Zomm, LLC v. Apple Inc.

Filing 43

ORDER by Judge Haywood S. Gilliam, Jr. Denying 39 Stipulation Permitting Motion to Dismiss Briefs to Exceed Page Limits. (ndrS, COURT STAFF) (Filed on 11/7/2018)

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DAVID R. EBERHART (S.B. #195474)
[e-mail]
LUANN L. SIMMONS (S.B. #203526)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28ᵗʰ Floor
San Francisco, California 94111-3823
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ZOMM, INC.,
Plaintiff,

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Case No. 4:18-cv-04969-HSG

v.
APPLE INC.,
Defendant.

STIPULATION AND [PROPOSED]
ORDER PERMITTING MOTION TO
DISMISS BRIEFS TO EXCEED PAGE
LIMITS
Judge:

Haywood S. Gilliam, Jr.

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STIPULATION RE PAGE LIMITS
Case No. 4:18-cv-04969-HSG

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Pursuant to Civil L.R. 7-11 and 7-12, Plaintiff Zomm, Inc. (“Zomm”) and Defendant

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Apple Inc. (“Apple”) (collectively “the Parties”) hereby stipulate and request that the Parties be

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permitted to file briefs regarding Apple’s motion to dismiss in excess of the applicable page

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limits.

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WHEREAS Apple’s response to Zomm’s Amended Complaint is currently due on or
before December 3, 2018;
WHEREAS Apple intends to move under Federal Rule of Civil Procedure 12(b)(6) to

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dismiss for failure to state a claim each of the three causes of action asserted in Zomm’s

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Amended Complaint, specifically the first cause of action for alleged patent infringement, the

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second cause of action for alleged breach of contract, and the third cause of action for alleged

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unfair competition under California common law;

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WHEREAS Apple’s motion will address several complex issues including patent subject

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matter eligibility under 35 U.S.C. § 101, pleading requirements for both breach of contract and

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unfair competition claims, and federal and state preemption and supersession of unfair

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competition claims; and

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WHEREAS the Parties agree that due to the complexity of the issues and number of

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causes of action to be addressed by Apple’s motion, the Parties should be permitted to exceed the

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page limits for the opening and responsive briefs by ten pages and the reply brief by five pages.

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It is hereby STIPULATED AND AGREED, by and between the Parties, subject to the
approval of the Court, as follows:
(1)

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than 35 pages of text;
(2)

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Apple is permitted to file a brief in support of its motion to dismiss of not more

Zomm is permitted to file a brief in opposition to Apple’s motion to dismiss of not
more than 35 pages of text; and

(3)

Apple is permitted to file a reply brief in support of its motion to dismiss of not
more than 20 pages of text.

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-2-

STIPULATION RE PAGE LIMITS
Case No. 4:18-cv-04969-HSG

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IT IS SO STIPULATED.

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Dated: November 6, 2018

KELLEY DRYE AND WARREN LLP

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By:

/s/ Michael J. Zinna
Michael J. Zinna
Attorneys for Plaintiff
ZOMM, INC.

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Dated: November 6, 2018

O’MELVENY & MYERS LLP

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By:

/s/ Luann L. Simmons
Luann L. Simmons
Attorneys for Defendant
APPLE INC.

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CERTIFICATE OF SERVICE
I certify that all counsel of record is being served on November 6, 2018, with a copy of
this document via the Court’s CM/ECF system.
/s/ Luann L. Simmons

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Luann L. Simmons

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FILER’S ATTESTATION
Pursuant to Local Rule 5-1(i)(3), I hereby attest that the other signatory listed, on whose
behalf the filing is submitted, concurs in the filing’s content and has authorized the filing.
/s/ Luann L. Simmons

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Luann L. Simmons

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STIPULATION RE PAGE LIMITS
Case No. 4:18-cv-04969-HSG

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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ER

R NIA

illiam J

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D
Haywood S. Gilliam, Jr.
DENIE States District Court Judge
United

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UNIT
ED

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November 7 2018
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Dated: November ____, 2018

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ORDER

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STIPULATION RE PAGE LIMITS
Case No. 4:18-cv-04969-HSG