Elan Microelectronics Corporation v. Apple, Inc.

Filing 334

RESPONSE (re 330 MOTION for Leave to File [APPLE INC.'S MOTION FOR LEAVE TO SUBMIT A SURREPLY MEMORANDUM IN OPPOSITION TO ELAN MICROELECTRONICS CORPORATION'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INFRINGEMENT OF U.S. PATENT 5,825,352] MOTION for Leave to File [APPLE INC.'S MOTION FOR LEAVE TO SUBMIT A SURREPLY MEMORANDUM IN OPPOSITION TO ELAN MICROELECTRONICS CORPORATION'S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INFRINGEMENT OF U.S. PATENT 5,825,352] ) filed byElan Microelectronics Corporation. (DeBruine, Sean) (Filed on 7/8/2011)

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YITAI HU (SBN 248085)
[e-mail]
SEAN P. DEBRUINE (SBN 168071)
[e-mail]
ELIZABETH H. RADER (SBN 184963)
[e-mail]
JANE HAN BU (SBN 240081)
[e-mail]
JENNIFER LIU (SBN 268990)
[e-mail]
PALANI P. RATHINASAMY (SBN 269852)
[e-mail]
ALSTON & BIRD LLP
275 Middlefield Road, Suite 150
Menlo Park, CA 94025-4008
Telephone:
650-838-2000
Facsimile:
650-838-2001
Attorneys for Plaintiff and Counterdefendant
ELAN MICROELECTRONICS
CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ELAN MICROELECTRONICS
CORPORATION,
v.

Plaintiff,

APPLE, INC.,
Defendant.
AND RELATED COUNTERCLAIMS

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Case No. 09-cv-01531 RS (PSG)
ELAN MICROELECTRONICS
CORPORATION’S OPPOSITION TO
APPLE’S ADMINISTRATIVE MOTION
FOR LEAVE TO SUBMIT A
SURREPLY IN OPPOSITION TO
ELAN’S MOTION FOR PARTIAL
SUMMARY JUDGMENT OF
INFRINGEMENT OF U.S. PATENT
5,825,352
Date: July 14, 2011
Time: 1:30 p.m.
Courtroom 3, 17TH Floor
Judge: Hon. Richard Seeborg

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ELAN’S OPP’N TO APPLE’S ADMIN. MOTION FOR LEAVE

Case No. 09-cv-01531 RS (PSG)

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For the reason set forth below, Elan Microelectronics Inc. (“Elan”) opposes Defendant
Apple Inc.’s (“Apple”) motion for leave to file a Surreply Memorandum In Opposition To Elan’s
Motion For Partial Summary Judgment For The Infringement Of The 5,825,352 Patent (“Apple
Motion for Leave”). Alternatively, if the Court does permit the filing of Apple’s proposed
surreply papers, Elan respectively requests leave to file a limited response to those papers.

I.

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Apple Did Not Comply With Any Aspect Of The Local Rule 7-3(d) In Requesting Its
Motion For Leave To Submit Surreply Objection
Civil Local Rule 7-3(d) only allows supplemental filing when “new evidence has been

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submitted in the reply” and “the opposing party may serve and file within 7 days after the reply is

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filed, an Objection to Reply Evidence, which may not exceed 5 pages of text, stating its objections

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to the new evidence, which may not include further argument on the motion.” Civ. L.R. 7-3(d)

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(emphasis added). Apple did not comply with any of the above requirements. Instead, Apple

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filed the instant motion for leave and an 11-page surreply memorandum and points of authority,

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adding additional arguments, and asked for leave to make those new arguments three weeks after

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Elan filed its Reply. As such, Apple’s Motion for Leave should be denied in its entirety on this

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basis alone. See Johnson v. Northwest Airlines, 2010 U.S. Dist. LEXIS 139808, *7-8 (N.D. Cal.

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2010) (denying party’s motion for leave to file surreply since it is essentially seeking to file

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another opposition to moving party’s motion, and not for purposes permitted under L.R. 7-3(d)).

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Further, Apple’s tactic of waiting three weeks, until there is only one week before the

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hearing, to put forward its extensive new arguments, appears to be a tactic chosen to leave Elan

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little time to object or prepare an adequate response. Accordingly, the Court should deny Apple’s

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motion for surreply.

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II.

Contrary To Apple’s Characterization Elan Did Not Submit Any New Arguments,
New Opinions Nor New Evidence

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Elan’s Reply and evidence submitted in support of the Reply were for purposes of

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addressing and responding to the entirely new claim construction arguments raised in Apple’s own

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Opposition. Nevertheless, Apple, in its L.R. 7-3(d) administrative motion for leave, without any
ELAN’S OPP’N TO APPLE’S ADMIN MOTION FOR LEAVE

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Case No. 09-cv-01531 RS (PSG)

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detailed discussion or legal support, only listed six conclusory bullet points as basis to submit its

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surreply brief. See Apple Motion for Leave at 2. None of the reasons entitles Apple to file an

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additional argumentative Opposition permitted under the Rule.

