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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David G. Conlin (Pro Hac Vice)
[e-mail]
George W. Neuner (Pro Hac Vice)
[e-mail]
Brian M. Gaff (SBN 202896)
[e-mail]
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)
[e-mail]
Kenneth J. Halpern (SBN 187663)
[e-mail]
Kaycie L. Wall (SBN 226027)
[e-mail]
PERKINS COIE LLP
3150 Porter Drive
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: 650-838-4350

Neil A. Smith (Cal. Bar No. 63777)
[e-mail]
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)
[e-mail]
Deakin T. Lauer (Admitted Pro Hac Vice)
[e-mail]
Salumeh R. Loesch (Admitted Pro Hac Vice)
[e-mail]
KLARQUIST SPARKMAN, LLP
121 S.W. Salmon Street, Suite 1600
Portland, OR 97204-2988
Telephone: [phone]
Facsimile: 503-595-5301

Attorneys for Plaintiffs Cellectricon AB and
Gyros AB

Attorneys for Defendant Fluxion Biosciences,
Inc.

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*E-FILED - 6/23/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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CELLECTRICON AB and GYROS AB,

Civil Action No. 5:09-cv-03150-RMW

Plaintiffs,

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v.

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JOINT STIPULATION AND
[] ORDER REGARDING
SEVERANCE OF CASE

FLUXION BIOSCIENCES, INC.,

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Defendant.

Honorable Ronald M. Whyte
United States District Judge

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Civil Action No. 5:09-cv-03150-RMW

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JOINT STIPULATION AND []
ORDER REGARDING SEVERANCE OF CASE

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Plaintiffs Cellectricon AB and Gyros AB (“Plaintiffs”) and Defendant Fluxion Biosciences,

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Inc. (“Defendant”) (collectively, “the Parties”), by and through their counsel of record, represent

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and stipulate the following:

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WHEREAS on April 25, 2011 the Court issued an order (Doc. No. 151) (“Order”)

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(i) granting in part and denying in part Plaintiffs’ motion to lift the temporary stay, and

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(ii) granting Defendant’s motion to sever a portion of the instant action;

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WHEREAS the Parties have discussed the procedure to comply with the Order and, on
June 9, 2011, conferred with the Court regarding that procedure;

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WHEREAS the Parties have agreed, and the Court has approved that, in compliance with

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the Order, Plaintiff Cellectricon, as the assignee of U.S. Patent No. 5,376,252, will file a new

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complaint against Defendant Fluxion directed to Cellectricon’s allegations of any infringement of

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that patent, and that the Court will open a new civil action with a new case number in connection

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with that complaint, with the new civil action designated as “related” to the instant action so as to

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be heard before the Honorable Ronald M. Whyte in San Jose;

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WHEREAS because the new civil action will represent a severed portion of the instant

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action, Plaintiff Cellectricon would like the new civil action is to proceed seamlessly and without

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unnecessary delay from the point where the instant action currently stands;

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WHEREAS Defendant’s counsel of record agrees to accept service of the new complaint

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on behalf of Defendant Fluxion, that Fluxion shall answer or otherwise respond to the new

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complaint within twenty-one (21) days after service, and that Fluxion shall be permitted to present

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any defense in its answer or response that it would be entitled to present pursuant to Fed. R. Civ. P.

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12, notwithstanding Fluxion’s filings of responsive pleadings in the instant action;

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WHEREAS all discovery and submissions in the instant action including, without

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limitation, all information and materials exchanged by the Parties pursuant to the Patent Local

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Rules, can be used in the new civil action, except that Cellectricon shall have the opportunity to

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serve Amended Infringement Contentions and additional associated documents pursuant to Patent

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L.R. 3-1 and 3-2 so as to be received by Fluxion’s counsel on or before June 20, 2011, and Fluxion

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shall have the opportunity to serve Amended Invalidity Contentions and additional associated
Civil Action No. 5:09-cv-03150-RMW

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JOINT STIPULATION AND []
ORDER REGARDING SEVERANCE OF CASE

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documents pursuant to Patent L.R. 3-3 and 3-4 so as to be received by Cellectricon’s counsel on or

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before July 11, 2011;

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WHEREAS discovery relevant to the issues in the new civil action may begin upon filing

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of the new civil action and the assignment of the corresponding new case number and that such

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discovery can be used in the instant action;

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WHEREAS Plaintiff Gyros AB will be amenable to discovery in the new civil action as if

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it were a party thereto and it will produce one Gyros AB employee pursuant to Rule 30(b)(1) and

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one Gyros AB employee pursuant to Rule 30(b)(6) as witnesses for a deposition at the law offices

