Rockstar Consortium US LP et al v. Google Inc

Filing 101

RESPONSE in Opposition re 98 Opposed MOTION to Expedite Briefing on Plaintiff's Motion for Leave to File a Supplemental Brief in Response to Google's Motion to Transfer, and, Google's Request, in the Alternative, to Stay Pending Resolution of Google's Transf er Motion filed by NetStar Technologies LLC, Rockstar Consortium US LP. (Attachments: # 1 Affidavit of Amanda K. Bonn in Support of Plaintiffs' Response in Opposition to Google Inc.'s Motion for Expedited Briefing Schedule, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Bonn, Amanda)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
ROCKSTAR CONSORTIUM US LP
AND NETSTAR TECHNOLOGIES
LLC
Plaintiffs,

Case No. 2:13-cv-00893-JRG-RSP

v.
GOOGLE INC.

JURY TRIAL DEMANDED

Defendant.

PLAINTIFFS’ RESPONSE IN OPPOSITION TO
GOOGLE INC.’S MOTION FOR EXPEDITED BRIEFING SCHEDULE ON
PLAINTIFFS’ MOTION FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF
IN RESPONSE TO GOOGLE’S MOTION TO TRANSFER, AND,
GOOGLE’S REQUEST, IN THE ALTERNATIVE,
TO STAY PENDING RESOLUTION OF GOOGLE’S TRANSFER MOTION

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TABLE OF CONTENTS
Page
I.

INTRODUCTION ...............................................................................................................1

II.

BACKGROUND .................................................................................................................3

III.

ARGUMENT .......................................................................................................................5
A.

B.

Expedited Briefing Is Unnecessary as Any Delay Is Caused by
Google’s Unnecessary Motion Practice. ..................................................................8

C.

IV.

The Court Should Not Reward Google’s Disregard of Local Rule CV7(a) by Adopting Google’s Expedited Briefing Schedule. ......................................5

Expedited Briefing Would Unfairly Limit Plaintiffs’ Ability to
Respond to Google’s Request to Stay the Case. ......................................................9

CONCLUSION ..................................................................................................................12

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TABLE OF AUTHORITIES

Cases
Cardiac Pacemakers, Inc. v. St. Jude Med., Inc.,
303 Fed. Appx. 884 (Fed. Cir. 2008), aff'd in part & rev'd in part on other grounds,
576 F.3d 1348 (Fed. Cir. 2009) (en banc)......................................................................... 12
Frazier v. Heebe,
482 U.S. 641, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) ..................................................... 11
In re Apple Inc.,
456 Fed. Appx. 907 (2012) ............................................................................................... 12
In re Fusion-IO, Inc.,
489 Fed. Appx. 465 (Fed. Cir. 2012) .......................................................................... 10, 11
In re HTC Corp.,
494 Fed. Appx. 81 (Fed. Cir. 2012) .................................................................................. 11
In re Vistaprint, Ltd.,
628 F.3d 1342 (Fed. Cir. 2010)......................................................................................... 11
In re Volkswagen of America, Inc.,
545 F.3d. 304(5th Cir. 2008) (en banc) ............................................................................ 11
Intel Corp. v. Commonwealth Scientific & Indus. Research, Org.
No. CV 06-551, 2009 WL 8590766 (E.D. Tex. Apr. 9, 2009) ........................................... 6
McDonnell Douglas Corp. v. Polin,
429 F.2d 30 (3d Cir. 1970)................................................................................................ 10
Persky v. Dolgencorp, Inc.,
No. CIV-07-136-C, 2008 WL 542959 (D. Okla. Feb. 25, 2008)........................................ 7
Weil v. Neary,
278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243 (1929) ............................................................. 11
White v. Indymac Bank, FSB,
No. CV 09-00571 DAE-KSC, 2012 WL 139203 (D. Haw. Jan. 18, 2012) ........................ 6

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Statutes
28 U.S.C. § 2071 ........................................................................................................................... 11
28 U.S.C. § 1404(a) ...................................................................................................................... 12
Rules
Fed. R. Civ. P. 1 ............................................................................................................................ 11
Fed. R. Civ. P. 83 .......................................................................................................................... 11
L.R. CV-7............................................................................................................................... passim
L.R. CV-26(a) ............................................................................................................................... 11

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I.

