Oracle Corporation et al v. SAP AG et al

Filing 1086

MOTION to Stay filed by Oracle International Corporation, Oracle USA Inc.. Motion Hearing set for 1/11/2012 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 9/27/2011. Replies due by 10/4/2011. (Attachments: # 1 Proposed Order)(Howard, Geoffrey) (Filed on 9/13/2011)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 BINGHAM MCCUTCHEN LLP DONN P. PICKETT (SBN 72257) GEOFFREY M. HOWARD (SBN 157468) HOLLY A. HOUSE (SBN 136045) ZACHARY J. ALINDER (SBN 209009) BREE HANN (SBN 215695) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: 415.393.2000 Facsimile: 415.393.2286 BOIES, SCHILLER & FLEXNER LLP DAVID BOIES (Admitted Pro Hac Vice) 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8200 Facsimile: (914) 749-8300 STEVEN C. HOLTZMAN (SBN 144177) FRED NORTON (SBN 224725) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: (510) 874-1000 Facsimile: (510) 874-1460 DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: 650.506.4846 Facsimile: 650.506.7144 Attorneys for Plaintiffs Oracle USA, Inc., et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION 22 23 24 ORACLE USA, INC., et al., Plaintiffs, 25 v. 26 SAP AG, et al., 27 28 Defendants. No. 07-CV-01658 PJH (EDL) ORACLE’S NOTICE OF MOTION AND MOTION FOR STAY; MEMORANDUM OF POINTS AND AUTHORITIES Date: September 28, 2011 Time: 9:00 a.m. Place: 3rd Floor, Courtroom 3 Judge: Hon. Phyllis J. Hamilton ORACLE’S MOTION FOR STAY, CASE NO. 07-CV-01658 PJH (EDL) 1 NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE THAT on September 28, 2011,1 at 9:00 a.m., in the 2 3 United States District Court, Northern District of California, Oakland Division, located at 1301 4 Clay Street, Oakland, California, Courtroom 3, 3rd Floor, before the Hon. Phyllis J. Hamilton, 5 Plaintiffs Oracle International Corp. and Oracle USA, Inc. (“Oracle”) will and does hereby bring 6 a motion to request that the Court stay proceedings in this Court (other than its accompanying 7 certification motion) pending resolution of Oracle’s motion to request that the Court amend its 8 Order Granting Defendants’ Motion for JMOL, and Motion for New Trial; Order Denying 9 Plaintiffs’ Motion for New Trial; Order Partially Vacating Judgment (the “Post-Trial Order”) to 10 certify the Post-Trial Order for interlocutory review, pursuant to 28 U.S.C. 1292(b) and Fed. R. 11 App. Proc. 5(a)(3) and any subsequent appellate proceedings. This motion is based upon this 12 Notice of Motion and Motion and Memorandum of Points and Authorities, the Post-Trial Order, 13 the evidence at trial, the jury instructions and verdict, the related prior motions, briefing, and 14 orders, and such oral argument and other matters as the Court may consider. 15 REQUESTED RELIEF 16 Oracle requests that the Court stay all proceedings in this Court (other than 17 Oracle’s certification motion) and extend the time for Oracle to accept or reject the remittitur 18 pursuant to the Post-Trial Order until 10 days after final disposition of Oracle’s 1292(b) 19 application and any subsequent appellate proceedings. 20 21 22 23 24 25 26 27 28 1 The parties have stipulated to an expedited briefing schedule and hearing date for this motion; the stipulation and proposed order is filed along with this motion. 1 ORACLE’S MOTION FOR STAY, CASE NO. 07-CV-01658 PJH (EDL) 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 In its accompanying motion, Oracle requests that the Court amend its Post-Trial 4 Order to certify it for interlocutory appeal, to resolve certain controlling questions of law, 5 pursuant to 28 U.S.C. § 1292(b). Oracle submits that the Court should stay other proceedings in 6 this case pending resolution of Oracle’s certification request and any subsequent appellate 7 proceedings. 8 9 As set forth in the accompanying motion, Oracle’s request establishes at least a substantial case for certification and potential reversal on appeal. Given the enormous 10 expenditure of resources that could be avoided, the balance of hardships, the public interest 11 (including those of prospective jurors), and judicial efficiency all tip sharply in favor of a stay. 12 Therefore, Oracle requests that the Court stay proceedings in this Court, and extend the time for 13 Oracle to accept or reject the remittitur, until 10 days after final appellate disposition of Oracle’s 14 1292(b) application (to be promptly filed upon this Court’s certification) and any subsequent 15 appellate proceedings. 