Calix Networks, Inc. v Wi-Lan, Inc.

Filing 90

ORDER TO CONSOLIDATE CASE NOS. C-09-5038CRB AND C-11-0004EMC re 89 Stipulation filed by Calix Networks, Inc.. Signed by Judge Charles R. Breyer on 3/25/2011. (beS, COURT STAFF) (Filed on 3/28/2011)

Calix Networks, Inc. v Wi-Lan, Inc.

Doc. 90

Case3:09-cv-06038-CRB Document89

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A limited liability partnership formed in the State of Delaware

Scott D. Baker (SBN 84923) Email: [e-mail] John P. Bovich (SBN 150688) Email: [e-mail] William R. Overend (SBN 180209) Email: [e-mail] Jonah D. Mitchell (SBN 203511) Email: [e-mail] Adaline J. Hilgard (SBN 173213) Email: [e-mail] REED SMITH LLP 101 Second Street, Suite 1800 San Francisco, CA 94105-3659 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Calix, Inc. KILPATRICK TOWNSEND & STOCKTON LLP David B. Perry (SBN 255925) Email: [e-mail] Two Embarcadero Center, Eighth Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Wi-LAN, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CALIX NETWORKS, INC., a Delaware Corporation, Plaintiff, vs. WI-LAN, INC., a Canadian Corporation, Defendant. Case No. 09-6038 CRB STIPULATION AND [PROPOSED] ORDER TO CONSOLIDATE CASE NOS. CV-09-6038 CRB AND CASE NO. C-11-00004 EMC FOR ALL PURPOSES Complaint Filed: December 28, 2009

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REED SMITH LLP

Case No. C-09-6038 STIPULATION AND [PROPOSED] ORDER TO CONSOLIDATE CASES

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Dockets.Justia.com

Case3:09-cv-06038-CRB Document89

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Pursuant to Federal Rule of Civil Procedure 42 and Local Rule 7-12, Plaintiff Calix, Inc., formerly known as Calix Networks, Inc. ("Calix") and Defendant Wi-LAN, Inc. ("Wi-LAN"), by and through their respective undersigned counsel, hereby stipulate and agree as follows: 1. Calix filed the instant lawsuit against Wi-LAN on December 28, 2009. This lawsuit

seeks declaratory judgments that U.S. Patent No. 5,956,323 ("the `323 patent") and U.S. Patent No. 6, 763,019 ("the `019 patent") are invalid, not infringed, and unenforceable, and also asserts claims against Wi-LAN for breach of contract and related claims. On October 10, 2010, Wi-LAN filed its First Amended Answer and Counterclaim, alleging infringement of the `323 and `019 patents by Calix. [Doc. # 77.] 2. On April 1, 2010, Wi-LAN filed an action, Wi-Lan v. CALIX, Inc. Case No. 2:10-CV117-TJW, against Calix asserting infringement of the `323 and `019 patents in the U.S. District Court for the Eastern District of Texas ("the Texas Action"). On November 29, 2010, Calix filed an Answer and Counterclaims, asserting the same Counterclaims in the Texas Action which it had asserted as claims for relief in its earlier-filed suit against Wi-LAN in California. 3. Pursuant to Calix's unopposed Motion to Transfer Venue filed in the Texas Action,

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the District Court for the Eastern District of Texas, in an Order dated December 6, 2010, transferred the Texas Action to the Northern District of California. For the Court's convenience, the Transfer Order is attached as Exhibit A hereto. Thereafter, the Clerk for the United States District Court for the Northern District of California gave notice on January 3, 2011 that the Texas Action was transferred, and would proceed under the new Case No. C-11-00004 EMC. [Docket No. 28] For the Court's convenience, a copy of the Clerk's Notice of Transferred Case is attached hereto as Exhibit B. This action and Case No. C-11-00004 EMC are thus both pending in this District. 4. Both this case and Case No. C-11-00004 involve the same parties (Calix and Wi-

LAN), the same two patents (the `323 and `019 patents), at least some of the same accused products, and substantially the same questions of law and questions of fact ­ whether Calix has infringed the `323 and `019 patents and whether those patents are invalid and/or unenforceable. Calix's other
Case No. C-09-6038

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A limited liability partnership formed in the State of Delaware

claims in this case are the same as its Counterclaims in Case No. C-11-00004. Accordingly, the parties agree that the two cases should be consolidated for all purposes under the Case Number assigned for this case, Case No. CV-09-6038 CRB, and should proceed according to the timeline set forth in the parties' October 29, 2010 Joint Case Management Statement [Docket No. 78] and this Court's November 5, 2010 Minute Order. [Docket No. 79]. DATED: March 23, 2011 Respectfully submitted, REED SMITH LLP

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By: /s/ William Overend1 William Overend Attorneys for Plaintiff CALIX NETWORKS, INC.

REED SMITH LLP

Respectfully submitted, MCKOOL SMITH, P.C.

By: /s/ Michael G. McManus Michael G. McManus Attorneys for Defendant WI-LAN, INC.

Pursuant to Stipulation, IT IS SO ORDERED.

UNIT ED

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March 25, 2011 DATED: _______________________.

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S DISTRICT TE C TA

1 Filer's Attestation: Pursuant to General Order No. 45, SectionE X(B) regarding signatures, the e-

filer hereby attests that concurrence in the filing of this documentR N been obtained from C has F all D IS T IC T O signatories. R
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