INTRODUCTION
Google’s Motion for Expedited briefing is procedural gamesmanship at its worst. After

briefing on Google’s motion to transfer was complete, Google served Invalidity Contentions and
subpoenas related to prior art in late May and June 2014, respectively. Dkt. No. 92-3 at Exhs. 2,
46-66. Google’s contentions and subpoenas confirmed what Plaintiffs had suspected—that
Google had cherry-picked prior art witnesses in its transfer motion in order to give the Court a
false impression that such witnesses were primarily located in the Northern District of California.
Mot. to Transfer, Dkt. No. 18 at 3; Resp. to Mot. to Transfer, Dkt. No. 33 at 1, 8, 12. As a result,
Plaintiffs sought leave to file a supplemental three-page brief addressing the location of
witnesses and evidence relating to Google’s asserted prior art.
Not only did Google oppose Plaintiffs’ uncontroversial request to file a short,
supplemental brief, it did so on the grounds that the Court’s consideration of a three-page brief
would cause undue delay. Moreover, Google combined with its opposition to Plaintiffs’ motion
for leave an entirely separate “Cross-Motion to Stay Case Pending Resolution of Google’s
Transfer Motion.” Dkt. No. 97. Without any apparent sense of irony, Google now insists that
expedited briefing on both Plaintiffs’ Motion for Leave and Google’s “Cross-Motion” for a stay
is necessary because “Google is concerned that, after Rockstar’s Motion for Leave is fully
briefed, it will take time for the Court to resolve the Motion for Leave, and if Rockstar’s Motion
for Leave is granted, Google should be entitled to an opportunity to respond,” which will
“further delay resolution of the Transfer Motion . . . .” Mot. at 1. Of course, all of this delay
could have been avoided if Google had simply consented to Plaintiffs’ straightforward request to
file a three-page supplemental brief and filed a short supplemental response brief of its own
yesterday.

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Instead, Google has multiplied the proceedings unnecessarily by not only opposing
Plaintiffs’ Motion for Leave but by folding in an entirely separate “Cross-Motion to Stay” into
its opposition. This violates Local Rule CV-7(a), which requires that “[e]ach pleading, motion or
response to a motion must be filed as a separate document,” with the only exception being
“motions for alternative relief, e.g., a motion to dismiss or, alternatively, to transfer.” L.R. CV7(a). As a result, Plaintiffs have moved to strike Google’s combined opposition and “crossmotion” to stay. See Dkt. No. 100.
Because it combined a completely separate Motion to Stay into its Response to a different
motion, Google takes the position that Plaintiffs are only entitled to file a single, five-page
“Reply” on both motions and further demand that such Reply be filed on an expedited schedule.
See Mot. at 1. Of course, that is not what the Local Rules prescribe. Under the Local Rules,
Plaintiffs are permitted to file one Reply to its Motion for Leave on July 2, 2014. Moreover, had
Google complied with Local Rule CV-7(a) and filed its motion to stay as a separate pleading,
Plaintiffs would have been entitled to a Response due fourteen days later and a Sur-Reply due
seven days after Google files its Reply. L.R. CV-7(e)-(f). Google’s procedural maneuvering thus
has the apparent purpose of eliminating Plaintiffs’ ability to adequately respond to Google’s
“Cross-Motion to Stay.” Compounding this prejudice to Plaintiffs, Google further seeks to force
Plaintiffs to respond to a Motion to Stay in just five days rather than fourteen as the Local Rules
permit (not to mention eliminating Plaintiffs’ right to file a Sur-Reply altogether).
Google’s Motion for Expedited Briefing seeks the Court’s endorsement of Google’s
disregard of the Local Rules and attempt to prevent full and fair briefing on a motion to stay
pending transfer. As a result, Plaintiffs respectfully request that the Motion be denied.

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II.

BACKGROUND
On January 10, 2014, Google filed a motion to transfer this case to the Northern District

of California, representing to the Court that transfer was warranted because “[k]ey witnesses
with knowledge of highly relevant prior art systems and publications concerning Internet search
and search advertising, along with crucial documentary evidence, are thus likely located in the
Northern District.” Mot. to Transfer, Dkt. No. 18 at 3. The importance of this argument to
Google’s transfer motion is evident even in the motion’s Table of Contents:

