Motorola Mobility, Inc. v. Apple, Inc.

Filing 218

AFFIDAVIT signed by : Jill Ho. re 217 Response in Opposition to Motion Declaration of Jill Ho in Support of Apple's Opposition (D.E. 217) by Apple, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Pace, Christopher)

Exhibit A

Case 1:10-cv-23580-UU Document 198 Entered on FLSD Docket 12/06/2011 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No.10-23580-Civ-UU
MOTOROLA MOBILITY, INC.,
Plaintiff,
v.
APPLE INC.,
Defendant.
________________________________________/

ORDER GRANTING MOTION TO STRIKE
THIS CAUSE is before the Court upon the Defendant/Counterplaintiff Apple Inc.’s
(“Apple”) Motion to Strike Motorola’s Supplemental Infringement Contentions (D.E. 178) .
THE COURT has considered the Motion, Motorola’s Response (D.E. 185), and Apple’s
Reply (D.E. 197). Additionally, the Court has considered Motorola’s Motion for Miscellaneous
Relief (D.E. 191), in which it seeks oral argument on the Motion and Apple’s Response (D.E. 196).
The Court has reviewed the pertinent portions of the record, and is otherwise fully advised in the
premises.
Apple moves the Court to strike Motorola’s supplemental infringement contentions (D.E.
164), filed on October 28, 2011. Apple relies on the Court’s Scheduling Order (D.E. 88). In the
Scheduling Ordering, the Court clearly set June 1, 2011, as the deadline for the disclosure of
infringement contentions.
Motorola responds with several unpersuasive arguments. First, it notes that the Scheduling
Order never describes the deadline as a “final” deadline. Here, Motorola rested on a false

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presumption–namely that court-issued deadlines are “preliminary” unless otherwise indicated. The
opposite is the case. Otherwise, the Court would rarely–if ever–have the ability to manage its cases
under Fed. Rule Civ. P. 16. Second, Motorola argues that Apple’s conduct gave Motorola the
impression that the infringement contentions could be supplemented after the June 1, 2011, deadline.
However, under Fed. Rule Civ. P. 16(b)(4), the Court’s consent is necessary to modify a Scheduling
Order. So even if Apple agreed to extend the deadline at issue–which Apple insists it did not (D.E.
197)–the parties would have needed to motion the Court and show “good cause.” Third, Motorola
points for support to the manner in which the parallel Wisconsin litigation between the same parties
has been managed by that district court and to Biax Corp. v. Nvidia Corp., 2011 WL 441470
(February 8, 2011, D. Colo.). Yet in the Wisconsin litigation, as Apple notes in reply, “the Court
never required the parties to exchange element-by-element infringement contentions.” (D.E. 197,
p. 3). Rather the district court in Wisconsin ordered the parties to provide a products’ list that
corresponded with each asserted patent claim. This is not the same as the deadline in the present
case which was embedded in the Scheduling Order. Further, in Biax, the Magistrate Judge
considered whether a party could supplement its infringement contentions “without the benefit of
concrete rules governing the disclosure of infringement contentions in patent cases.” Id., at *5. In
the present case, the Court analyzes the deadline for infringement disclosure in view of the deadlines
set forth in the Scheduling Order. Finally, Motorola claims that maintaining the June 1, 2011,
deadline undermines the logic of the January 17, 2012, discovery deadline, which it contends will
be unaffected if the Court allows the supplementation. It is the logic of Motorola’s argument that
the Court finds wanting. Given that the discovery deadline is only five weeks from now, the more
likely scenario is that Apple will seek additional discovery and a corresponding extension of the
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other deadlines in the Scheduling Order if the supplemental contentions are allowed to stand. The
Court does not find reason to recast discovery as a period when the parties are free to locate new
infringement contentions, potentially delaying for an untold duration the ultimate trial. Furthermore,
if Motorola believed that there was “good cause” to modify the Schedule Order, it could have moved
the Court to do so–a road that Motorola did not take. (See D.E. 185, p. 14).
In sum, Motorola has not presented any arguments that convince the Court to ignore the plain
language of Fed. R. Civ. P. 16, which authorizes a district judge to enter a scheduling order in order
to “expedit[e] disposition of the action” and to “establish[] early and continuing control so that the
case will not be protracted.” Motorola acknowledges the effect of an order striking its supplement
infringement contentions. Such an outcome would cause Motorola “to file an entirely new case
against Apple.” (D.E. 185, p. 16). This hardly strikes the Court as “prejudice,” even if prejudice
were a consideration in enforcing the deadlines contained in the Scheduling Order. Motorola has
already filed several cases against Apple, without any apparent connection between the particular
patent claims asserted in each one. It should go without saying that the filing fees associated with
brining a new action–while a considerable burden to some litigants–are not substantial to a large
Motorola.
Accordingly, it is hereby
ORDERED AND ADJUDGED the Motion (D.E. 178) is GRANTED.
FURTHER ORDERED AND ADJUDGED that Motion (D.E. 191) is DENIED AS MOOT.

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It is

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DONE AND ORDERED in Chambers at Miami, Florida, this _6th__ day of December,
2011.

_____________________________
UNITED STATES DISTRICT JUDGE

copies provided: counsel of record

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