Datatreasury Corporation v. Wells Fargo & Company et al

Filing 587

SUR-REPLY to Reply to Response to Motion re #83 MOTION to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(2) and Brief in Support Thereof filed by Unionbancal Corporation. (Pivnick, Scott)

Datatreasury Corporation v. Wells Fargo & Company et al

Doc. 587

Case 2:06-cv-00072-DF-CMC

Document 587

Filed 03/07/2007

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION DATATREASURY CORPORATION, Plaintiff, v. WELLS FARGO & COMPANY, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 2:06-CV-72

DEFENDANT UNIONBANCAL CORPORATION'S SURREPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(2) Defendant UnionBanCal Corporation ("UnionBanCal") submits this sur-reply in support of its opposition to DataTreasury Corporation's ("DataTreasury") Motion to Compel Certain Documents Relating to Defendant UnionBanCal Corporation's Jurisdictional Challenge (D.E. No. 523) ("Motion to Compel") to correct DataTreasury's mischaracterization of the governing law that applies both to Defendant UnionBanCal Corporation's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(2) and Brief in Support Thereof (D.E. No. 83) ("Motion to Dismiss") and to DataTreasury's Motion to Compel. In Defendant UnionBanCal Corporation's Reply to Plaintiff's Response to Defendant's Motion to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(2) (D.E. No. 247) and in UnionBanCal Corporation's Opposition to Plaintiff's Motion to Compel Production of Certain Documents (D.E. No. 575), UnionBanCal pointed out that Federal Circuit law, not Fifth Circuit law, applied to the determination of personal jurisdiction and the relevance of certain evidence to that determination. Thus, DataTreasury's citation to Gundle Lining Constr. Corp. v. Adams

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County Asphalt, Inc., 85 F.3d 201 (5th Cir. 1996), was inappropriate and could not be relied upon by this Court in deciding the motions at issue. Despite the clear case law on this issue, in its Reply to UnionBanCal Corporation's Opposition to Plaintiff's Motion to Compel Production of Certain Documents (D.E. No. 581) ("Pl.'s Reply"), DataTreasury persists in its reliance on Gundle and misconstrues the clear law to the contrary through an entirely circular argument. When it argues that the Gundle factors are nevertheless applicable, DataTreasury admits, as it must, that in patent infringement suits "the law of the United States Court of Appeals for the Federal Circuit and not the Fifth Circuit binds this court, even as to matters concerning personal jurisdiction." (Pl.'s Reply at 1 (quoting DataTreasury Corp. v. Small Value Payments Co., 2:04cv-85 (E.D. Tex.) (Order of Nov. 16, 2004) (hereinafter "DTC Order") (citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564-65 (Fed. Cir. 1994))).) Next, DataTreasury, in its parenthetical citation of Beverly Hills Fan Co., notes that "although issues of personal jurisdiction are generally procedural in nature, they are sufficiently related to substantive patent law, and thus the law of the Federal Circuit controls." (Pl.'s Reply at 2.) DataTreasury then states that the "Federal Circuit, however, defers to the law of the regional circuits to resolve nonsubstantive issues." (Id. (quoting DTC Order).) DataTreasury then incredibly concludes that "with regards to the issue of personal jurisdiction, this Court looks to the law of the regional circuit for guidance." (Id.) This penultimate sentence is directly contradicted by all of the case law cited by DataTreasury in the preceding sentences. DataTreasury's position on the law is simply wrong. DataTreasury's totally circular argument and misapplication of case law in its filings fail to present any factual or legal basis to support its theory that under Gundle it is entitled to

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broader jurisdictional discovery than that provided under this Court's prior order. 1 Instead, under the controlling Federal Circuit case law, it is clear that DataTreasury has failed to establish the relevance of the information sought in its Motion to Compel and has failed to establish that this Court has jurisdiction over UnionBanCal. Respectfully submitted, March 7, 2007 /s/ Scott J. Pivnick Scott J. Pivnick (pro hac vice submitted) Raymond L. Sweigart (pro hac vice submitted) PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Blvd. McLean, VA 22102-4859 T: [phone] F: [phone] [e-mail] [e-mail] Richard Hogan Texas Bar No. 09802010 PILLSBURY WINTHROP SHAW PITTMAN LLP 2 Houston Center 909 Fannin Street 22nd Floor Houston TX 77010 T: [phone] F: [phone] [e-mail] Jennifer Parker Ainsworth Texas Bar No. 00784720 WILSON, SHEEHY, KNOWLES, ROBERTSON & CORNELIUS, P.C. 909 ESE Loop 323, Suite 400 Tyler, Texas 75701 T: [phone] F: [phone] [e-mail] Attorneys for Defendant, UnionBanCal Corporation

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UnionBanCal notes as well that even under the Gundle factors, DataTreasury has not made a predicate showing that any of the expansive discovery it demands would be sufficient to establish personal jurisdiction. 3

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on March 7, 2007 a true and correct copy of the above and foregoing document has been served on all counsel of record who are deemed to have consented to electronic service via the Court's CM/ECF system per Local Rule CV-5(a)(3). /s/ Gerri Carrenard

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