See Dkt. No. 18 at i. Plaintiffs opposed the motion and briefing was completed on March 27,
2014. See Dkt. No. 41. Plaintiffs pointed out that Google likely was “cherry-picking” its persons
with relevant knowledge, and despite Plaintiffs’ suggestion in its Response that it identify all
possible prior art witnesses, Google refused to do so in its Reply. Compare Resp. to Mot. to
Transfer, Dkt. No. 33 at 1, 8, 12; with Reply to Mot. to Transfer, Dkt. No. 36.
Google subsequently served its Invalidity Contentions in late May 2014 and several
subpoenas relating to prior art in the first three weeks of June 2014. See Dkt. No. 92-3 at Exhs. 2,
46-66. On June 20, 2014—the very same day that Google served eight such subpoenas—
Plaintiffs moved for leave to file a three-page supplemental brief addressing the location of prior
art witnesses and evidence. See Dkt. Nos. 92-93. Remarkably, Google indicated that it intended
to oppose Plaintiffs’ motion for leave on the grounds that (1) contrary to its earlier arguments to
the Court, the location of prior art witnesses and evidence is irrelevant to the transfer motion
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(apparently because the location of such witnesses and evidence, as it turns out, favors Plaintiffs’
position rather than Google’s) and (2) the Court’s consideration of a three-page supplemental
brief would unreasonably delay resolution of the transfer motion. See Dkt. 97. During the meetand-confer on Plaintiffs’ motion for leave, Google indicated that it would nevertheless stipulate
to the filing of such a supplemental brief so long as Plaintiffs would stipulate to stay the case
pending the Court’s disposition of the transfer motion. Dkt. 92 at 4 (Certificate of Conference).
Google did not indicate that it intended to seek a stay from the Court—merely that it would
accede to the filing of a supplemental brief if Plaintiffs would agree to a stay. See Bonn Decl.
Exh. 1.
On June 24, 2014, Google indicated for the first time not only that intended to seek a stay
from the Court, but that it further intended to (1) fold its request for a stay into its response to
Plaintiffs’ motion for leave and (2) demand an expedited briefing schedule on both Plaintiffs’
motion and Google’s “cross-motion” in opposition. See Bonn Decl. Exh. 1. Google sought
Plaintiffs’ agreement that they would not be permitted to file a Response brief and Sur-Reply
related to Google’s “cross-motion” for a stay, but instead would file only a single, five-page
Reply and on an expedited schedule at that.1 Id. Despite Plaintiffs’ repeated requests that Google
explain its basis for disregarding Local Rule CV-7(a), Google’s only justification for doing so
was that it believed its request for a stay related to its arguments in opposition to Plaintiffs’
motion for leave. See Bonn Decl. Exh. 1; see also Dkt. No. 98 at 2.

1

Google later suggested in a meet-and-confer that it might consider stipulating to additional pages of briefing,
though only if Plaintiffs would agree to the expedited schedule that Google proposed. See Bonn Decl. at ¶ 3.

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III.

ARGUMENT
A.

The Court Should Not Reward Google’s Disregard of Local Rule CV-7(a) by
Adopting Google’s Expedited Briefing Schedule.

Local Rule CV-7(a) requires that “[e]ach pleading, motion or response to a motion must
be filed as a separate document . . . .” L.R. CV-7(a). The only exception is a “motion[] for
alternative relief, e.g., a motion to dismiss or, alternatively, to transfer.” Id. This rule serves
several critical purposes. First, the rule allows the public (including other litigants) to follow
activity on the docket without guessing whether a new request for relief is buried in the briefing
on another matter. Second, and as the Court understands best, burying requests for relief in
briefing on separate matters frustrates the Court’s ability to track and report on pending motions.
Third, the rule prevents litigants from manipulating other Local Rules—including the rules
setting forth deadlines and page limits on briefing.
Yet that is precisely what Google did in this case—it combined a “Cross-Motion to Stay
Case Pending Resolution of Google’s Motion to Transfer” with its “Opposition to Plaintiffs’
Motion for Leave to File a Supplemental Brief in Response to Google’s Motion to Transfer.” See
Dkt. No. 97. And, by virtue of having done so, it now insists that Plaintiffs are not entitled to
invoke the rules regarding Responses and Sur-Replies to motions, but instead would be limited
to filing a single, five-page “Reply” brief (on an expedited schedule) to both its own Motion for
Leave and to Google’s Cross-Motion to Stay and must do so within five days. Bonn Decl. Exh.
1. Google’s maneuvering accomplishes no apparent purpose other than to benefit Google.
Google apparently attempts to justify its failure to file a separate Motion for Stay by
labeling its motion as a request for “alternative” relief. See Dkt. 97 & Bonn Decl. Exh. 1. But the
exception to Local Rule CV-7(a) is for “motions” that seek alternative forms of relief, such as “a
motion to dismiss or, alternatively, to transfer.” L.R. CV-7(a). The underlying motion here is

