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).

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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. 2 Dated: August 4, 2011 Respectfully submitted, By: __/s/ Douglas J. Giuliano _______ Edward M. Mullins, Fla. Bar No. 863920 Douglas J. Giuliano, Fla. Bar. No. 15282 Astigarraga Davis Mullins & Grossman, P.A. 701 Brickell Avenue, 16th Floor Miami, FL 33131 Tel.: (305) 372-8282; Fax. (305) 372-8202 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: (212) 596-9000 Facsimile: (212) 596-9090 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: (650) 617-4000 Facsimile: (650) 617-4090 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) 3 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* David T. Pritikin* Douglas I. Lewis* Richard A. Cederoth* Erin E. Kelly* Shubham Mukherjee* Sherry A. Knutson* Stephen C. Carlson* Elizabeth Curtin* Neil H. Wyland* William M. Chang* Michael L. Lisak* Gerald L. Angst* Frank J. Favia, Jr.* Anthony Balkissoon* Tamar B. Kelber* Kathleen L. Holthaus* Sidley Austin LLP One S. Dearborn Chicago, Illinois 60603 Curtis B. Miner Colson Hicks Eidson 255 Alhambra Circle Penthouse Coral Gables, Florida 33134 Jim S. Zeng* Theodore W. Chandler* Sandra S. Fujiyama* Michael C. Lee Paul D. Tripodi, II* Erik J. Carlson* Olivia M. Kim* Christopher G. Wilson* Yongdan Li* Sidley Austin LLP 555 West Fifth Street Los Angeles, California 90013 Aseem S. Gupta* Sidley Austin LLP 555 California Street, Suite 2000 San Francisco, California 94104 David J. Wolfsohn* Woodcock Washburn LLP Cira Centre 2929 Arch Street Philadelphia, Pennsylvania 19104 Brian R. Nester* Sidley Austin LLP 1501 K Street, N.W. 4 Washington, DC 20005 Tung T. Nguyen* Nabeel U. Khan* Dale B. N ixon* Nicole D. Sims Benjamin B. Kelly* Daniel J. Galligan* Sidley Austin LLP 717 North Harwood, Suite 3400 Dallas, Texas 75201 *Admitted pro hac vice Attorneys for Defendant Electronically served via CM/ECF 5

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