EIT Holdings LLC v. TheStreet.com, Inc.

Filing 37

STIPULATION AND ORDER STAYING CASE PENDING APPEAL. Signed by Judge Joseph C. Spero on 1/26/12. (klhS, COURT STAFF) (Filed on 1/30/2012)

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DURIE TANGRI LLP
DARALYN J DURIE (SBN 169825)
[e-mail]
RYAN M. KENT (SBN 220441)
[e-mail]
EUGENE NOVIKOV (SBN 257849)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile:
415-236-6300

Mark W. Good (State Bar No. 218809)
Benedict O’Mahoney (State Bar No. 152447)
TERRA LAW LLP
177 Park Avenue, Third Floor
San Jose, California 95113
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]

Attorneys for Defendant
and Counterclaim Plaintiff
THESTREET, INC.
(f/k/a THE STREET.COM, INC.)

Edward W. Goldstein (TX Bar No. 08099500)
Alisa Lipski (TX Bar No. 24041345)
Jody M. Goldstein (TX Bar No. 24002153)
Goldstein & Lipski, PLLC
1177 West Loop South, Suite 400
Houston, Texas 77027
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff
EIT HOLDINGS LLC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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EIT HOLDINGS, LLC, a Delaware company

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Plaintiff and Counterclaim Defendant,
v.
THESTREET.COM, INC., a Delaware corporation

Case No. 3:11-cv-02469-JCS
JOINT STIPULATION AND [PROPOSED]
ORDER STAYING CASE PENDING APPEAL
Ctrm: G
Judge: Honorable Joseph C. Spero

Defendant and Counterclaim Plaintiff.

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JOINT STIPULATION AND [PROPOSED] ORDER STAYING CASE PENDING APPEAL
CASE NO. 3:11-CV-02469-JCS

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JOINT STIPULATION
On December 10, 2010, EIT filed a patent infringement action against multiple defendants in the

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Northern District of California (C-10-05623-WHA) before the Honorable William H. Alsup. That action

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alleged that each defendant infringed claims 40 and 41 of U.S. Patent No. 5,828,837. After the initial

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case management conference, Judge Alsup held that the defendants, including TheStreet, Inc. f/k/a The

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Street.com Inc. (“TheStreet), were improperly joined and dismissed all but the first-named defendant

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(Yelp! Inc.). EIT thereafter filed this action against The Street alleging infringement of the same claims.

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At the initial case management conference in this action, the parties informed the Court that

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Judge Alsup had set a claim construction hearing in the originally-filed Yelp case for early October 2011.

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The parties accordingly asked the Court to continue the case management conference and to postpone

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setting a schedule until Judge Alsup had had time to consider EIT and Yelp’s respective positions on

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what the claims mean. The Court agreed and set another case management conference. At that

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subsequent conference held on January 13, 2012, the parties explained the current proceedings before

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Judge Alsup, including that Yelp had filed a motion for summary judgment of invalidity. The Court

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decided again to set a further case management conference.

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On January 20th, Judge Alsup issued an order on the summary judgment motion brought by Yelp,

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holding that claims 40 and 41 are invalid. EIT already has filed a notice of appeal that indicates its intent

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to appeal inter alia the summary judgment order entered in the Yelp case. If affirmed, however, there is

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no dispute that that summary judgment order would completely resolve the case against TheStreet

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pending before this Court. The parties therefore respectfully request that the Court stay this case pending

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the resolution of EIT’s appeal of the summary judgment order entered in EIT Holdings, LLC v. Yelp!

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Inc., case no. 3:10-cv-05623-WHA (N.D. Cal.).

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NOW, THEREFORE, IT IS HEREBY AGREED AND STIPULATED THAT:

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The undersigned parties agreed to stay this case, EIT Holdings, LLC v. TheStreet, Inc. f/k/a The

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Street.com Inc., case no. 3:11-cv-02469-JCS, until the fifth court day after EIT Holdings, LLC’s appeal

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of the summary judgment order in EIT Holdings, LLC v. Yelp! Inc., case no. 3:10-cv-05623-WHA (N.D.

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Cal.) has been finally adjudicated, which shall be the date on which the last appeal or certiorari petition

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with respect to the summary judgment order has been denied, dismissed, withdrawn, or otherwise
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JOINT STIPULATION AND [PROPOSED] ORDER STAYING CASE PENDING APPEAL
CASE NO. 3:11-CV-02469-JCS

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determined.

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Dated: January 25, 2012

GOLDSTEIN & LIPSKI, PLLC

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/s/ Edward W. Goldstein
By:

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EDWARD W. GOLDSTEIN

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Attorneys for Plaintiff and Counterclaim
Defendant EIT Holdings, LLC

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Dated: January 25, 2012

DURIE TANGRI LLP
/s/ Ryan M. Kent

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By:

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RYAN M. KENT

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Attorneys for Defendant and Counterclaim
Plaintiff TheStreet, Inc. f/k/a The Street.com
Inc.

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FILER’S ATTESTATION
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I, Ryan Kent, am the ECF User whose identification and password are being used to file this
document. Pursuant to General Order 45.X.B, I hereby attest that counsel for Plaintiff and Counterclaim
Defendant EIT Holdings, LLC has concurred in this filing.

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/s/ Ryan M. Kent

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RYAN M. KENT

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JOINT STIPULATION AND [PROPOSED] ORDER STAYING CASE PENDING APPEAL
CASE NO. 3:11-CV-02469-JCS

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[PROPOSED] ORDER

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WHEREAS, Plaintiff and Counterclaim Defendant EIT Holdings, LLC and Defendant and

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Counterclaim Plaintiff TheStreet, Inc. f/k/a The Street.com Inc. have agreed to stay this case, EIT

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Holdings, LLC v. The Street.com Inc, United States District Court, Northern District of California, case

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no. 3:11-cv-02469-JCS until the fifth court day after EIT Holdings, LLC’s appeal of the summary

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judgment order in EIT Holdings, LLC v. Yelp! Inc., case no. 3:10-cv-05623-WHA (N.D. Cal.) has been

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finally adjudicated, which shall be the date on which the last appeal or certiorari petition with respect to

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the summary judgment order has been denied, dismissed, withdrawn, or otherwise determined.
NOW, THEREFORE, IT IS SO ORDERED.

January 26
DATED: _______________, 2012

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HONORABLE JOSEPHpero SPERO
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United StatesJudge Jose Judge
District

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JOINT STIPULATION AND [PROPOSED] ORDER STAYING CASE PENDING APPEAL
CASE NO. 3:11-CV-02469-JCS