Antor Media Corporation v. Metacafe, Inc.

Filing 152

SUR-REPLY to Reply to Response to Motion re 130 MOTION to Sever and MOTION to Stay re 11 Amended Complaint This document replaces Document No. 151 filed by Antor Media Corporation. (Chiaviello, Robert)

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Antor Media Corporation v. Metacafe, Inc. Doc. 152 Case 2:07-cv-00102-DF Document 152 Filed 09/19/2007 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ANTOR MEDIA CORPORATION, PLAINTIFF, V. METACAFE, INC., ET AL., DEFENDANTS. § § § § § § § § § § CIVIL ACTION NO. 02:07CV-102 JURY DEMANDED PLAINTIFF'S SURREPLY TO DEFENDANT NEW FRONTIER MEDIA INC'S REPLY IN SUPPORT OF MOTION TO SEVER AND STAY PENDING REEXAMINATION Plaintiff, Antor Media Corporation ("Antor") responds to the Reply in Support of Motion to Sever and Stay Litigation Pending Completion of Reexamination ("Reply") filed by New Frontier Media Inc. ("New Frontier") and respectfully requests that New Frontier's Motion be denied. I. INTRODUCTION The issues relating to a stay of this litigation pending reexamination of the `961 Patent have been well-briefed before this Court. However, during the time since reexamination of the `961 Patent began, it has become apparent that any stay pending reexamination of the `961 Patent is an indefinite stay, which is unduly prejudicial to Antor. Therefore, Antor requests that this Court deny a stay in this action. Dockets.Justia.com Case 2:07-cv-00102-DF Document 152 Filed 09/19/2007 Page 2 of 5 II. ARGUMENT In arguing for a stay of this litigation, New Frontier repeatedly harps on the fact that this Court granted a stay in the Antor II litigation. See, for example, Reply, pgs. 1, 3, 4. Further, New Frontier implies that Antor is not unduly prejudiced by any stay, even an indefinite, simply because Antor brought this action later in time. Id. at 4. Of course, New Frontier's arguments ignore that the primary rationale for granting a stay in the first place no longer exists. That is, in Antor II, a primary basis of the defendant's argument in support of a stay was the notion that the reexamination did not threaten a protracted or indefinite delay in the litigation. See Antor II, Docket Entry 232-1 at 12. However, after almost two years there has been no word from the USPTO. That is, a first Office Action has not yet issued. There is no way to determine when the reexamination of the `961 Patent will end, but it is safe to say the end is nowhere in sight. Clearly, there is virtually no chance that reexamination of the `961 Patent will be finished within the two year time frame suggested by the Antor II Defendants. Such an indefinite stay will not bring the parties any closer to a final resolution of the issues at hand. New Frontier largely bases its argument for severance on the idea that this action should be stayed. However, for the reasons set forth above, a stay is not appropriate. Accordingly, New Frontier should not be severed from this action. Therefore, Antor moves this Court to deny New Frontier's Motion. III. CONCLUSION WHEREFORE, Antor respectfully requests that New Frontier's Motion to Stay Pending Completion of Reexamination be, in all respects, denied. However, in the event this Court is 70039395.1 2 Case 2:07-cv-00102-DF Document 152 Filed 09/19/2007 Page 3 of 5 inclined to stay this litigation, Antor requests that the Court do so subject to the Antor Stipulation. Respectfully submitted this 18th day of September, 2007. /s/ Robert M. Chiaviello, Jr. Robert M. Chiaviello, Jr., Lead Attorney Texas Bar No. 04190720 Email: bobc@fulbright.com Brett C. Govett Texas Bar No. 08235900 Email: bgovett@fulbright.com FULBRIGHT & JAWORSKI L.L.P. 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201-2784 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 COUNSEL FOR PLAINTIFF ANTOR MEDIA CORPORATION 70039395.1 3 Case 2:07-cv-00102-DF Document 152 Filed 09/19/2007 Page 4 of 5 OF COUNSEL S. Calvin Capshaw, III Elizabeth L. DeRieux Andrew W. Spangler BROWN McCARROLL L.L.P. 1127 Judson Road, Suite 220 Longview, TX 75601 Telephone: (903) 236-9800 Facsimile: (903) 236-8787 Nicholas H. Patton J. Kurt Truelove PATTON, TIDWELL & SCHROEDER, L.L.P. 4605 Texas Blvd. Texarkana, TX 75503 Telephone: (903) 792-7080 Facsimile: (903) 792-8233 T. John Ward, Jr. LAW OFFICE OF T. JOHN WARD, JR., P.C. 109 W. Tyler Longview, TX 75601 Telephone: (903) 757-6400 Facsimile: (903) 757-2323 Otis W. Carroll IRELAND CARROLL & KELLEY, PC 6101 South Broadway Suite 500 Tyler, TX 75711-7879 Telephone: (903) 561-1600 Facsimile: (903) 581-1071 70039395.1 4 Case 2:07-cv-00102-DF Document 152 Filed 09/19/2007 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this document was served on all counsel who are deemed to have consented to electronic service per Local Rule CV-5(a)(3)(A) on September 18, 2007. /s/ Robert M. Chiaviello, Jr. Robert M. Chiaviello, Jr. 70039395.1 5

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