Red Bend Software, Inc. et al v. Google

Filing 67

Assented to MOTION for Leave to File SURREPLY IN SUPPORT OF ITS OPPOSITION TO RED BENDS MOTION FOR A PRELIMINARY INJUNCTION by Google Inc.. (Attachments: # 1 Exhibit A - Surreply, # 2 Exhibit B - Second Manning Declaration, # 3 Exhibit B-38, # 4 Exhibit B-39, # 5 Exhibit B-40, # 6 Exhibit B-41, # 7 Exhibit B-42)(Magee, David)

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

RED BEND LTD. and RED BEND SOFTWARE INC., Plaintiffs, v. GOOGLE INC., Defendant. GOOGLE INC., Counterclaim-Plaintiff, v. RED BEND LTD. and RED BEND SOFTWARE INC., Counterclaim-Defendants. GOOGLE'S ASSENTED-TO MOTION FOR LEAVE TO FILE SURREPLY IN SUPPORT OF ITS OPPOSITION TO RED BEND'S MOTION FOR A PRELIMINARY INJUNCTION I. INTRODUCTION Defendant Google Inc. hereby moves pursuant to Local Rule 7.1(B)(3), for leave to file a surreply memorandum to address the many new theories, declarants, and evidence offered for the first time by Red Bend in its Reply In Support Of Its Motion For A Preliminary Injunction Enjoining Google's Infringement (Docket Nos. 58 and 62) and supporting papers (Docket Nos. 59-61 and 63-65) (collectively, the "Reply"). Granting Google's motion will further focus the issues and permit Google the opportunity to confront the new evidence and arguments from Red Bend so that the Court may decide the preliminary injunction motion on the merits. Red Bend assents to this motion. CIVIL ACTION NO. 09-cv-11813

A/73344320.2/3005005-0000343244

In further support of its motion, Google submits as follows: II. STATEMENT OF FACTS Red Bend filed the Complaint against Google on October 26, 2009, three and a half months after learning of and beginning to study the Courgette open source code it accuses of infringing. (Docket no. 6). On November 17, 2009, Red Bend served the Complaint, and on the same day filed a motion for a preliminary injunction ( the "Preliminary Injunction Motion"), (Docket No. 8), supported by the conclusory declarations of Yoram Salinger, Red Bend's President and Chief Executive Officer, and Dr. Stephen Edwards, Red Bend's hired technical expert (collectively, the "Declarants") (Docket No. 9). Red Bend's Motion seeks the extreme order of shutting down Google's security, feature and functionality updating technology for Google's Chrome web browser used by millions of internet users, requiring Google to take down the published open source code, and to publish a statement regarding Red Bend's purported patent rights. The Court initially set a briefing schedule whereby Google's opposition brief to the Preliminary Injunction Motion was due by January 25, 2010, Red Bend's reply brief was due by February 5, 2010 and a hearing on the Motion was to be held on January 25, 2010. (December 2, 2009 Electronic Clerk's Notes). The Court modified the schedule on January 19, 2010, in light of Red Bend's refusal to make its declarants available for deposition and in response to Google's Emergency Motion to Compel Depositions or in the Alternative Strike Depositions of Yoram Salinger and Stephen Edwards and/or Preclude Reply Briefing. (Doc. No. 31.) Google timely filed its opposition brief on March 1, 2010, and Red Bend replied on March 24, 2010. A hearing on the Preliminary Injunction Motion is to be held on April 14, 2010. (January 19, 2010 Electronic Clerk's Notes.) Red Bend's Reply contained several new theories, as well as new evidence - including a fifty-one page new declaration from Dr. Stephen Edwards, Red Bend's technical expert, and a declaration from Red Bend's new damages expert, Terry H. Korn. Red Bend could have, but failed to, include this new evidence in its opening papers. Allowing this information to stand

A/73344320.2/3005005-0000343244

-2-

unanswered is inequitable and serves to prejudice Google, particularly given the extraordinary relief of the preliminary injunction that Red Bend seeks. Counsel for the parties conferred on April 8, 2010 regarding the instant motion. Eliot Williams, counsel for Red Bend, indicated that Red Bend would assent to Google's motion seeking leave to file a surreply memorandum. III. GOOGLE SHOULD BE ALLOWED TO FILE A SURREPLY TO ADDRESS NEW ARGUMENTS RAISED BY RED BEND'S REPLY It is well settled in this District that a movant has an affirmative responsibility to include the legal and evidentiary support for a motion in the opening papers, and that arguments made for the first time in an reply brief come too late and need not be addressed. In re Boston Regional Medical Center, Inc., 328 F. Supp. 2d 130, 143 (D. Mass. 2004); see also McCoy v. MIT, 950 F.2d 13, 23 (1st Cir. 1991) ("[T]he plaintiff has an affirmative responsibility to put his best foot forward in an effort to present some legal theory that will support his claim."); cf. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992) ("It is well settled in this court, for good reason which need not be rehearsed here, that a legal argument made for the first time in an appellant's reply brief comes too late and need not be addressed."). Should the Court be inclined to consider Red Bend's new arguments and evidence, good cause exists to allow Google to file the surreply attached hereto as Exhibit A. The surreply is necessary to permit Google an opportunity to fully respond to the new arguments and evidence contained in the Reply as well as correct the numerous factual misstatements by Red Bend in the Reply so that the Court may make a fully informed decision on the merits. As discussed more fully in the attached surreply, each of the arguments raised in Red Bend's Reply is unavailing and does not provide a valid basis for entering a preliminary injunction against Google.

A/73344320.2/3005005-0000343244

-3-

IV.

CONCLUSION Google respectfully requests entry of an order permitting Google to file the surreply

attached hereto as Exhibit A. Respectfully Submitted, Dated: April 8, 2010 Google Inc., By its attorneys, /s/ David M. Magee . Jonathan M. Albano, Bar No. 013850 [e-mail], David M. Magee, Bar No. 652399 [e-mail] BINGHAM McCUTCHEN LLP One Federal Street Boston, MA 02110-1726 Telephone: [phone] Susan Baker Manning (pro hac vice) [e-mail], Robert C. Bertin (pro hac vice) [e-mail] Elizabeth Austern (pro hac vice) [e-mail] BINGHAM McCUTCHEN LLP 2020 K Street, NW Washington, D.C. 20006-1806 Telephone: [phone] William F. Abrams (pro hac vice) [e-mail], BINGHAM McCUTCHEN LLP 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: [phone]

A/73344320.2/3005005-0000343244

-4-

Local Rule 7.1 Certification I hereby certify that counsel to Google Inc. and counsel to the plaintiffs conferred with respect to this motion and that plaintiffs' counsel assent thereto. /s/ David M. Magee David M. Magee Certificate of Service I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants, by federal express, on April 8, 2010. /s/ David M. Magee David M. Magee

A/73344320.2/3005005-0000343244

-5-