Motorola Mobility, Inc. v. Microsoft Corporation

Filing 164

Plaintiff's MOTION for Extension of Time to File Out of Time and Accompanying Memorandum of Law in Support by Motorola Mobility, Inc.. Responses due by 8/22/2011 (Attachments: #1 Affidavit)(Giuliano, Douglas) Modified text on 8/5/2011 (asl).

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:10-cv-24063-MORENO
MOTOROLA MOBILITY, INC.,
Plaintiff / Counterclaim Defendant,
v.
MICROSOFT CORPORATION,
Defendant / Counterclaim Plaintiff.
_________________________

/

PLAINTIFF/COUNTERCLAIM DEFENDANT MOTOROLA
MOBILITY, INC.’S MOTION FOR LEAVE TO FILE OUT OF TIME
AND ACCOMPANYING MEMORANDUM OF LAW IN SUPPORT
Plaintiff/Counterclaim Defendant Motorola Mobility, Inc. (“Motorola”), moves, pursuant to
Federal Rule of Civil Procedure 16, for leave to file its Motion to Exclude the Testimony of Michael
Fagan Regarding Infringement and Accompanying Memorandum of Law (“Motion to Exclude
Fagan”) ten business days from the time set forth in the Court’s scheduling order of July 21, 2011.
(DE 36). (Motorola has moved to file its Motion to Exclude Fagan (under seal) simultaneously with
this motion). Motorola respectfully requests that this Motion be granted for the reasons set forth in
the accompanying memorandum of law.
MEMORNDUM OF LAW
A scheduling order may be modified for “good cause” shown. Fed. R. Civ. P. 16(b)(4). See
Perez v. Miami-Dade County, 297 F.3d 1255, 1263 n.2 (11th Cir. 2002) (district court did not abuse
discretion in allowing party to file pretrial motion 26 days after deadline for same when “good
cause” was shown).
“[I]n the interest of justice and sound judicial administration, an amendment of a pretrial
order should be permitted where no substantial injury will be occasioned to the opposing party, the
refusal to allow the amendment might result in injustice to the movant, and the inconvenience to the
court is slight.” United States v. Varner, 13 F.3d 1503, 1507 (11th Cir.1994) (quoting Sherman v. United
States, 462 F.2d 577, 579 (5th Cir.1972)). Further, the diligence of the moving party should be
considered in determining whether there is good cause to extend a deadline. See Sosa v. Airprint

Systems, Inc., 133 F.3d 1417, 1418 (11th Cir.1998) (“The good cause standard precludes modification
unless the schedule cannot be met despite the diligence of the party seeking the extension.”)
(internal quotations omitted).
Here, Motorola has been diligent in obtaining the evidence it needed to file a substantiated
Motion to Exclude Mr. Fagan. Mr. Fagan is Microsoft Corporation’s (“Microsoft”) only designated
expert with respect to Microsoft’s U.S. Patent No. 7,383,460, which Microsoft accuses Motorola of
infringing in its counter-claims. Despite Motorola’s request to depose Mr. Fagan on or before the
Court’s July 21, 2011 deadline for the filing of Daubert motions (see Affidavit of Stuart Yothers,
attached as Exhibit A), Microsoft informed Motorola that Mr. Fagan would not be available for
deposition until July 22, 2011. Id. at ¶5. On July 20, 2011, Motorola received word from Microsoft
that an issue had arisen concerning the health of Mr. Fagan’s wife; Microsoft sought to postpone the
deposition until July 26, 2011. Id. at ¶7. Given the cause and nature of the request, Motorola
consented. Id. at ¶8.
Mr. Fagan thus was deposed for a full day on July 26, 2011, five days after the deadline to
file, inter alia, Daubert motions. (DE 36). Mr. Fagan’s testimony has brought to light numerous
issues regarding his qualifications and methodologies that were not readily apparent from his Expert
Report on Infringement, which was served on June 24, 2011. Motorola has required the past six
business days to prepare its motion. Motorola does not believe that any prejudice will result to
Microsoft from the brief delay in the filing of this motion and thus requests that it be allowed to file
the Motion to Exclude Fagan out of time briefly. Gevinson v. Unum Life Ins. of Am., No. 6:10-cv-3Orl-19KRS, 2011 WL 767414 (M.D. Fla. Feb. 28, 2011) (extending discovery deadline for 10 weeks
when no prejudice was shown and the parties had worked diligently to meet deadlines).
Finally, the requested extension will not affect the trial deadlines as the request is only ten
business days from the original deadline and thus there should be no inconvenience to the Court.
Varner, 13 F.3d at 1507.
CONCLUSION
Motorola respectfully requests that the Court accept the filing of the Motion to Exclude
Fagan.
CERTIFICATE OF GOOD FAITH CONFERENCE
I hereby certify that in accordance with Local Rule 7.1(a)(3), counsel for Motorola has
conferred with counsel for Microsoft in a good faith effort to resolve the issues raised in this
motion, but that the parties were unable to reach an agreement on these issues.
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Dated: August 4, 2011
Respectfully submitted,
By: __/s/ Douglas J. Giuliano _______
Edward M. Mullins, Fla. Bar No. 863920
[e-mail]
Douglas J. Giuliano, Fla. Bar. No. 15282
Astigarraga Davis Mullins
& Grossman, P.A.
701 Brickell Avenue, 16th Floor
Miami, FL 33131
Tel.: [phone]; Fax. [phone]