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Plaintiffs’ Motion for Leave to File a Supplemental Brief—which does not seek any form of
relief in the alternative. Google’s response to that motion, in turn, is not a request for relief at
all—it is an opposition to the relief Plaintiffs seek. Thus, the offending pleading is not a motion
that seeks two alternate forms of relief—it is simply an opposition brief into which Google has
bootstraped a completely separate request for its own relief.
Google further attempts to justify its decision to flout Local Rule CV-7(a) by noting that
its “arguments regarding a stay . . . fit squarely within the factors the Court should consider in
determining whether Rockstar’s requested supplemental briefing should be permitted.” Mot. at 2
(citing Intel Corp. v. Commonwealth Scientific & Indus. Research Org., No. CV 06-551, 2009
WL 8590766, at *1 (E.D. Tex. Apr. 9, 2009)). As an initial matter, there is no exception to the
separate pleading requirement in Local Rule CV-7(a) based on whether counsel believes its
arguments in opposition to one motion relate to its arguments in favor of a separate motion of its
own. Moreover, Google’s cited authority is inapposite on its face. The Intel decision merely
stands for the proposition that the Court may consider the “availability of a continuance,” as a
factor in deciding whether to permit amendments to pleadings under Rule 16(b) after the
deadline in the scheduling order has passed. Intel, 2009 WL 8590766, at *1. It does not stand for
Google’s apparent proposition that the Court is required to entertain an entirely separate motion
to stay in a combined opposition/cross-motion rather than on a separately-filed motion to stay per
Local Rule CV-7(a).
Courts in similar circumstances have refused to permit such manipulation of the Local
Rules. For example, in White v. Indymac Bank, FSB, No. CV 09-00571 DAE-KSC, 2012 WL
139203, at *6 (D. Haw. Jan. 18, 2012), the plaintiff filed an opposition brief to the defendants’
motion for summary judgment, including in its opposition a request for a temporary restraining

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order or preliminary injunction enjoining any trustee’s sale of the property at issue during the
pendency of the action (i.e., to stay any such proceeding). The court noted that this “fails to
comply with Local Rule 10.2(g), which contemplates that an application for TRO or preliminary
injunction be filed as a separate document with its own supporting points and authorities.” Id.
(emphasis added). Similarly, in Persky v. Dolgencorp, Inc., No. CIV-07-136-C, 2008 WL
542959, at *4 n.6 (D. Okla. Feb. 25, 2008), the plaintiff opposing a summary judgment motion
also sought to strike certain evidence the defendants had submitted. The court held that this was
improper, as the local rules “require[d] each motion to be filed as a separate document.” Id.
(emphasis added).
Similarly, this Court has not hesitated to strike improper pleadings that violate either the
Local Rules or the Court’s standing orders. See, e.g., Phoenix Licensing, LLC v. AAA Life Ins.
Co., No. CV 13-1081-JRG-RSP (E.D. Tex. June 5, 2014), Order Granting Mot. to Strike, Dkt.
171 at *1 (Payne, J.) (granting motion to strike “Statement Regarding Discovery Order and
Docket Control Order and Request for Deconsolidation,” and noting “[i]f Defendants wish to file
a motion, and have a good faith basis for doing so, they may do so under the rules” regarding
filing motions); Adrain v. Vigilant Video, Inc., No. CV 10-173-JRG (E.D. Tex. March 25, 2013),
Order Granting Motion to Strike Defendants’ Second Mot. for Summary Judgment, Dkt. 153, at
*1-2 (Payne, J.) (granting motion to strike summary judgment motion for failure to comply with
the Court’s standing order).
The same result is warranted here. Plaintiffs have filed a motion to strike Google’s
pleading for the reasons set forth above. Dkt. No. 100. If Google wishes to file a Motion to Stay
as a separate pleading as the Local Rules require, it is entitled to do so. If it then wishes to move
to expedite Plaintiffs’ Response and Sur-Reply, it can file that motion as well. But it is not

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entitled to disregard the Local Rules, fold its Motion to Stay into a separate Response, and then
demand expedited briefing on its procedurally-improper filing.
B.

Expedited Briefing Is Unnecessary as Any Delay Is Caused by Google’s
Unnecessary Motion Practice.

