Hypermedia Navigation LLC v. Yahoo!, Inc.

Filing 100

ORDER by Judge Haywood S. Gilliam, Jr. Denying 99 Administrative Motion for Leave to File Sur-reply re Docket No. 95 . (ndrS, COURT STAFF) (Filed on 10/17/2017)

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Kris S. LeFan SBN 278611
[e-mail]
LOWE & LEFAN, P.C.
8383 Wilshire Suite #1038
Beverly Hills, CA 90211
Telephone: [phone]
Facsimile: [phone]
Hao Ni (pro hac vice)
[e-mail]
NI, WANG & MASSAND, PLLC
8140 Walnut Hill Lane, Suite 500
Dallas, TX 75231
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
Hypermedia Navigation LLC

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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HYPERMEDIA
LLC,

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NAVIGATION

Plaintiff,
ADMINISTRATIVE MOTION FOR
LEAVE TO FILE SUR-REPLY

v.

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Case No. 4:17-cv-03188-HSG

YAHOO HOLDINGS, INC.,
Defendant.

DATE:
TIME:
C/R:
JUDGE:

Thursday, November 9, 2017
2:00 p.m.
2, 4th Floor
Hon. Haywood S. Gilliam, Jr.

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HYPERMEDIA NAVIGATION LLC’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY
4:17-CV-03188-HSG - PAGE i

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Pursuant to Local Civil Rules 7-11, Plaintiff Hypermedia Navigation, LLC
(“Hypermedia” or “Plaintiff”) hereby submits the following administrative motion

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for an order granting Hypermedia leave to file the sur-reply to Defendant Yahoo
Holdings, Inc.’s (“Yahoo” or “Defendant”) Motion to Dismiss. Hypermedia has
complied with Local Rule 7-11 and sought Defendant’s stipulation to file a surreply. Defendant has not yet confirmed whether it would oppose the Motion and as
such, Plaintiff files the Motion as Opposed.

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I.

INTRODUCTION AND STATEMENT OF RELEVEANT
FACTS

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Yahoo’s Reply Brief adds 8 new case cites and specifically makes new
invalidity arguments based on at least 4 previously undisclosed cases.

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Plaintiff requests leave to file a sur-reply brief to respond to the new arguments
and evidence introduced by Defendant’s reply. Good cause exists to grant
Hypermedia’s request under the circumstances. Defendant filed its Motion to

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Dismiss on September 11, 2017. Its Motion did not raise any of these cases or make
any invalidity arguments based on these cases. Defendant had more than sufficient
ability to do so.

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Defendant had an obligation to come forward with all arguments on which it
intended to rely (and to submit all evidence) in its opening brief, to allow Plaintiff an

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adequate opportunity to respond. Instead of complying with this obligation,
Defendant waited until its Reply brief to raise various new arguments, leaving
HYPERMEDIA NAVIGATION LLC’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY
4:17-CV-03188-HSG - PAGE 1

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Plaintiff with no ability to respond or otherwise defend itself. See II.A below.
Plaintiff should have the opportunity to respond to these allegations, which

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Defendant waited until the last minute to make.
For these reasons, Plaintiff respectfully requests that the Court grant leave to

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file a sur-reply in opposition to Defendant’s Motion to Dismiss. To the extent the
Court is inclined to grant this request, Plaintiff has attached its Sur-Reply in
Opposition to Defendant’s Motion to Dismiss as Exhibit A to this Motion. This Sur-

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Reply is limited to certain evidence and argument that was improperly raised for the
first time in Defendant’s Reply.

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II.

ARGUMENT

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A. In addition to the numerous new cases which could’ve been previously
presented by Yahoo, Yahoo adds new invalidity arguments based on GT
Nexus, Intellectual Ventures I, CyberSource, and Affinity Labs.

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In Yahoo’s Reply, pages 7, 9-11 specifically set forth new invalidity

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arguments based on at least 3 new cases that were not previously discussed in either
the Motion or the Response. Defendant had ample opportunity to make invalidity

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arguments based on these cases in its Motion but did not do so. Plaintiff is requesting
the opportunity to respond to these invalidity arguments which are not comparable
to the Asserted Claims.

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III.

CONCLUSION

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HYPERMEDIA NAVIGATION LLC’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY
4:17-CV-03188-HSG - PAGE 2

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Defendant’s submission of new evidence and new invalidity arguments in its
Reply is improper. Plaintiff therefore requests administrative leave to submit the

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Sur-Reply attached as Exhibit A to this Motion, responding to Defendant’s newly
added invalidity arguments.

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Dated: October 16, 2017

By: /s/ Hao Ni
Hao Ni

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Attorney for Plaintiff Hypermedia
Navigation LLC

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CERTIFICATE OF SERVICE

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I certify that all counsel of record is being served on October 16, 2017, with a copy
of this document via the Court’s CM/ECF system.

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/s/ Hao Ni

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HAO NI

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S
Dated:

10/17/2017

UNIT
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HYPERMEDIA NAVIGATION LLC’S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SUR-REPLY
4:17-CV-03188-HSG - PAGE 3