1st Technology LLC v. IQ-Ludorum, PLC, et al

Filing 44

REPLY to Response to 14 MOTION to Dismiss FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, FOR TRANSFER OF VENUE; filed by Defendant Tiltware LLC. Reply to Plaintiff's Supplemental Opposition (McCue, Michael)

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1st Technology LLC v. IQ-Ludorum, PLC, et al Doc. 44 Case 2:06-cv-00323-LDG-RJJ Document 44 Filed 11/13/2006 Page 1 of 4 1 MICHAEL J. McCUE (Nevada Bar No. 6055) W. WEST ALLEN (Nevada Bar No. 5566) 2 Lewis and Roca LLP 3993 Howard Hughes Pkwy. 3 Suite 600 Las Vegas, NV 89109 4 (702) 949-8200 (702) 949-8398 fax 5 Attorneys for Defendant TILTWARE, LLC 6 7 8 9 10 11 12 1ST TECHNOLOGY LLC, Plaintiff, vs. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:06-cv-323-LDG-RJJ IQ-LUDORUM, PLC, PLAYTECH 13 CYPRUS, LTD., TILTWARE, LLC, and KOLYMA CORPORATION, A.V.V., 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 DEFENDANT TILTWARE, LLC's SUPPLEMENTAL REPLY IN SUPPORT OF ITS MOTION TO DISMISS FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, FOR TRANSFER OF VENUE Defendant TiltWare, LLC ("TiltWare") respectfully submits this response to Plaintiff 1st Technology's supplemental opposition to TiltWare's motion to transfer venue (Docket #37-2) ("Supp. Opp."). 1st Technology's supplemental opposition is misleading. 1st Technology moved the Court for leave to file its supplemental opposition based on "new evidence" supporting venue in this district. The new evidence that 1st Technology relies on is "numerous marketing materials . . . distributed in Las Vegas during the 2006 World Series of Poker [in July and August 2006] which promote Tiltware's infringing Full Tilt Poker Software." Supp. Opp. at 4. As TiltWare stated in its reply brief filed on July 3, 2006, TiltWare is conceding that venue exists in this district. Thus, 1st Technology's alleged new evidence is irrelevant to the only issue before the Court: whether the Court should transfer venue to the Central District of California. Thus, it appears that 1st Technology 1 60928.1 28 Dockets.Justia.com Case 2:06-cv-00323-LDG-RJJ Document 44 Filed 11/13/2006 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 used this irrelevant "new evidence" to make new arguments that it failed to make in its initial opposition regarding whether the Court should transfer venue to the Central District of California. Moreover, 1st Technology's supplemental opposition falsely claims that TiltWare traveled to Las Vegas to promote its Full Tilt software. Supp. Opp. at 6. TiltWare develops software and licenses software. TiltWare does not and did not market its software in Las Vegas. See TiltWare's Motion to Dismiss, Imrich Decl. (Docket #14) at 4 ("Tiltware has not made, used, sold, offered to sell, licensed or distributed its software products to any person or entity located in Nevada"). Thus, 1st Technology's contention that TiltWare distributed its software in Las Vegas is not true. 1st Technology also tries to avoid transfer of this case to the Central District of California by converting from a California limited liability company to a Nevada limited liability company in August 2006. Supp. Opp. Exh. C. Upon information and belief, 1st Technology is a "patent troll" that has no business other than attempting to extract licensing fees from alleged infringers. 1st Technology is not a business that has decided to move to Nevada. Rather, 1st Technology's decision to convert from a California limited liability company into a Nevada limited liability company after TiltWare moved the Court to transfer this case to California where both TiltWare and 1st Technology are located appears to nothing more than an after-the-fact effort to forum shop. Nevertheless, the fact that 1st Technology is now a Nevada entity is not relevant to the factors that the Court should consider in deciding whether to transfer this case to California. Indeed, the only venue factors relevant to the location of the parties and the evidence still favor transfer to California: (1) the residence of the parties and the witnesses; (2) the forum's convenience to the litigants; and (3) access to physical evidence and other sources of proof. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). "The convenience of the witnesses is often the most important factor considered by the court when deciding a motion to transfer for convenience." Steelcase, Inc. v. Haworth, 2 60928.1 28 Case 2:06-cv-00323-LDG-RJJ Document 44 Filed 11/13/2006 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 Inc., 1996 WL 806026 *3 (C.D. Cal. 1996); Geo. F. Martin Co. v. Royal Ins. Co. of America, WL 1125048 (N.D. Cal. 2004) (same). 1st Technology does not claim that any witnesses moved from California to Nevada. Indeed, Dr. Lewis, the inventor of the `001 Patent, resides in Los Gatos, California. Compl. ¶ 9. 1st Technology does not claim that it has moved its principal place of business from California to Nevada. 1st Technology does not claim that any evidence has been moved from California to Nevada. Thus, the fact that 1st Technology is now a Nevada legal entity, apparently still with its principal place of business in California, is not relevant to the issue of whether the Court should transfer venue under the applicable factors. CONCLUSION The Court should transfer this case to the United States District Court for the Central District of California, Western Division. Dated: November 13, 2006. Respectfully submitted, LEWIS AND ROCA, LLP By: /s/ Michael J. McCue 3993 Howard Hughes Pkwy., Suite 600 Las Vegas, Nevada 89109 Attorneys for TiltWare, LLC 28 3 60928.1 Case 2:06-cv-00323-LDG-RJJ Document 44 Filed 11/13/2006 Page 4 of 4 1 2 3 4 CERTIFICATE OF SERVICE I hereby certify that I am an employee of LEWIS AND ROCA, LLP and that on this 13th day of November, 2006, I caused the documents entitled: DEFENDANT TILTWARE, LLC'S SUPPLEMENTAL REPLY IN SUPPORT OF ITS MOTION TO DISMISS FOR IMPROPER VENUE OR, IN THE 6 ALTERNATIVE, FOR TRANSFER OF VENUE, 5 7 to be served electronically via the CM/ECF system to the attorneys listed below: 8 Mark A. Hutchinson (4639) L. Kristopher Rath (5749) 9 Hutchinson & Steffen, LLC 10 Peccole Professional Park 10080 Alta Drive, Suite 200 11 Las Vegas, Nevada 89145 12 Attorneys for Plaintiff 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89109 /s/ Cynthia Ferguson An employee of Lewis and Roca, LLP 28 4 60928.1

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