Automated Media Processing Solutions, Inc., dba Equilibrium

Filing 20

ORDER, Motions terminated: 17 Ex Parte Application MOTION for Extension of Time to File Answer filed by Schawk Digital Solutions, Inc.. Initial Case Management Conference set for 5/13/2016 02:30 PM in Courtroom 1, 17th Floor, San Francisco.. Signed by Judge Susan Illston on 3/11/16. (tfS, COURT STAFF) (Filed on 3/11/2016)

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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Attorneys for Defendant
SCHAWK DIGITAL SOLUTIONS, INC.

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R NIA
FO
A

ER
KEVIN P. ALLEN (Pro hac vice)
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F
ECKERT SEAMANS CHERIN & MELLOTT, LLC
D IS T IC T O
[e-mail]
R
600 Grant Street, 44th Floor
Pittsburgh, PA 15219
The Initial Case Management Conference has been
Telephone: [phone]
continued to 5/13/16 at 2:30 p.m. A Joint Case

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ston
usan Ill

Judge S

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NO

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DERED

O OR
IT IS S

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UNIT
ED

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DANIEL J. KELLY SBN 145088
TUCKER ELLIS LLP
[e-mail]
One Market Plaza
Steuart Tower, Suite 700
San Francisco, CA 94105
Telephone: [phone]
Facsimile: 415.617.2409

RT
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S DISTRICT
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C
TA

Management Conference Statement shall be filed
on May 6, 2016.

UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AUTOMATED MEDIA PROCESSING
SOLUTIONS, INC., dba EQUILIBRIUM, a
corporation,

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Plaintiff,
v.

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SCHAWK DIGITAL SOLUTIONS, INC., a
business entity; BLUE SOFTWARE, LLC,
a business entity,

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Defendants.
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Case No. 3:15-cv-05018-SI
DEFENDANT SCHAWK DIGITAL
SOLUTIONS, INC.’S EX PARTE
MOTION FOR AN ORDER ENLARGING TIME
TO RESPOND TO THE COMPLAINT AND
CONTINUING CASE MANAGEMENT
CONFERENCE
Case Management Conference
Date:
March 18, 2016
Time:
2:30 PM
Department: Courtroom 1
Judge:
Hon. Susan Illston

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MOTION AND GROUNDS
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Defendant Schawk Digital Solutions, Inc. (“SDS”) hereby moves pursuant to Civil L.R. 6-1(b)
and Civil L.R. 6-3 for an order enlarging the time for its response to the complaint filed November 2,
2015 [Document 1]. Based on the agreement of counsel, SDS considered itself served with the
summons and complaint by mail on February 16, 2016, making its response to the complaint due March
11, 2016. SDS respectfully requests a fourteen (14) day enlargement of time to respond to the
complaint. SDS also requests that the case management conference scheduled for March 18, 2016 be

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SCHAWK DIGITAL’S MOTION FOR ENLARGEMENT OF TIME AND CONTINUANCE OF CMC
014080\000002\400195.1

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continued for sixty (60) days to allow the parties to complete a contractual dispute resolution process,

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settle the pleadings, and meet and confer with respect to discovery and case management issues.

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Plaintiff’s complaint alleges causes of action for breach of contract, copyright infringement, and

MediaRich® Server – Software License Agreement between plaintiff Automated Media Processing

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Solutions, Inc. dba Equilibrium (“Equilibrium”) and SDS dated June 28, 2010. The contract is not

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attached to the complaint. However, it contains a provision that requires the parties to engage in a 30

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day Dispute Resolution process prior to commencing legal proceedings. In addition, SDS submits that

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TUCKER ELLIS LLP

unfair business practices against SDS and BLUE Software, LLC (“BLUE”). The contract at issue is a

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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the unfair competition cause of action is preempted by the Copyright Act. As detailed in the attached

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Declaration of Daniel J. Kelly, the defects in the complaint were brought to the attention of plaintiff’s

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counsel Michael T. Welch by letter dated March 8, 2016. On March 9, 2016, Mr. Welch agreed to the

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relief requested in this motion.