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of Perkins Coie in Palo Alto, California, but Gyros AB’s status as a third-party in the new civil

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action shall not limit its ability to raise any objections to discovery therein as if it were a party

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thereto;

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WHEREAS the Parties will submit a joint proposed scheduling order for the new civil

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action on or before July 22, 2011, such that any disagreements as to the terms therein may be

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discussed with and resolved by the Court during the status conference in the instant action that is

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currently scheduled for July 29, 2011 at 10:30 a.m.;

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WHEREAS upon partial or complete lifting of the temporary stay in the instant action,

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Plaintiffs will file an amended complaint in the instant action that omits the allegations of any

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infringement of U.S. Patent No. 5,376,252 against Fluxion and, because Gyros AB has no

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ownership interest in the patents remaining in the instant action (U.S. Pat. Nos. 7,470,518;

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7,390,650; and 7,563,614), removes Gyros AB as Co-Plaintiff, thereby dismissing Gyros AB from

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the instant action; and

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WHEREAS the Parties agree that the severance of a portion of the instant action and filing

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of the new civil action does not preclude the Court from lifting or maintaining the stay in the

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instant action.

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Civil Action No. 5:09-cv-03150-RMW

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JOINT STIPULATION AND []
ORDER REGARDING SEVERANCE OF CASE

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NOW, THEREFORE, the Parties hereby Stipulate and agree that the following Order

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should enter, and respectfully request that the Court approve this Stipulation as an Order of the

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Court:

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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;
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That the Court will open a new civil action with a new case number in connection

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with that complaint, with the new civil action designated as “related” to the instant action so as to

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be heard before the Honorable Ronald M. Whyte in San Jose;

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3.

That Defendant’s counsel of record shall accept service of the new complaint on

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behalf of Defendant Fluxion and, within twenty-one (21) days after service shall answer or

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otherwise respond to the new complaint, and shall be permitted to present any defense in its

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answer or response that it would be entitled to present pursuant to Fed. R. Civ. P. 12,

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notwithstanding Fluxion’s filings of responsive pleadings in the instant action;

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4.

That all discovery and submissions in the instant action including, without

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limitation, all information and materials exchanged by the Parties pursuant to the Patent Local

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Rules, can be used in the new civil action;

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5.

That Cellectricon shall have the opportunity to serve Amended Infringement

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Contentions and additional associated documents pursuant to Patent L.R. 3-1 and 3-2 so as to be

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received by Fluxion’s counsel on or before June 20, 2011, and Fluxion shall have the opportunity

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to serve Amended Invalidity Contentions and additional associated documents pursuant to Patent

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L.R. 3-3 and 3-4 so as to be received by Cellectricon’s counsel on or before July 11, 2011;

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6.

That discovery relevant to the issues in the new civil action may begin upon filing

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of the new civil action and the assignment of the corresponding new case number and that such

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discovery can be used in the instant action;

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That Plaintiff Gyros AB will be amenable to discovery in the new civil action as if

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it were a party thereto and it will produce one Gyros AB employee pursuant to Rule 30(b)(1) and

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one Gyros AB employee pursuant to Rule 30(b)(6) as witnesses for a deposition at the law offices

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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

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JOINT STIPULATION AND [P]
ORDER REGARDING SEVERANCE OF CASE

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action shall not limit its ability to raise any objections to discovery therein as if it were a party

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thereto;

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That the Parties will submit a joint proposed scheduling order for the new civil

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action on or before July 22, 2011, such that any disagreements as to the terms therein may be

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discussed with and resolved by the Court during the status conference in the instant action that is

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currently scheduled for July 29, 2011 at 10:30 a.m.; and

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That upon partial or complete lifting of the temporary stay in the instant action,

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Plaintiffs will file an amended complaint in the instant action that omits the allegations of any

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infringement of U.S. Patent No. 5,376,252 against Fluxion and removes Gyros AB as Co-Plaintiff,

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thereby dismissing Gyros AB from the instant action.
IT IS SO STIPULATED.

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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.

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/s/Brian M. Gaff
Attorneys for Plaintiffs Cellectricon AB and Gyros AB

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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

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/s/Eric L. Wesenberg
Attorneys for Defendant Fluxion Biosciences, Inc.

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Civil Action No. 5:09-cv-03150-RMW

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JOINT STIPULATION AND []
ORDER REGARDING SEVERANCE OF CASE

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[] ORDER
Pursuant to Stipulation, IT IS SO ORDERED.
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Dated: June _____, 2011

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The Honorable Ronald M. Whyte
UNITED STATES DISTRICT JUDGE

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Civil Action No. 5:09-cv-03150-RMW

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JOINT STIPULATION AND []
ORDER REGARDING SEVERANCE OF CASE