Ironically, the entire basis for Google’s Motion for Expedited Briefing (and underlying
“Cross-Motion to Stay”) is that “it will take time for the Court to resolve the Motion for Leave,
and if Rockstar’s Motion for Leave is granted, Google should be entitled to an opportunity to
respond” which “will further delay resolution of the Transfer Motion . . . .” Mot. at 1. The reason
Plaintiffs were forced to file the Motion for Leave in the first place is that Google refused to
consent to Plaintiffs’ filing a supplemental three-page brief, claiming that the Court’s
consideration of such a short brief would unduly delay disposition of the transfer motion. And
yet by requiring Plaintiffs to file an opposed Motion for Leave, Google has further delayed the
proceedings by forcing the Court to consider not only short, supplemental briefs on the transfer
motion but also briefing on (1) an opposed Motion for Leave; (2) Google’s “Cross-Motion to
Strike,” (3) Plaintiffs’ Motion to Strike Google’s improper combined opposition and request for
stay; and (4) Google’s Motion for Expedited Briefing. Google could have saved the parties and
the Court unnecessary time on these matters by simply agreeing to Plaintiffs’ supplemental brief
and filing a three-page supplemental brief of its own. Had it done so, any purported “delay”
would have ended yesterday when Google elected to multiply these proceedings with
unnecessary motions to stay the case and expedite briefing rather than simply filing a responsive
supplemental brief of its own. To the extent there is any delay and prejudice moving forward, it
is of Google’s own making.
The only other supposed prejudice warranting an expedited schedule that Google
complains of consists of complying with claim construction deadlines that have been known to

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Google all along and would be imposed regardless whether the case were litigated here or in the
Northern District of California. Mot. at 1-2; see also Dkt. No. 97 at 7-8. That process already
has begun, as the parties exchanged claim terms for construction the day before Google filed its
Motion. See Dkt. Nos. 96, 99. If Google truly believed it would be prejudiced by complying
with such deadlines pending transfer, it could have filed a motion to stay at any time previously
and regardless of the Court’s consideration of an additional three-page brief. It did not do so.
Instead, Google filed its motion to transfer in January 2014 and only now requests a stay in the
event that the Court elects to consider Plaintiffs’ three-page supplemental brief (but not
otherwise). And yet now—because of its belated filing of a “Cross-Motion to Stay”—Google
requests that briefing on the motion be circumscribed (with only a Reply brief from Plaintiffs
instead of a Response and Sur-Reply) and expedited.
As a result, the Court should deny Google’s request for expedited briefing.
C.

Expedited Briefing Would Unfairly Limit Plaintiffs’ Ability to Respond to
Google’s Request to Stay the Case.

If the Court is inclined to consider the question of a stay, the subject warrants full and
proper briefing on the timetable set by the Local Rules—fourteen days for a Response, seven
days for a Reply, and seven days for a Sur-Reply. Google’s relies on the Federal Circuit’s
decision in In re Fusion-IO—and, in particular, its dicta regarding a stay pending disposition of a
transfer motion—as justifying a stay in this case. Before that dicta becomes law, its
underpinnings warrant examination in a proper motion briefed on the regular schedule, not on
expedited and circumscribed briefing on a request for “alternative relief” hiding in a Response.
Full briefing will show that In re Fusion-IO’s dicta does not stand up to examination. This is not
the appropriate avenue for such briefing, but Plaintiffs endeavor to highlight a few of the reasons

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why In re Fusion-IO is wrongly decided (and why full briefing, on the regular briefing schedule,
is warranted).
The language Google relies on from In re Fusion-IO is dicta. In what started out as a
multi-defendant case, this Court granted the defendants’ motions to sever, and in so doing,
denied transfer motions without prejudice to refiling should transfer still be warranted in light of
severance. Solid State Storage Solutions, Inc., v STEC, Inc, et al, 2:11-cv-00391-JRG-RSP, Dkt.
No. 226 (E.D. Tex. Sept. 17, 2012). Instead of refiling its transfer request, Fusion-IO, Inc.,
sought an immediate mandamus, asserting that the denial without prejudice somehow constituted
a ruling denying their transfer request on the merits. The Federal Circuit denied mandamus. In
re Fusion-IO, Inc., 489 Fed. Appx. 465, 465 (Fed. Cir. 2012) (“Fusion–IO’s petition asks us, in
effect, to bypass the district court’s weighing of the facts and considerations relevant to its
transfer motion, which we decline to do.”) Indeed, the Federal Circuit directed the mandamus
petitioner to refile its transfer request, which is exactly what this Court provided in the first
place. Id.
The question of a stay was not presented to this Court in the first instance, nor to the
Federal Circuit on mandamus. See Bonn Decl. Exhs. 2-4 (briefing from In re Fusion). So what
came next was pure dicta: “We fully expect, however, for Fusion–IO to promptly request transfer
in the lead case along with a motion to stay proceedings pending disposition of the transfer
motion, and for the district court to act on those motions before proceeding to any motion on the
merits of the action.” In re Fusion-IO, Inc., 489 Fed.Appx. at 465 (citing McDonnell Douglas
Corp. v. Polin, 429 F.2d 30, 30–31 (3d Cir. 1970)).
The presumption under Local Rule CV-26(a) is that cases will proceed during the
pendency of a motion to transfer. L.R. CV-26(a). In re Fusion-IO did not address Local Rule