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SDS’s counsel Daniel J. Kelly first appeared in the case on March 8, 2016. Kevin P. Allen’s

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application to appear pro hac vice for SDS was granted on March 9, 2016. Defendant BLUE has not yet

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been served with the summons and complaint. Under the circumstances, good cause exists to enlarge

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the time for SDS to respond to the complaint so that plaintiff’s counsel can consider the pleading issues

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and determine whether to file an amended complaint. This enlargement of time will necessarily affect

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the case management conference currently scheduled for March 18, 2016. Good cause also exists to

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continue the case management conference to allow both defendants to respond to the complaint and

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counsel to meet and confer and prepare the required joint case management statement.

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DATED: March 9, 2016

TUCKER ELLIS LLP

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By:

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Daniel J. Kelly
Attorneys for Defendant
SCHAWK DIGITAL SOLUTIONS, INC.

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SCHAWK DIGITAL’S MOTION FOR ENLARGEMENT OF TIME AND CONTINUANCE OF CMC
014080\000002\400195.1

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CERTIFICATE OF SERVICE

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Automated Media Processing Solutions, Inc. v. Schawk Digital Solutions, et al.

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U.S.D.C (N.D. CAL.) CASE NO. Case No. 3:15-cv-05018-SI

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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I, Daniel J. Kelly, certify and declare as follows:
I am over the age of 18 years and not a party to this action. I am a partner in the law firm Tucker
Ellis LLP, and my business address is One Market Plaza, Steuart Tower, Suite 700,
San Francisco, California 94105, which is located in the city, county and state where the service
described below took place.
On the date indicated below, I served on all interested parties in this action a copy of
DEFENDANT SCHAWK DIGITAL SOLUTIONS, INC.’S EX PARTE MOTION FOR AN
ORDER ENLARGING TIME TO RESPOND TO THE COMPLAINT AND CONTINUING
CASE MANAGEMENT CONFERENCE; DECLARATION OF DANIEL J. KELLY
[ X ] by electronically serving the documents described above via United States District Court
Electronic Case Filing website (CM/ECF notification system) on the recipients designated on the
electronic service list that is located on the PACER website. I also emailed a courtesy copy to plaintiff’s
counsel Michael T. Welch at [e-mail] because it appears that the CM/ECF system still
sends notices to his former email address.
I declare under penalty of perjury that the foregoing is true and correct.

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Executed on March 9, 2016, at San Francisco, California.

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/s/

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Daniel J. Kelly
Daniel J. Kelly

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SCHAWK DIGITAL’S MOTION FOR ENLARGEMENT OF TIME AND CONTINUANCE OF CMC
014080\000002\400195.1

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TUCKER ELLIS LLP
DANIEL J. KELLY SBN 145088
[e-mail]
One Market Plaza
Steuart Tower, Suite 700
San Francisco, CA 94105
Telephone: [phone]
Facsimile: 415.617.2409

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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KEVIN P. ALLEN (Pro hac vice)
ECKERT SEAMANS CHERIN & MELLOTT, LLC
[e-mail]
600 Grant Street, 44th Floor
Pittsburgh, PA 15219
Telephone: [phone]
Attorneys for Defendant
SCHAWK DIGITAL SOLUTIONS, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AUTOMATED MEDIA PROCESSING
SOLUTIONS, INC., dba EQUILIBRIUM, a
corporation,

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Plaintiff,
v.

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Case No. 3:15-cv-05018-SI
DECLARATION OF DANIEL J. KELLY IN
SUPPORT OF DEFENDANT SCHAWK
DIGITAL SOLUTIONS, INC.’S EX PARTE
MOTION FOR ENLARGEMENT OF TIME AND
CONTINUANCE OF CASE MANAGEMENT
CONFERENCE

SCHAWK DIGITAL SOLUTIONS, INC., a
business entity; BLUE SOFTWARE, LLC,
a business entity,

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Defendants.
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I, Daniel J. Kelly declare as follows:

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1.

