Netlist, Inc. v. Google Inc.

Filing 62

Unopposed MOTION to Continue re Claim Construction Hearing Date filed by Netlist, Inc.. (Attachments: # 1 Proposed Order)(Cunningham, Sean) (Filed on 11/5/2010) Modified on 11/8/2010 (jlm, COURT STAFF).

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Netlist, Inc. v. Google Inc. Doc. 62 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 DLA PIPER LLP (US) S A N DI E G O SEAN C. CUNNINGHAM, Bar No. 174931 sean.cunningham@dlapiper.com JOHN D. KINTON, Bar No. 203250 john.kinton@dlapiper.com JESSE HINDMAN, Bar No. 222935 jesse.hindman@dlapiper.com DLA PIPER LLP (US) 401 B Street, Suite 1700 San Diego, CA 92101-4297 Tel: 619.699.2700 Fax: 619.699.2701 JOHN M. GUARAGNA, Bar No. 199277 john.guaragna@dlapiper.com DLA PIPER LLP (US) 401 Congress Avenue, Suite 2500 Austin, TX 78701-3799 Telephone: (512) 457-7125 Facsimile: (512) 721-2325 Attorneys for Plaintiff NETLIST, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION NETLIST, INC., Plaintiff, v. GOOGLE, INC., Defendant. Case No. C 09-05718 SBA [Related to Case No. C 08-04144 SBA] PLAINTIFF NETIST, INC.'S UNOPPOSED MOTION TO CONTINUE THE CLAIM CONSTRUCTION HEARING DATE WEST\222725592.1 UNOPPOSED MOTION TO CONTINUE CLAIM CONSTRUCTION HEARING DATE CASE NO. C 09-05718 SBA [RELATED TO CASE NO. C 08-04144 SBA] Dockets.Justia.com 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 I. INTRODUCTION. Plaintiff Netlist, Inc. ("Netlist") brings this unopposed motion and requests that the Court continue the claim construction hearing in this matter. The requested continuance is necessary to provide Netlist's newly substituted counsel, DLA Piper LLP (US) ("DLA Piper"), adequate time to analyze the parties' claims and defenses and prepare to address the complex technology that will be at issue during the Markman hearing. Netlist has acted diligently in bringing this motion and good cause exists for Netlist's request. Moreover, this motion is unopposed and Defendant Google Inc. ("Google") will suffer no prejudice if the requested continuance is granted. Finally, a continuance would have minimal impact on the case schedule--no trial date has been set and there are no other outstanding Court deadlines. For these reasons, Netlist requests that the Court continue the claim construction hearing currently scheduled for December 8, 2010 to March 17, 2011.1 II. GOOD CAUSE SUPPORTS NETLIST'S REQUESTED CONTINUANCE. The court may modify a scheduling order upon a showing of "good cause." Fed. R. Civ. P 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). Good cause supports the requested continuance given the sophisticated technology at issue and the very recent substitution of Netlist's counsel. The claim construction arguments raised by the parties involve complex technical issues and will require a significant degree of expertise by counsel to address. Given DLA Piper's very recent substitution into this case on October 26, 2010 (see Dkt. No. 61), Netlist requests a brief continuance so that its counsel can study the relevant technology, analyze the parties' claims and defenses, and prepare for the Markman hearing. (See Hindman Decl., 3.) Good cause supports the requested continuance. III. NETLIST DILIGENTLY BROUGHT THIS MOTION. In considering a party's motion to modify the scheduling order, the court should consider the diligence of the party seeking the modification. Aristocrat Techs. v. Int'l Game Tech., No. C1 27 28 DLA PIPER LLP (US) S A N DI E G O On October 27, 2010 DLA Piper contacted the Court's calendar clerk and was informed that the Court would be available on March 17, 2011 for a continued claim construction hearing. (See Declaration of Jesse Hindman ("Hindman Decl."), 4.). The parties met and conferred and determined that the suggested alternative date of March 17, 2011 would work for all the parties. (See Hindman Decl., 5, 