Cellectricon AB et al v. Fluxion Biosciences, Inc.

Filing 153

JOINT STIPULATION AND ORDER 152 Regarding Severance of Case. Signed by Judge Ronald M. Whyte on 6/23/11. (jg, COURT STAFF) (Filed on 6/23/2011)

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1 2 3 4 5 6 7 8 9 10 11 David G. Conlin (Pro Hac Vice) dconlin@eapdlaw.com George W. Neuner (Pro Hac Vice) gneuner@eapdlaw.com Brian M. Gaff (SBN 202896) bgaff@eapdlaw.com EDWARDS ANGELL PALMER & DODGE LLP 111 Huntington Avenue Boston, MA 02199-7613 Telephone No.: 617-239-0100 Fax No.: 617-227-4420 Eric L. Wesenberg (SBN 139696) ewesenberg@perkinscoie.com Kenneth J. Halpern (SBN 187663) khalpern@perkinscoie.com Kaycie L. Wall (SBN 226027) kwall@perkinscoie.com PERKINS COIE LLP 3150 Porter Drive Palo Alto, CA 94304 Telephone: 650-838-4300 Facsimile: 650-838-4350 Neil A. Smith (Cal. Bar No. 63777) nsmith@rmkb.com ROPERS, MAJESKI, KOHN, & BENTLEY P.C. 50 W. San Fernando Street, Suite 1400 San Jose, CA 95113-2431 Telephone No.: 408-287-6262 Fax No.: 408-918-4501 Jeffrey S. Love (SBN 195068) jeffrey.love@klarquist.com Deakin T. Lauer (Admitted Pro Hac Vice) deakin.lauer@klarquist.com Salumeh R. Loesch (Admitted Pro Hac Vice) salumeh.loesch@klarquist.com KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, OR 97204-2988 Telephone: 503-595-5300 Facsimile: 503-595-5301 Attorneys for Plaintiffs Cellectricon AB and Gyros AB Attorneys for Defendant Fluxion Biosciences, Inc. 12 13 14 15 *E-FILED - 6/23/11* 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 SAN JOSE DIVISION 19 20 CELLECTRICON AB and GYROS AB, Civil Action No. 5:09-cv-03150-RMW Plaintiffs, 21 22 v. 23 JOINT STIPULATION AND [] ORDER REGARDING SEVERANCE OF CASE FLUXION BIOSCIENCES, INC., 24 Defendant. Honorable Ronald M. Whyte United States District Judge 25 26 27 28 Civil Action No. 5:09-cv-03150-RMW 1 JOINT STIPULATION AND [] ORDER REGARDING SEVERANCE OF CASE 1 Plaintiffs Cellectricon AB and Gyros AB (“Plaintiffs”) and Defendant Fluxion Biosciences, 2 Inc. (“Defendant”) (collectively, “the Parties”), by and through their counsel of record, represent 3 and stipulate the following: 4 WHEREAS on April 25, 2011 the Court issued an order (Doc. No. 151) (“Order”) 5 (i) granting in part and denying in part Plaintiffs’ motion to lift the temporary stay, and 6 (ii) granting Defendant’s motion to sever a portion of the instant action; 7 8 WHEREAS the Parties have discussed the procedure to comply with the Order and, on June 9, 2011, conferred with the Court regarding that procedure; 9 WHEREAS the Parties have agreed, and the Court has approved that, in compliance with 10 the Order, Plaintiff Cellectricon, as the assignee of U.S. Patent No. 5,376,252, will file a new 11 complaint against Defendant Fluxion directed to Cellectricon’s allegations of any infringement of 12 that patent, and that the Court will open a new civil action with a new case number in connection 13 with that complaint, with the new civil action designated as “related” to the instant action so as to 14 be heard before the Honorable Ronald M. Whyte in San Jose; 15 WHEREAS because the new civil action will represent a severed portion of the instant 16 action, Plaintiff Cellectricon would like the new civil action is to proceed seamlessly and without 17 unnecessary delay from the point where the instant action currently stands; 18 WHEREAS Defendant’s counsel of record agrees to accept service of the new complaint 19 on behalf of Defendant Fluxion, that Fluxion shall answer or otherwise respond to the new 20 complaint within twenty-one (21) days after service, and that Fluxion shall be permitted to present 21 any defense in its answer or response that it would be entitled to present pursuant to Fed. R. Civ. P. 22 12, notwithstanding Fluxion’s filings of responsive pleadings in the instant action; 23 WHEREAS all discovery and submissions in the instant action including, without 24 limitation, all information and materials exchanged by the Parties pursuant to the Patent Local 25 Rules, can be used in the new civil action, except that Cellectricon shall have the opportunity to 26 serve Amended Infringement Contentions and additional associated documents pursuant to Patent 27 L.R. 3-1 and 3-2 so as to be received by Fluxion’s counsel on or before June 20, 2011, and Fluxion 28 shall have the opportunity to serve Amended Invalidity Contentions and additional associated Civil Action No. 5:09-cv-03150-RMW 2 JOINT STIPULATION AND [] ORDER REGARDING SEVERANCE OF CASE 1 documents pursuant to Patent L.R. 3-3 and 3-4 so as to be received by Cellectricon’s counsel on or 2 before July 11, 2011; 3 WHEREAS discovery relevant to the issues in the new civil action may begin upon filing 4 of the new civil action and the assignment of the corresponding new case number and that such 5 discovery can be used in the instant action; 6 WHEREAS Plaintiff Gyros AB will be amenable to discovery in the new civil action as if 7 it were a party thereto and it will produce one Gyros AB employee pursuant to Rule 30(b)(1) and 8 one Gyros AB employee pursuant to Rule 30(b)(6) as witnesses for a deposition at the law offices 9 of Perkins Coie in Palo Alto, California, but Gyros AB’s status as a third-party in the new civil 10 action shall not limit its ability to raise any objections to discovery therein as if it were a party 11 thereto; 12 WHEREAS the Parties will submit a joint