Voter Verified, Inc. v. Election Systems & Software, Inc.

Filing 192

ORDER granting 189 Unopposed Motion to Remove Case From Trial Docket and Cancel Pretrial Conference; denying as moot 173 Motion to consolidate cases; denying as moot 174 Motion to modify; denying as moot 176 Motion to quash; denying as moot 177 Motion to strike ; denying as moot 178 Motion in limine; denying as moot 176 Motion for extension of time to file; denying as moot 176 Motion to continue; denying as moot 177 Motion for sanctions; denying as moot 180 Motion to disqualify;. Signed by Senior Judge Patricia C. Fawsett on 8/8/2011. (KMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
VOTER VERIFIED, INC.,
Plaintiff,
-vs-

Case No. 6:09-cv-1969-Orl-19KRS

ELECTION SYSTEM & SOFTWARE,
INC.,
Defendant.
______________________________________

ORDER
This case comes before the Court on the Unopposed Plaintiff’s Motion to Remove Case From
Trial Docket and Cancel Pretrial Conference by Voter Verified, Inc. (Doc. No. 189, filed Aug. 5,
2011.) In the Unopposed Motion, Voter Verified, Inc. (“VVI”) requests that the Court cancel the
pretrial conference schedule for August 12, 2011, and remove the present case from its September
2011 trial calendar. VVI represents in such Motion that Defendant does not oppose the relief sought.
On July 28, 2011, the Court entered an Order granting summary judgment in favor of Election
System & Software, Inc. (“ES&S”) on the issue of noninfringement of claims 1-48, 50-55, 57-84, and
86-92 of United States Patent No. RE40,449 (“the ‘449 patent”). (Doc. No. 184.) On July 29, 2011,
the Court entered an Order denying VVI’s Third Motion for Summary Judgment and dismissing
without prejudice ES&S’s invalidity counterclaim with respect to claims 85 and 93 of the ‘449

patent.1 (Doc. No. 185.) In light of these findings and the Court’s previous rulings, there are no
issues remaining for trial at this juncture. Accordingly, VVI’s Unopposed Motion will be granted.
Conclusion
Based on the foregoing, the Unopposed Plaintiff’s Motion to Remove Case From Trial Docket
and Cancel Pretrial Conference (Doc. No. 189, filed Aug. 5, 2011) is GRANTED. In light of this
finding, the following motions are DENIED as moot:
1.

Defendants’ Motion to Consolidate Cases for Trial and Incorporated Memorandum of
Law by Premier Election Solutions, Inc. and Diebold, Incorporated (Doc. No. 173,
filed July 13, 2011);

2.

Defendants’ Motion to Advance Date for Submission for Joint Final Pretrial Statement
and Incorporated Memorandum of Law by Premier Election Solutions, Inc. and
Diebold, Incorporated (Doc. No. 174, filed July 13, 2011);

3.

Defendants’ Motion to Quash Subpoenas Duces Tecum for Trial; Alternative Motion
for Extension of Time to File a Motion for Protective Order or Motion for
Continuance and Incorporated Memorandum of Law by Premier Election Solutions,
Inc. and Diebold, Incorporated (Doc. No. 176, filed July 22, 2011);

1

ES&S has not objected to the Court’s dismissal of the invalidity counterclaims. Instead, both
ES&S represented to the Court that it “agree[s] with the Court’s exercise of its discretion to dismiss
the pending unresolved claims as moot.” (Doc. No. 190 at 11, filed Aug. 5, 2011.) In addition Voter
Verified, Inc. has represented that ES&S concurs in its request to remove the case from the trial
docket and cancel the final pretrial conference, thus further indicating that ES&S does not oppose the
dismissal of the invalidity counterclaims.
-2-

4.

Defendants’ Motion to Strike Plaintiff’s Late-Served Supplement to Rule 26(a)(1)
Disclosures and for Sanctions; and Incorporated Memorandum of Law by Premier
Election Solutions, Inc. and Diebold, Incorporated (Doc. No. 177, filed July 22, 2011);

5.

Defendants’ First Motion in Limine and Incorporated Memorandum of Law by
Premier Election Solutions, Inc. and Diebold, Incorporated (Doc. No. 178, filed July
13, 2011); and

6.

Defendants’ Renewed Motion to Disqualify Anthony Provitola From Serving as Trial
Counsel and Incorporated Memorandum of Law by Premier Election Solutions, Inc.
and Diebold, Incorporated (Doc. No. 180, filed July 25, 2011).

DONE and ORDERED in Orlando, Florida on August 8, 2011.

Copies furnished to:
Counsel of Record

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