6.). -1- WEST\222725592.1 UNOPPOSED MOTION TO CONTINUE CLAIM CONSTRUCTION HEARING DATE CASE NO. C 09-05718 SBA [RELATED TO CASE NO. C 08-04144 SBA] 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 DLA PIPER LLP (US) S A N DI E G O 06-03717 RMW, 2010 WL 3060162, at *3 (N.D. Cal. August 3, 2010). DLA Piper has acted diligently in seeking a stipulation from Google and bringing this motion. The day following the substitution (October 27), DLA Piper contacted the Court's calendar clerk and obtained available dates for a continued hearing. (See Hindman Decl., 4.) DLA Piper communicated those dates to Google the very next day. (See Hindman Decl., 5.) On October 29, Google's counsel informed Netlist that consistent with the Court's availability, Google would be amenable to a March 17 hearing. (See Hindman Decl., 6.) Google's counsel also indicated that Google was not opposed to Netlist seeking a continued hearing date. (See Hindman Decl., 6, 7.) Netlist promptly filed this motion. IV. A CONTINUANCE WILL AVOID PREJUDICE TO NETLIST. This case involves sophisticated computer memory module technology. Netlist's new counsel only recently substituted into this case and the requested continuance would provide DLA Piper adequate time to become familiar with the parties' claims and defenses, the evidentiary record and the complex technology at issue. Under the current hearing date, DLA Piper will be forced to gain a significant level of expertise in a very short amount of time resulting in prejudice to Netlist. (See Hindman Decl., 8.) Moreover, because Google does not oppose this motion and is amenable to a March 17, 2011 hearing date, Google will suffer no prejudice if the requested relief is granted. The balance of harm in theses circumstances clearly favors granting the requested continuance. V. THE REQUESTED CONTINUANCE WILL HAVE LITTLE IMPACT ON THE CASE SCHEDULE. Netlist's requested continuance will not delay or adversely affect the case schedule. Claim construction briefing is complete and there are no other outstanding Court deadlines besides the hearing at issue in this motion.2 (See Dkt. Nos. 45, 48, 49, 50.) No trial date has been set and the requested continuance should not impact when the trial date is scheduled. (See Hindman Decl., 10.) Moreover, other than extensions granted during the pleadings stage of this case, the only prior case schedule modification involved the Court vacating a September 9, 2010 A further case management conference is scheduled to take place immediately following the claim construction hearing. (See Dkt. No. 57.) 2 -2- WEST\222725592.1 UNOPPOSED MOTION TO CONTINUE CLAIM CONSTRUCTION HEARING DATE CASE NO. C 09-05718 SBA [RELATED TO CASE NO. C 08-04144 SBA] 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 DLA PIPER LLP (US) S A N DI E G O claim construction hearing date and, pursuant to the parties' stipulation, rescheduling the same for December 8, 2010. (See Hindman Decl., 9; Dkt. No. 57.) In sum, the brief continuance requested by Netlist would have minimal impact on the case schedule. VI. CONCLUSION For these reasons, Netlist respectfully requests that the Court vacate the December 8, 2010 claim construction hearing date and reschedule the hearing for March 17, 2011. Dated: November 5, 2010 DLA PIPER LLP (US) By /s/ Sean C. Cunningham Sean C. Cunningham (Bar No. 174931) John D. Kinton (Bar No. 203250) Jesse Hindman (Bar No. 222935) DLA Piper LLP (US) 401 B Street, Suite 1700 San Diego, CA 92101-4297 Tel: 619.699.2700 Fax: 619.699.2701 John M. Guaragna (Bar No. 199277) 401 Congress Avenue, Suite 2500 Austin, TX 78701-3799 Tel: (512) 457-7125 Fax: (512) 721-2325 Attorneys for Plaintiff NETLIST, INC. -3WEST\222725592.1 UNOPPOSED MOTION TO CONTINUE CLAIM CONSTRUCTION HEARING DATE CASE NO. C 09-05718 SBA [RELATED TO CASE NO. C 08-04144 SBA]

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