proposed scheduling order for the new civil 13 action on or before July 22, 2011, such that any disagreements as to the terms therein may be 14 discussed with and resolved by the Court during the status conference in the instant action that is 15 currently scheduled for July 29, 2011 at 10:30 a.m.; 16 WHEREAS upon partial or complete lifting of the temporary stay in the instant action, 17 Plaintiffs will file an amended complaint in the instant action that omits the allegations of any 18 infringement of U.S. Patent No. 5,376,252 against Fluxion and, because Gyros AB has no 19 ownership interest in the patents remaining in the instant action (U.S. Pat. Nos. 7,470,518; 20 7,390,650; and 7,563,614), removes Gyros AB as Co-Plaintiff, thereby dismissing Gyros AB from 21 the instant action; and 22 WHEREAS the Parties agree that the severance of a portion of the instant action and filing 23 of the new civil action does not preclude the Court from lifting or maintaining the stay in the 24 instant action. 25 /// 26 /// 27 /// 28 /// Civil Action No. 5:09-cv-03150-RMW 3 JOINT STIPULATION AND [] ORDER REGARDING SEVERANCE OF CASE 1 NOW, THEREFORE, the Parties hereby Stipulate and agree that the following Order 2 should enter, and respectfully request that the Court approve this Stipulation as an Order of the 3 Court: 4 5 6 1. That Plaintiff Cellectricon will file a new complaint against Defendant Fluxion directed to Cellectricon’s allegations of any infringement of U.S. Patent No. 5,376,252; 2. That the Court will open a new civil action with a new case number in connection 7 with that complaint, with the new civil action designated as “related” to the instant action so as to 8 be heard before the Honorable Ronald M. Whyte in San Jose; 9 3. That Defendant’s counsel of record shall accept service of the new complaint on 10 behalf of Defendant Fluxion and, within twenty-one (21) days after service shall answer or 11 otherwise respond to the new complaint, and shall be permitted to present any defense in its 12 answer or response that it would be entitled to present pursuant to Fed. R. Civ. P. 12, 13 notwithstanding Fluxion’s filings of responsive pleadings in the instant action; 14 4. That all discovery and submissions in the instant action including, without 15 limitation, all information and materials exchanged by the Parties pursuant to the Patent Local 16 Rules, can be used in the new civil action; 17 5. That Cellectricon shall have the opportunity to serve Amended Infringement 18 Contentions and additional associated documents pursuant to Patent L.R. 3-1 and 3-2 so as to be 19 received by Fluxion’s counsel on or before June 20, 2011, and Fluxion shall have the opportunity 20 to serve Amended Invalidity Contentions and additional associated documents pursuant to Patent 21 L.R. 3-3 and 3-4 so as to be received by Cellectricon’s counsel on or before July 11, 2011; 22 6. That discovery relevant to the issues in the new civil action may begin upon filing 23 of the new civil action and the assignment of the corresponding new case number and that such 24 discovery can be used in the instant action; 25 7. That Plaintiff Gyros AB will be amenable to discovery in the new civil action as if 26 it were a party thereto and it will produce one Gyros AB employee pursuant to Rule 30(b)(1) and 27 one Gyros AB employee pursuant to Rule 30(b)(6) as witnesses for a deposition at the law offices 28 of Perkins Coie in Palo Alto, California, but Gyros AB’s status as a third-party in the new civil Civil Action No. 5:09-cv-03150-RMW 4 JOINT STIPULATION AND [P] ORDER REGARDING SEVERANCE OF CASE 1 action shall not limit its ability to raise any objections to discovery therein as if it were a party 2 thereto; 3 8. That the Parties will submit a joint proposed scheduling order for the new civil 4 action on or before July 22, 2011, such that any disagreements as to the terms therein may be 5 discussed with and resolved by the Court during the status conference in the instant action that is 6 currently scheduled for July 29, 2011 at 10:30 a.m.; and 7 9. That upon partial or complete lifting of the temporary stay in the instant action, 8 Plaintiffs will file an amended complaint in the instant action that omits the allegations of any 9 infringement of U.S. Patent No. 5,376,252 against Fluxion and removes Gyros AB as Co-Plaintiff, 10 11 thereby dismissing Gyros AB from the instant action. IT IS SO STIPULATED. 12 13 Dated: June 17, 2011 David G. Conlin George W. Neuner Brian M. Gaff EDWARDS ANGELL PALMER & DODGE LLP Dated: June 17, 2011 Neil A. Smith ROPERS, MAJESKI, KOHN, & BENTLEY P.C. 14 15 16 17 /s/Brian M. Gaff Attorneys for Plaintiffs Cellectricon AB and Gyros AB 18 19 20 Dated: June 17, 2011 Eric L. Wesenberg Kenneth J. Halpern Kaycie L. Wall PERKINS COIE LLP Dated: June 17, 2011 Jeffrey S. Love Deakin T. Lauer Salumeh R. Loesch KLARQUIST SPARKMAN, LLP 21 22 23 24 25 /s/Eric L. Wesenberg Attorneys for Defendant Fluxion Biosciences, Inc. 26 27 28 Civil Action No. 5:09-cv-03150-RMW 5 JOINT STIPULATION AND [] ORDER REGARDING SEVERANCE OF CASE 1 2 3 [] ORDER Pursuant to Stipulation, IT IS SO ORDERED. 23 Dated: June _____, 2011 4 5 The Honorable Ronald M. Whyte UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Civil Action No. 5:09-cv-03150-RMW 6 JOINT STIPULATION AND [] ORDER REGARDING SEVERANCE OF CASE

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