties to conform their statements consistent with this Court's yet-to-be issued rulings. By filing this motion, Plaintiffs do not seek to hurry the Court in its decision-making process. Instead, Plaintiffs are simply proposing a temporary stand-still arrangement pending an order on the motions. Once this Court issues this order, the Pre-Trial Conference documents can be prepared consistent with it, which will further facilitate the Pre-Trial Conference, now scheduled for December 16, 2008. The parties disagree on whether this temporary stay should issue. While Defendants may be willing to adjust one or more of the internal deadlines the parties have set, Defendants do not want any adjustment of the dates this Court has already set. Plaintiffs on the other hand believe that a /// /// /// /// 1
PLS' MOT FOR ADMIN RELIEF; DECL. OF S. MOSKO; [P] ORDER Case No. C 03-04447 SI (EDL)

Case 3:03-cv-04447-SI

Document 860

Filed 11/18/2008

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logically-ordered process, one allowing the parties to prepare their Pre-Trial Conference submissions consistent with this Court's yet-to-be issued rulings on the pending motions, makes more sense, and consequently move for a temporary stay until this Order issues. Respectfully submitted, Dated: November 18, 2008 FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P.

By: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
496654

/s/ Scott R. Mosko Attorneys for Plaintiffs Kevin Keithley and TREN Technologies Holdings, LLC

DECLARATION OF SCOTT R. MOSKO I, Scott R. Mosko, declare as follows: 1. I am an attorney licensed to practice before this Court and all courts of the State of

California, and am a partner with Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., counsel for Plaintiffs in the above-entitled action. I submit this declaration in support of Plaintiffs Kevin Keithley and Tren Technologies Holdings, Inc.'s Administrative Motion for Administrative Relief. The matters stated herein are based upon my personal knowledge, and if called as a witness, would testify as to the following statements. 2. The dates for exchange of information consistent with this Court's Pre-Trial

Conference submissions as set forth in the body of this motion are accurately stated. Currently, the Court has ordered the parties to file their Pre-Trial Conference Statements on December 2, 2008. The Pre-Trial Conference is scheduled for December 16, 2008. The trial date is January 12, 2009. 3. On November 17, 2008, I spoke with Luther Orton, counsel for Defendants and

proposed a temporary stay. Mr. Orton advised that Defendants would not agree to any stay of the proceedings, although Defendants might consider altering one or more of the earlier internal agreedupon dates the parties had set so that the Pre-Trial Conference Statements could be timely filed. /// 2
PLS' MOT FOR ADMIN RELIEF; DECL. OF S. MOSKO; [P] ORDER Case No. C 03-04447 SI (EDL)

Case 3:03-cv-04447-SI

Document 860

Filed 11/18/2008

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4.

On November 18, 2008, Mr. Luther again advised that Defendants did not agree to

any stay or stand-still agreement pending this Court's decision on the Summary Judgment Motions. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and this declaration was executed this November 18, 2008, at Palo Alto, California.

/s/ Scott R. Mosko

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PLS' MOT FOR ADMIN RELIEF; DECL. OF S. MOSKO; [P] ORDER Case No. C 03-04447 SI (EDL)

Case 3:03-cv-04447-SI

Document 860

Filed 11/18/2008

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[PROPOSED] ORDER Upon good cause shown, IT IS HEREBY ORDERED that the Parties not exchange documents in preparation for the Pre-Trial Conference Statement until seven days after this Court issues its Order on the pending Motions for Summary Judgment. If a further adjustment to the current schedule is necessary, the parties are ordered to meet and confer, and provide a proposed order to the Court for consideration.

Dated: __________, 2008

_________________________________ UNITED STATES DISTRICT JUDGE

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PLS' MOT FOR ADMIN RELIEF; DECL. OF S. MOSKO; [P] ORDER Case No. C 03-04447 SI (EDL)