I am a partner in Tucker Ellis LLP, counsel of record for defendant Schawk Digital

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Solutions, Inc. (“SDS”). I have personal knowledge of the matters stated herein, except those stated on

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information and belief, and as to those matters, I believe them to be true. If called upon to do so, I could

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testify competently about them.

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2.

Plaintiff Automated Media Processing Solutions, Inc. dba Equilibrium (“Equilibrium”)

filed its complaint on November 2, 2016. By agreement of counsel, SDS was served with the summons
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DECLARATION OF DANIEL J. KELLY
014080\000002\400206.1

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and complaint by mail with a letter to Kevin P. Allen on February 16, 2016. SDS’s response to the

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complaint is due on March 11, 2016.

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3.

Plaintiff’s complaint alleges causes of action for breach of contract, copyright

contract at issue is a MediaRich® Server – Software License Agreement between plaintiff Equilibrium

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and SDS dated June 28, 2010. The contract is not attached to the complaint. Paragraph 11.5 of the

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agreement requires SDS and Equilibrium to engage in a Dispute Resolution process before commencing

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legal proceedings. It is my understanding that this process has not been initiated or completed. The

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TUCKER ELLIS LLP

infringement, and unfair business practices against SDS and BLUE Software, LLC (“BLUE”). The

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Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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process contemplates successive review of the dispute at several corporate levels over the course of

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approximately 30 days.
4.

I first appeared in this case on behalf of SDS by filing a notice of appearance on March 8,

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2016. That same day, I sent a letter to plaintiff’s counsel Michael T. Welch outlining several

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deficiencies in the complaint and indicating that SDS intended to file a motion to dismiss if the issues

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could not be resolved by stipulation. A true and correct copy of this letter is attached as Exhibit A and

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incorporated by reference.

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5.

On March 8, 2016, I spoke with Brenda Dang, In-House Counsel for defendant BLUE

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Software, LLC (“BLUE”). She advised that BLUE had not been served with the summons and

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complaint.

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6.

On March 9, 2016 at 3:37 p.m., I spoke with Michael T. Welch on the telephone. We

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discussed the status of the case and this motion. Mr. Welch agreed with the requested relief. He also

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agreed to review the provisions of the Software License Agreement, a copy of which I emailed to him.

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He agreed to check on the status of service of process on BLUE.

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7.

Under the circumstances, I believe that good cause exists to enlarge the time for SDS’s

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response to the complaint by fourteen (14) days, to March 25, 2016 and to continue the case

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management conference for sixty (60) days. This will allow all counsel to become more familiar with

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the case and for the pleadings to be settled. It will also allow for the completion of the Dispute

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Resolution process.

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8.

There have been no previous time modifications in the case by stipulation or motion. If
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DECLARATION OF DANIEL J. KELLY

014080\000002\400206.1

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the requested relief is not granted, SDS will be required to prepare and file its motion to dismiss without

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having a reasonable opportunity to meet and confer on a potential stipulated resolution. SDS will also

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be prejudiced by having to expend time and resources in litigation without the benefit of the agreed,

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contractual Dispute Resolution process. In addition, the Court will be inconvenienced in that one of the

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parties in the case, BLUE, will not have appeared in the case prior to the case management conference

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which would likely warrant a continuance.

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TUCKER ELLIS LLP

Cleveland ♦ Columbus ♦ Denver ♦ Los Angeles ♦ San Francisco

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I hereby declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed on March 9, 2016 at San Francisco, California.

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_____/s/ Daniel J. Kelly____________________
Daniel J. Kelly

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DECLARATION OF DANIEL J. KELLY
014080\000002\400206.1

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