Emblaze Ltd. v. Apple Inc.

Filing 124

MOTION to Strike Objection to Reply Evidence, filed by Apple Inc.. Motion Hearing set for 9/11/2012 01:00 PM in Courtroom 1, 4th Floor, Oakland before Hon. Saundra Brown Armstrong. Responses due by 7/31/2012. Replies due by 8/7/2012. (Barrows, Sarah) (Filed on 7/17/2012) Modified on 7/18/2012 (jlm, COURT STAFF).

1
2
3
4
5
6
7
8
9
10
11

KENNETH STEINTHAL (SBN 268655)
[e-mail]
SARAH BARROWS (SBN 253278)
[e-mail]
GREENBERG TRAURIG, LLP
4 Embarcadero Center, Suite 3000
San Francisco, CA 94111-5983
Telephone: [phone]
Facsimile: [phone]
James J. DeCarlo (Admitted Pro Hac Vice)
[e-mail]
Michael A. Nicodema (Admitted Pro Hac Vice)
[e-mail]
GREENBERG TRAURIG, LLP
MetLife Building
200 Park Avenue, 34th Floor
New York, New York 10166
Tel.: [phone]
Fax: [phone]

12
13

Attorneys for Defendant,
Apple Inc.

14
UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17
18
19

EMBLAZE LTD.,

20

Plaintiff;

21

v.

22

APPLE INC., a California Corporation,
Defendant.

23

CASE NO.

4:11-CV-01079 SBA

MOTION TO STRIKE EMBLAZE’S
OBJECTION TO REPLY EVIDENCE
SUBMITTED BY APPLE IN CONNECTION
WITH MOTION TO DISMISS FIRST
AMENDED COMPLAINT
HON. SAUNDRA BROWN ARMSTRONG

24

Hearing Date: September 11, 20121
Time: 1:00 p.m.

25
26
27
28

1

A hearing date is set pursuant to Civil L.R. 7-2(b)(1), but Apple does not believe a hearing is necessary as this Motion
To Strike relates to Apple’s Motion To Dismiss Emblaze’s First Amended Complaint, set to be heard on July 17, 2012
but now being decided on the papers.

MOTION TO STRIKE EMBLAZE’S
OBJECTION TO REPLY EVIDENCE

-1-

CASE NO. 4:11-CV-01079 SBA

1

Defendant Apple Inc. (“Apple”) by its attorneys, hereby makes this Motion to Strike with

2

the accompanying Proposed Order to strike Emblaze’s Objection to Reply Evidence Submitted By

3

Apple In Connection with Motion to Dismiss First Amended Complaint (“Emblaze Objection” or

4

“Emblaze’s Objection to Reply Evidence “) [D.E. 122].

5
6

I.
A.

7

EMBLAZE’S OBJECTION IS AN IMPERMISSIBLE SUR-REPLY THAT
VIOLATES CIVIL LOCAL RULE 7-3

8

Civil L.R. 7-3(d) mandates that no additional memoranda, papers or letters may be filed once

9

a Reply is filed without prior Court approval. Emblaze’s Objection to Reply Evidence does not

10

object to “new evidence” submitted by Apple’s Reply Brief [D.E. 116], but is instead a thinly veiled

11

attempt at a sur-reply that plainly violates Civil L.R. 7-3(d). The “new evidence” Emblaze purports

12

to object to is not “evidence” at all, but rather a quotation in Apple’s Reply from Emblaze’s own

13

Opposition to Apple’s Motion to Dismiss the First Amended Complaint (“Emblaze Opp.”). The

14

quote is a stark admission that Emblaze’s infringement contentions do not accuse Apple’s devices of

15

direct infringement. Reply Brief [D.E. 116] at 2, 4. Apple’s statement regarding the quotation is

16

not “evidence” and is not wrong, as Emblaze contends. Emblaze Objection [D.E. 122] at 2.

17

Further, Apple’s statement does not lack foundation -- it comes directly from Emblaze’s own brief.

18

Even putting aside the fact that there is no new “evidence” objected to in the Emblaze

19

Objection, Civil L.R. 7-3(d)(1) strictly forbids “further argument on the motion” and Emblaze

20

clearly runs afoul of this rule by attempting to argue, albeit confusingly, that “[w]hile Emblaze does

21

not accuse Apple’s devices per se of direct infringement, Emblaze does contend that Apple is

22

directly infringing . . . .” Emblaze Objection [D.E. 122] at 2 (emphasis in original). Apple’s Motion

23

to Dismiss and Reply have already addressed the shortcomings of Emblaze’s Infringement

24

Contentions and First Amended Complaint. See e.g., Apple Reply [D.E. 116] at 2, 4, 7. Emblaze’s

25

attempt to set forth further argument to the Court on the pending motion to dismiss should be struck.

26

Finally, Emblaze’s attempt to style its argument as a Civil L.R. 7-3(d)(1) objection to new

27

evidence is belied by its own comment that it “had intended to respond to Apple’s statements at oral

28

arguments” but now submits the purported 7-3(d)(1) motion because the oral argument will not be
MOTION TO STRIKE EMBLAZE’S
OBJECTION TO REPLY EVIDENCE

-2 -

CASE NO. 4:11-CV-01079 SBA

1

held. Emblaze Objection [D.E. 122] at 2. In other words, because this Court determined there was

2

no need for oral argument, Emblaze now seeks a back-door to attempt to submit further written

3

argument on the pending motion.

4

B.

EMBLAZE’S OBJECTION IS UNTIMELY

5

There is no question that in addition to being impermissible, Emblaze’s motion is also

6

untimely under Civil L.R. 7-3(d)(1). Even if Emblaze were challenging new “evidence”, which it is

7

not, objections to new evidence must be filed within seven days of the filing of the Reply brief, or

8

by June 21, 2012 -- instead Emblaze waited nearly a month.

9

Emblaze’s request that the Court waive the deadline requirement of Civil L.R. 7-3(d)(1)

10

should not be granted to allow Emblaze to effectively file a sur-reply on the pending motion to

11

dismiss.

12
13

DATED: July 17, 2012

GREENBERG TRAURIG, LLP

14
15
16

By: ___/s/___________________________
KENNETH STEINTHAL (SBN 268655)
[e-mail]
SARAH BARROWS (SBN 253278)
[e-mail]
GREENBERG TRAURIG, LLP
4 Embarcadero Center, Suite 3000
San Francisco, CA 94111-5983
Telephone: [phone]
Facsimile: [phone]

17
18
19
20
21

James J. DeCarlo (Admitted Pro Hac Vice)
[e-mail]
Michael A. Nicodema (Admitted Pro Hac
Vice)
[e-mail]
GREENBERG TRAURIG, LLP
MetLife Building
200 Park Avenue, 34th Floor
New York, New York 10166
Tel.: [phone]
Fax: [phone]

22
23
24
25
26
27

Attorneys for Defendant Apple Inc.

28
MOTION TO STRIKE EMBLAZE’S
OBJECTION TO REPLY EVIDENCE

-3 -

CASE NO. 4:11-CV-01079 SBA