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Apple’s first bullet point states that Elan’s Reply “[r]elies upon a new, twenty-six page

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expert declaration containing new opinions based on new evidence never cited in Elan’s opening

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brief.” See Apple Motion for Leave at 2. Apple’s second point also states that the Reply “[r]elies

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upon fifteen new exhibits never cited in Elan’s opening brief.” Id. Those statements are

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disingenuous at best. Elan’s expert reply declaration and the 15 exhibits submitted in support of

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the Reply responded to and addressed the arguments raised in Apple’s Opposition and Apple

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expert’s 48-page, 158-paragraph declaration in support of its Opposition, as Elan is permitted to

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do in reply. Contrary to Apple’s assertion, no new arguments or opinions were included in this

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declaration such that Apple can be permitted to submit an objection pursuant to the L.R. 7-3(d), let

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alone a second full argumentative opposition. See Heil Co. v. Curotto Can Co., 2004 U.S. Dist.

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LEXIS 23618, *3 (N.D. Cal. 2004) (denying defendant’s request to file a surreply since plaintiff's

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reply does not raise new arguments but merely responds to arguments made in defendant’s

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opposition).

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Apple’s third bullet point then alleges that Elan somehow “[r]equests that the Court revisit

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a claim construction issue for the first time in a reply brief on summary judgment based on new

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arguments and evidence never presented during the prior claim construction proceedings or even

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in Elan’s opening summary judgment brief.” See Apple Motion for Leave at 2. Again, the record

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is to the contrary. Elan’s Reply merely pointed out that Apple’s position in its Opposition would

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require the Court to revise constructions already agreed to by the parties, to adopt new and

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improper constructions for terms already construed or considered during the claim construction

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proceedings. See Elan Reply at pages 9 to 14. In response to Apple’s previously undisclosed

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claim construction issues raised for the first time in its Opposition, Elan presented its responsive

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arguments and stated in the Reply that “to the extent Court will entertain” these new claim

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construction issues, they may be resolved as a matter of law. See Elan Reply at page 14.

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Therefore, Elan’s Opposition merely addressed Apple’s Opposition and its expert’s declaration

ELAN’S OPP’N TO APPLE’S ADMIN MOTION FOR LEAVE

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Case No. 09-cv-01531 RS (PSG)

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and does not justify Apple filing an additional Opposition.
Apple’s fourth and fifth bullet points are similarly baseless. Apple states that Elan’s Reply

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“[c]ontains a variety of new arguments that are factually and legally erroneous” and that it

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“repeatedly mischaracterizes Apple’s positions” See Apple Motion for Leave at 2. Elan disagrees

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that it mischaracterizes Apple’s positions or that Elan’s Reply brief contains any factually or

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legally erroneous statements. Nonetheless, these justifications by Apple to permit its surreply are

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not recognized bases under any rules or L.R. 7-3(d)) permitting a party to submit a surreply

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memorandum and points of authority. Johnson v. Northwest Airlines, 2010 U.S. Dist. LEXIS at

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*7-8 (denying party’s motion for leave to file surreply since it is essentially seeking to file another

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opposition to moving party’s motion). Surreplies are not permitted merely to provide the

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responding party another opportunity to argue its opposition, which is exactly what Apple is

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attempting here.

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Finally, in Apple’s Motion for Leave it states that on July 5, 2011 “Elan filed another

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supplemental expert declaration containing additional opinions, and relying on another new

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exhibit” as basis to submit its surreply. See Apple Motion for Leave at 2. Apple is wrong again.

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This statement flatly mischaracterized Elan’s supplemental declaration filed on July 5, 2011. As

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clearly set forth in the July 5, 2011 filings, Elan submitted a short 2-page, 3-paragraph

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supplemental declaration and an exhibit to inform the Court and to correct and explain an

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inadvertent mis-statement made in Elan expert’s Reply declaration. See Dkt 323, Supplemental

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Declaration of Robert Dezmelyk ISO Elan Reply at ¶¶ 1-2. Nothing in this July 5, 2011 filing

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contains any new opinions, arguments or evidence to justify Apple’s Motion for Leave.

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Accordingly, Apple has not set forth any permitted bases or good cause to file a surreply in

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its Motion for Leave. This 11-page surreply is nothing but a pretext to get another chance to

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submit an Opposition to Elan’s underlying summary judgment motion which is not permitted

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under any rules. For these reasons, the Court should deny Apple’s Motion for Leave to Submit a

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Surreply in its entirety.

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ELAN’S OPP’N TO APPLE’S ADMIN MOTION FOR LEAVE

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Case No. 09-cv-01531 RS (PSG)

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DATED: July 8, 2011

Respectfully submitted,

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ALSTON & BIRD LLP

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By:

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LEGAL02/32730679v3

/s/ Sean P. DeBruine
Sean P. DeBruine
Attorneys for Plaintiff
ELAN MICROELECTRONICS CORPORATION

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ELAN’S OPP’N TO APPLE’S ADMIN MOTION FOR LEAVE

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Case No. 09-cv-01531 RS (PSG)