Gibson Guitar Corporation v. Wal-Mart Stores, Inc. et al

Filing 88

RESPONSE in Opposition re 87 MOTION Permission to file Sur-Reply to Defendants' Motion to Dismiss or in the Alternative to Stay this Action in Favor of the First Filed Action in the Central District of California filed by, Inc., GameStop Corporation, Toys-R-Us, Inc., Sears, Roebuck & Co., Wal-Mart Stores, Inc., Target Corporation, Kmart Corporation. (Rose, Jonathan)

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Gibson Guitar Corporation v. Wal-Mart Stores, Inc. et al Doc. 88 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION Gibson Guitar Corporation, Plaintiff, v. Wal-Mart Stores, Inc., Target Corporation, Kmart Corporation, Sears, Roebuck & Co.,, Inc., GameStop Corporation, Toys-R-Us, Inc., Harmonix Music Systems, Inc., Viacom International, Inc., and Electronic Arts, Inc. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. 3:08-00279 JURY DEMAND Judge Wiseman Magistrate Judge Griffin RETAILER DEFENDANTS' OPPOSITION TO GIBSON GUITAR CORP.'S MOTION TO FILE A SURREPLY TO THE RETAILER DEFENDANTS' JOINT MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO STAY THIS ACTION IN FAVOR OF A FIRST-FILED ACTION IN THE CENTRAL DISTRICT OF CALIFORNIA ARGUMENT The Retailer Defendants hereby oppose Plaintiff Gibson Guitar Corporation's ("Gibson") application for Leave To File A Surreply. Surreplies are sanctioned by neither the Federal Rules of Civil Procedure, Stairmaster Sports/Med. Prod. v. Pacific Fitness Corp., 916 F. Supp. 1049, 1051 n.1 (W.D. Wash. 1994), nor the Local Civil Rules of this Court, L.R. 7-10 ("Absent prior written order of the Court, the opposing party shall not file a response to the reply."). Gibson's Surreply here is particularly inappropriate because it identifies nothing that it could not have raised in its Opposition, and because it misstates both the law and the facts. Gibson argues that a Surreply is necessary to clarify that it "never made a motion to dismiss or transfer the California Action." (Mot. Ex. A at 1.) This is misleading at best. Although Gibson technically failed to separately cross-move for dismissal or transfer in California, it not only requested this relief in its Opposition, but also submitted a proposed transfer order. In its California Opposition, Gibson included a section entitled "Activision's Declaratory Judgment Action Should be Dismissed as a Matter of Convenience and Judicial Economy." (Opp. at 23); it consumed three pages arguing that the transfer factors under 28 U.S.C. 1404(a) weighed in favor of its request; and it also included an alternative "Proposed Order" that the California Action be transferred. Further, Judge Pfaelzer expressly acknowledged and denied Gibson's dismissal and transfer request: [i]n addition to opposing Activision's motion for a preliminary injunction, Gibson requests dismissal of the patent claims or the transfer of them to the Tennessee Court pursuant to 28 U.S.C. 1404(a). The Court denies both of Gibson's requests because the 1404(a) factors -- when combined with the general rule favoring the forum of the first-filed case -- favor adjudicating Activision's patent claims in this Court. (Supp. Glass Decl. Ex. A at 5.) 61221/2534359.1 1 Having had its arguments squarely rejected in California, Gibson should not be permitted to propose (via surreply) that it never made them in the first place. Gibson also attempts to use its Surreply to explain away its complete failure to distinguish Judge Pfaelzer's decision denying its request for dismissal and transfer. It does so by arguing for the first time that her decision does not apply because "the standards with respect to anticipatory litigation are considerably different in the 6th Circuit, as compared to the 9th Circuit." (Mot. Ex. A at 2.) This is, of course, incorrect. It is black-letter law that the first-to-file rule in patent cases is governed by the law of the Federal Circuit, not the Sixth or Ninth. Genentech, Inc. v. Eli LIlly and Co., 998 F.2d 931, 937 (Fed. Cir. 1993) (overruled on other grounds). Gibson is well-aware of this case, as Activision cited Genentec for this proposition in the very California motion at issue. Gibson's attempts to distinguish Judge Pfaelzer's decision are thus baseless. CONCLUSION Gibson's request for leave to file a Surreply should be denied. Gibson identifies nothing that it could not have raised in its Opposition. Moreover, Gibson's proposed Surreply misapplies both the law and the facts pertaining to the California decision rejecting its request for a dismissal or transfer. Dated: June 10, 2008 61221/2534359.1 2 Respectfully submitted, s/ Jonathan D. Rose Samuel J. Lipshie (No. 9538) Thor Y. Urness (No. 13641) Jonathan D. Rose (No. 20967) BOULT CUMMINGS CONNERS BERRY, PLC 1600 Division Street, Suite 700 P.O. Box 340025 Nashville, TN 37203 Telephone: (615) 252-2332 Facsimile: (615) 252-6332 Edward J. DeFranco (admitted pro hac vice) James M. Glass (admitted pro hac vice) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Telephone: (212) 849-7000 Facsimile: (212) 443-7100 Harry A. Olivar, Jr. (admitted pro hac vice) QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP 865 Figueroa Street, 10th Floor Los Angeles, CA 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 61221/2534359.1 3 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing is being filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to: Douglas R. Pierce King & Ballow 315 Union Street, Suite 1100 Nashville, TN 37210 Matthew W. Siegal Richard Eskew Jason M. Sobel Stroock & Stroock & Lavan LLP 180 Maden Lane New York, NY 10038-4982 William Taylor Ramsey Aubrey B. Harwell, III Neal & Harwell 150 Fourth Avenue, North 2000 First Union Tower Nashville, TN 37210-2498 Mark A. Samuels Robert M. Schwartz William J. Charron O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071-2899 on this the 10th day of June, 2008. s/ Jonathan D. Rose Jonathan D. Rose 61221/2534359.1 4

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