16 II. 17 ARGUMENT “When considering a stay pending appeal pursuant to § 1292(b), the Court has 18 broad discretion to decide whether a stay is appropriate to ‘promote economy of time and effort 19 for itself, for counsel, and for litigants.’” Asis Internet Servs. v. Active Response Group, No. C07 20 6211 THE, 2008 WL 4279695, at * 3-4 (N.D. Cal. Sep. 16, 2008) (quoting Ass’n of Irritated 21 Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008) (quoting Filtrol 22 Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir.1972))). This Court may therefore stay the 23 proceedings pending resolution of Oracle’s request for certification and, if certification is 24 granted, pending resolution of Oracle’s application for interlocutory appeal and any subsequent 25 appellate proceedings. See Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 26 1465 (9th Cir. 1983) (“[A] trial court may, with propriety, find it is efficient for its own docket 27 and the fairest course for the parties to enter a stay of an action before it, pending resolution of 28 independent proceedings which bear upon the case.”) (internal citation omitted); see also Via 2 ORACLE’S MOTION FOR STAY, CASE NO. 07-CV-01658 PJH (EDL) 1 Techs., Inc. v. Sonicblue Claims, LLC, No. C 09–2109 PJH, 2011 WL 2437425, at *2 (N.D. Cal. 2 June 17, 2011) (staying trial court proceedings upon certification of the Court’s order for 3 interlocutory appeal); Aggio v. Estate of Aggio, No. C 04-4357 PJH, 2006 WL 149006, at *2 4 (N.D. Cal. Jan. 18, 2006) (same). 5 In exercising its discretion to grant a stay, a court considers whether 6 the stay applicant has made a strong showing that it is likely to succeed on the merits; whether 7 the applicant will be irreparably injured absent a stay; whether issuance of the stay will 8 substantially injure the other parties interested in the proceeding; and where the public interest 9 lies. Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 2011) (citing Nken v. Holder, 129 S.Ct. 10 1749, 1761 (2009)). Although the first two factors are the most critical, courts must employ a 11 “flexible” balancing approach in weighing all the relevant factors along a “continuum.” Id. at 12 965-66. A stay applicant “need not demonstrate that it is more likely than not that [it] will win 13 on the merits.” Id. at 966. Rather, a stay is appropriate where an applicant demonstrates “a 14 substantial case on the merits and that the balance of hardships tips sharply in [its] favor.” Id. at 15 970; see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) 16 (ruling with respect to the parallel test for preliminary injunctions that an injunction may issue 17 where “serious questions going to the merits [are] raised and the balance of hardships tips 18 sharply in the plaintiff’s favor”) (internal quotation omitted). 19 Oracle has met this test. It has established a substantial case on the merits of its 20 certification motion and subsequent appeal. In addition, the balance of hardships and public 21 interest weigh heavily in favor of granting a stay. 22 23 A. Oracle Has Established a Substantial Case on the Merits of Its Certification Request and Any Subsequent Appeal As set forth in its certification motion, Oracle’s request establishes a substantial 24 case on the merits of certification for interlocutory appeal. Given the acknowledged absence of 25 “explicit[ ]” Ninth Circuit authority in support of the Post-Trial Order’s legal rulings regarding 26 the availability of hypothetical license damages, Post-Trial Order at 12 & n.2, and the authority 27 Oracle submits is contrary to them, there are at least substantial grounds for a difference of 28 3 ORACLE’S MOTION FOR STAY, CASE NO. 07-CV-01658 PJH (EDL) 1 opinion to support certification for interlocutory appeal. Consequently, this factor strongly 2 favors granting a stay pending resolution of Oracle’s request for certification. Cf. Hollingsworth 3 v. Perry, 130 S.Ct. 705, 710 (2010) (per curiam) (granting stay pending filing and disposition of 4 petition for writ of certiorari, where applicant demonstrated a “fair prospect” a majority of the 5 Court would grant the petition for a writ of certiorari and reverse the order below). 6 Should the Court grant Oracle’s request and the Ninth Circuit grant Oracle’s 7 subsequent application for interlocutory appeal, Oracle has also established at least a substantial 8 case on the merits of its interlocutory appeal. As shown in its certification motion, Oracle has 9 raised “serious legal questions” going to the merits of the most significant legal issue in the 10 case – the test for recovering hypothetical license damages. Leiva-Perez, 640 F.3d at 968. 11 Consequently, this factor strongly favors granting a stay. See, e.g., Del Rio v. Creditanswers 12 LLC, No. 10cv346-WQH-BLM, 2010 WL 3418430, at *5 (S.D. Cal. Aug. 26, 2010) (granting 13 stay pending appeal, where appeal raised “serious legal questions”); Karimy v. Assoc. Gen. 14 Contractors of Am, Civil No. 08-CV-297-L(CAB), 2009 WL 3698397, at *1 (S.D. Cal Nov. 5, 15 2009) (granting stay pending appeal, where a divergence of authorities on the issue subject to 16 appeal “present[ed] a serious legal question”). 