Of Counsel:
Jesse J. Jenner
(admitted pro hac vice)
Steven Pepe
(admitted pro hac vice)
Khue Hoang
(admitted pro hac vice)
Ropes & Gray LLP
1211 Avenue of the Americas
New York, NY 10036
Telephone: [phone]
Facsimile: [phone]

Local Counsel for Plaintiff,
MOTOROLA MOBILITY, INC.

Norman H. Beamer
(admitted pro hac vice)
Mark D. Rowland
(admitted pro hac vice)
Gabrielle E. Higgins
(admitted pro hac vice)
Ropes & Gray LLP
1900 University Avenue, 6th Floor
East Palo Alto, CA 94303
Telephone: [phone]
Facsimile: [phone]
Lead Counsel for Plaintiff,
MOTOROLA MOBILITY, INC.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 4, 2011, I electronically filed the foregoing document
with the Clerk of the Court using the CM/ECF filing system. I also certify that the foregoing
document is being served this date on all counsel of record or pro se parties on the Service List
below in the manner specified, either via transmission of Notices of Electronic Filing generated by
the CM/ECF system or; in some other authorized manner for those counsel or parties who are not
authorized to receive electronically Notices of Electronic Filing.
/s/ Edward M. Mullins___________________
Edward M. Mullins (Fla. Bar No. 863920)
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SERVICE LIST
Motorola Mobility, Inc. v. Microsoft Corporation
Case No.: 1:10-CV-24063-MORENO/TORRES
United States District Court, Southern District of Florida
John W. McBride*
[e-mail]
David T. Pritikin*
[e-mail]
Douglas I. Lewis*
[e-mail]
Richard A. Cederoth*
[e-mail]
Erin E. Kelly*
[e-mail]
Shubham Mukherjee*
[e-mail]
Sherry A. Knutson*
[e-mail]
Stephen C. Carlson*
[e-mail]
Elizabeth Curtin*
[e-mail]
Neil H. Wyland*
[e-mail]
William M. Chang*
[e-mail]
Michael L. Lisak*
[e-mail]
Gerald L. Angst*
[e-mail]
Frank J. Favia, Jr.*
[e-mail]
Anthony Balkissoon*
[e-mail]
Tamar B. Kelber*
[e-mail]
Kathleen L. Holthaus*
[e-mail]
Sidley Austin LLP
One S. Dearborn
Chicago, Illinois 60603

Curtis B. Miner
[e-mail]
Colson Hicks Eidson
255 Alhambra Circle
Penthouse
Coral Gables, Florida 33134
Jim S. Zeng*
[e-mail]
Theodore W. Chandler*
[e-mail]
Sandra S. Fujiyama*
[e-mail]
Michael C. Lee
[e-mail]
Paul D. Tripodi, II*
[e-mail]
Erik J. Carlson*
[e-mail]
Olivia M. Kim*
[e-mail]
Christopher G. Wilson*
[e-mail]
Yongdan Li*
[e-mail]
Sidley Austin LLP
555 West Fifth Street
Los Angeles, California 90013
Aseem S. Gupta*
[e-mail]
Sidley Austin LLP
555 California Street, Suite 2000
San Francisco, California 94104
David J. Wolfsohn*
[e-mail]
Woodcock Washburn LLP
Cira Centre
2929 Arch Street
Philadelphia, Pennsylvania 19104

Brian R. Nester*
[e-mail]
Sidley Austin LLP
1501 K Street, N.W.
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Washington, DC 20005
Tung T. Nguyen*
[e-mail]
Nabeel U. Khan*
[e-mail]
Dale B. N ixon*
[e-mail]
Nicole D. Sims
[e-mail]
Benjamin B. Kelly*
[e-mail]
Daniel J. Galligan*
[e-mail]
Sidley Austin LLP
717 North Harwood, Suite 3400
Dallas, Texas 75201
*Admitted pro hac vice

Attorneys for Defendant
Electronically served via CM/ECF

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