Google Inc. v. Netlist, Inc.

Filing 95

ORDER by Judge Saundra Brown Armstrong DENYING WITHOUT PREJUDICE 85 Motion to Consolidate Cases in case 4:08-cv-04144-SBA. A Telephonic Case Management Conference is set for 03/04/10 at 3:15 PM. (lrc, COURT STAFF) (Filed on 2/3/2010) Modified on 2/4/2010 (jlm, COURT STAFF). Modified on 2/5/2010 (kk, COURT STAFF).

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1 2 3 4 5 GOOGLE, INC., 6 7 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION Case No: C 08-4144 SBA Related to: C 09-5718 SBA ORDER DENYING JOINT MOTION TO CONSOLIDATE Docket 85 Plaintiff, vs. 8 NETLIST, INC. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant. Google, Inc. ("Google"), filed the above-captioned declaratory relief action ("the First Case") against Netlist, Inc. ("Netlist"), on August 29, 2008, seeking a declaration of noninfringement and invalidity as to U.S. Patent No. 7,289,386, which is owned by Netlist. The Court conducted a claims construction hearing on November 12, 2009, and scheduled a trial date of November 10, 2010. A mandatory settlement conference is scheduled to take place before Magistrate Judge Maria-Elena James on August 3, 2010. However, the parties have also indicated that willing to participate in private mediation. See Docket 78. On December 4, 2009, Netlist filed a separate action against Google, accusing it infringing U.S. Patent No. 7,619,912. See Netlist, Inc. v. Google, Inc., C 09-5718 SBA ("the Second Case"). On January 6, 2010, the parties filed a Joint Motion to Consolidate Cases. (Docket 85.) The parties indicate that both cases involve the same memory modules used in Google's servers, and as such, the actions share a common nucleus of fact. Based on that commonality, the parties request that the Court: (1) consolidate the cases for trial under Federal Rule of Civil Procedure 42(a); (2) vacate the pretrial schedule and trial date in the First Case in order to coordinate both cases for trial; and (3) schedule a date for a Case Management Conference to set a new pretrial schedule applicable to both cases. The Court is not convinced that the parties' requests to consolidate and vacate the pretrial schedule and trial date in the First Action are either necessary or appropriate. The First 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case has been pending for over a year and discovery is well under way in that case. In addition, the Court has already held a claims construction hearing and construed the disputed claim terms. Based on the advanced stage of the proceedings in the First Action, the Court sees no reason to vacate the pretrial schedule in the First Case based on Netlist's decision to file a new action over a year after the First Case was filed, particularly given that the new action purportedly involves the same memory modules at issue in the First Case. The Court also has serious concerns regarding the potential for the instant litigation to expand exponentially, thereby increasing the cost to the parties and consuming an inordinate amount of judicial resources. Although a settlement conference has been scheduled in the First Case for August 3, 2010, the Court believes that it is in the parties' mutual interest to engage in a settlement conference or mediation, sooner rather than later--before the parties have expended what likely will be a considerable amount of time and resources litigating these two cases. Accordingly, IT IS HEREBY ORDERED THAT: 1. 2. The parties' Joint Motion to Consolidate is DENIED, without prejudice. Within fourteen days of the date this Order is filed, the parties shall file a joint statement (and a proposed order) which specifies whether they prefer (a) to have both cases referred to a Magistrate Judge for an early mandatory settlement conference or (b) to proceed with a private mediator. In the event, the parties elect to have the cases referred to a Magistrate Judge, the Court will issue an order referring this to a Magistrate Judge James for a mandatory settlement conference to take place within 60 days. If the parties are in agreement on a specific settlement judge (other than Magistrate Judge James), they should so indicate in their statement. In the event that the parties elect to proceed with private mediation, they shall indicate in their joint statement the name of the mediator and the date of the mediation. 3. The parties in both cases shall appear for a telephonic Case Management Conference in connection with both cases on March 4, 2010 at 3:15 p.m. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than ten (10) days prior to the Case Management -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Conference that complies with the Standing Order for All Judges of the Northern District of California and the Standing Order of this Court. Plaintiff shall be responsible for filing the statement as well as for arranging the conference call. All parties shall be on the line and shall call (510) 637-3559 at the above indicated date and time. 4. 5. The Clerk shall file this Order in C 08-4144 SBA and C 09-5718 SBA. This Order terminates Docket 85. IT IS SO ORDERED. Dated: February 2, 2010 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge -3-

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