Tokyo Electron Limited v. Spansion, Inc.

Filing 16

ORDER by Judge Whyte denying 11 Ex Parte Application ; denying 13 Ex Parte Application. (rmwlc2, COURT STAFF) (Filed on 2/12/2009)

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On February 6, 2009, plaintiff Tokyo Electron Limited ("TEL") moved to proceed ex parte in their application for a right to attach order against Spansion, Inc. ("Spansion"). On February 10 the court denied the motion, finding that TEL had not showed that grievous harm or irreparable injury would occur if Spansion were given notice. TEL now moves, again ex parte, to shorten time for the hearing on its right-to-attach order. TEL does not cite any statute, Federal Rule, local rule, or standing order permitting it to proceed ex parte in seeking to shorten time, as required by Local Rule 7-10. Rather, TEL states that it moves, "as invited by the Court in its Order of February [10], 2009, on a Ex Parte basis, for an Order Shortening Time for an immediate hearing before this Court . . . ." The court did not intend, in its February 10, 2009 order, to invite an ex parte motion to shorten time. Rather, the court was emphasizing that TEL could seek an accelerated schedule while giving Spansion notice. Under Local Rule 63(b), a motion to shorten time must be served on all parties. v. SPANSION, INC., Defendants. TOKYO ELECTRON LIMITED, Plaintiff, No. C-09-00502 RMW ORDER DENYING MOTION TO PROCEED EX PARTE [Re Docket No. 11,13] IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION E-FILED on 02/12/09 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 With its motion to shorten time, TEL files an additional press release and some financial analysis documents prepared by TEL, both of which seem to support TEL's claim that Spansion is having financial difficulties. But the existence of those financial difficulties do not justify the relief TEL requests: the scheduling of a hearing and the order that a $44,550,025.00 bond be deposited with the court, all before Spansion has an opportunity to appear. The court would consider setting a hearing on very short notice but believes Spansion is entitled to notice absent some evidence of an intent to secrete assets. DATED: 02/12/09 RONALD M. WHYTE United States District Judge 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Notice of this document has been electronically sent to: Counsel for Plaintiff: Daniel J. Herling Counsel for Defendants: No appearance filed. Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. herling@khlaw.com Dated: 02/12/09 JAS Chambers of Judge Whyte 3

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