17 B. 18 The Balance of Hardships Tips Sharply in Favor of a Stay In the absence of a stay, the Post-Trial Order would require the Court, parties, and 19 third parties to endure a second round of pre-trial motions, trial preparation, trial, and post-trial 20 motions, before an inevitable appeal of that Order. Oracle would be “irreparably injured [by 21 being] required to conduct a retrial which might be mooted by a reversal of this [C]ourt’s order 22 on appeal.” Walker v. Martel, No. C 94–1997 SBA, 2011 WL 2837406, at *2 (N.D. Cal. July 23 13, 2011).2 Indeed, all parties, the Court, and the public, including prospective jurors, have an 24 interest in avoiding the potentially unnecessary expenditure of time, money, and judicial 25 resources of a retrial. Id. at *3 (granting stay pending appeal); see also Becker v. Martel, No. 26 2 27 28 Even if the Ninth Circuit were to rule that a new trial including the fair market value damages theory were required, it would be far more efficient for all involved to stay the case pending the appellate decision, rather than moving forward on parallel tracks with a second trial limited to lost/infringer’s profits. 4 ORACLE’S MOTION FOR STAY, CASE NO. 07-CV-01658 PJH (EDL) 1 10cv1209–W (AJB), 2011 WL 2181361, at *2 (S.D. Cal. June 3, 2011) (granting stay pending 2 appeal, reasoning that “[i]t makes little sense” to conduct a retrial “if there is any possibility the 3 trial could be mooted by a reversal of [the] [c]ourt’s order on appeal” (internal citation omitted)). 4 Hence, a stay promotes the parties’ interests as well the public interest in “ensur[ing] that the 5 [C]ourt is not required to try essentially the same case twice.” Eaton v. Siemens, No. CIV. S-07- 6 315 FCD KJM, 2010 WL 2634207, at *1 (E.D. Cal. June 30, 2010) (granting stay pending 7 appeal). 8 On the other hand, a stay will benefit the Court and the parties even if Oracle’s 9 appeal is unsuccessful. The scope of remaining issues in the case will be more clearly defined 10 for any subsequent trial. Such a result could, therefore, “alter the direction of the current 11 proceedings.” Ass’n. of Irritated Residents., 634 F. Supp. 2d at 1094 (granting stay pending 12 interlocutory appeal). In either event, resolution of Oracle’s request and subsequent appellate 13 proceedings could “materially affect this case and advance the ultimate termination of litigation.” 14 Watson v. Yolo Co. Flood Control and Water Conservation Dist., No. 2:06-cv-1549 FCD DAD, 15 2007 WL 4107539, at *4 (E.D. Cal. Nov. 16, 2007). Under such circumstances, a stay 16 “promotes economy of time and effort both for the court and the parties.” Id. (granting stay 17 pending interlocutory appeal); see also Lakeland Village Homeowners Ass'n v. Great Am. Ins. 18 Group, 727 F. Supp. 2d 887, 897 (E.D. Cal. 2010) (same). 19 20 C. A Stay Will Not Substantially Injure SAP SAP will not be injured if other proceedings are stayed while Oracle’s 21 certification motion and potential appeal are decided. SAP, like Oracle, will benefit from not 22 having wasted time and money on preparations and a new trial if they are made unnecessary by 23 the Ninth Circuit’s opinion. Nor does SAP have any valid interest in assuring that a new trial 24 occurs before the Ninth Circuit can decide the legal issues framed by the Post-Trial Order. 25 SAP may complain that Oracle’s appeal will take time and delay the new trial, if 26 one is needed. But by potentially avoiding that new trial altogether, a stay is more likely to 27 speed final resolution of this case along than to delay it. In any case, SAP admits that it is liable. 28 Even by its reckoning, it owes Oracle tens of millions of dollars in damages. SAP would not be 5 ORACLE’S MOTION FOR STAY, CASE NO. 07-CV-01658 PJH (EDL) 1 harmed by delaying the day that it must pay Oracle. Any desire by SAP to race to a new trial, 2 for whatever reason, is easily outweighed by the case-management reasons to let the potentially 3 dispositive appeal proceed before another trial. 4 D. The Public Interest Favors A Stay 5 Last, the public interest favors a stay. This Court has a busy docket. Many other 6 litigants need their cases resolved. Fairness to them and the Court itself dictates that the Court’s 7 scarce resources be used as efficiently as possible. See Asis Internet Servs., 2008 WL 4279695, 8 at * 3-4. The substantial time that this Court and its staff must invest in case management, pre- 9 trial motions, and trying the case a second time will be wasted if the Ninth Circuit reverses the 10 Post-Trial Order. It is a much more efficient use of judicial resources to wait and see whether, 11 and under what circumstances if any, a new trial is needed. 12 III. 13 CONCLUSION The Court should stay the proceedings in the trial court, and extend the time for 14 Oracle to accept or reject the remittitur, until 10 days after final appellate disposition of Oracle’s 15 1292(b) application (to be promptly filed upon this Court’s certification of its Post-Trial Order) 16 and any subsequent appellate proceedings. 17 DATED: September 13, 2011 Bingham McCutchen LLP 18 19 20 21 By: /s/ Geoffrey M. Howard Geoffrey M. Howard Attorneys for Plaintiffs Oracle USA, Inc., et al. 22 23 24 25 26 27 28 6 ORACLE’S MOTION FOR STAY, CASE NO. 07-CV-01658 PJH (EDL)

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