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CV-26(a). A district court has discretion to adopt local rules. Frazier v. Heebe, 482 U.S. 641,
645, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987) (citing 28 U.S.C. § 2071; Fed. R. Civ. P. 83). Those
rules have “the force of law.” Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 73 L.Ed. 243
(1929). Local Rule CV-26(a) not only anticipates that cases will continue despite transfer
motions, it explicitly provides that the pendency of a transfer motion is no excuse to dodge
discovery obligations.

This approach is not a local idiosyncrasy. It is consistent with

longstanding understandings of core concepts such as “just, speedy, and inexpensive
determination of every action.” Fed. R. Civ. P. 1.
Proceeding with cases during the pendency of a transfer request also has roots in
deference to the plaintiff’s choice of forum. That deference is embodied in the “clearly more
convenient” standard. In re Volkswagen of Am., Inc., 545 F.3d. 304, 314 (5th Cir. 2008) (en
banc). Deference to the plaintiff’s choice of forum would vanish if defendants could stay the
case against them simply by filing a transfer motion and waiting to the time of their choosing to
request a stay.
There is ample precedent in the Federal Circuit for cases proceeding during the pendency
of a transfer motion. Indeed, the ability of the district court to assess the facts as the case
develops has been recognized crucial to proper evaluation of § 1404(a) motions.

In re

Vistaprint, Ltd., 628 F.3d 1342, 1346 (Fed. Cir. 2010) (“[A] trial judge has superior opportunity
to familiarize himself or herself with the nature of the case and the probable testimony at trial,
and ultimately is better able to dispose of these motions.”); In re HTC Corp., 494 Fed. Appx. 81,
83 (Fed. Cir. 2012) (“[T]here is at least some evidence that Google will have little or no role in
the litigation, as Google has not been subpoenaed ….”); In re Apple Inc., 456 Fed. Appx. 907,
909 (2012) (“[S]ome reasons for transfer because of convenience and fairness in regard to pre-

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trial proceedings such as subpoena power to secure witnesses for deposition deserve less
consideration so close to trial.”). As with the regional circuits, one panel of the Federal Circuit
cannot reverse another. Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 303 Fed. Appx. 884,
893 (Fed. Cir. 2008), aff’d in part & rev’d in part on other grounds, 576 F.3d 1348 (Fed. Cir.
2009) (en banc). Thus, the dicta in In re Fusion-IO cannot reverse these other precedents.
The parties should have an opportunity to properly brief how (or whether) In re FusionIO can be reconciled with these and other Federal Circuit cases. The appropriate avenue for such
briefing is on a separately-filed Motion to Stay and on the briefing schedule set forth in the Local
Rules. Google should not be permitted to hamstring Plaintiffs’ ability to respond to its argument
for a stay—and the Court’s ability to fully consider the implications of In re Fusion-IO—through
procedural gamesmanship.
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court deny Google’s

Motion for Expedited Briefing.
DATED: June 26, 2014

Respectfully submitted,
By: /s/ Amanda K. Bonn
Max L. Tribble, Jr. – Lead Counsel
State Bar No. 20213950
Alexander L. Kaplan, State Bar No. 24046185
John P. Lahad, State Bar No. 24068095
Shawn Blackburn, State Bar No.
SUSMAN GODFREY L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Justin A. Nelson, State Bar No. 24034766
Parker C. Folse, III, WA State Bar No. 24895
Kristin Malone, WA State Bar No. 46251
SUSMAN GODFREY L.L.P.
1201 Third Ave, Suite 3800
Seattle, Washington 98101
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Amanda K. Bonn, CA State Bar No. 270891
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: [phone]
[e-mail]
T. John Ward, Jr., State Bar No. 00794818
Claire Abernathy Henry, State Bar No. 24053063
WARD & SMITH LAW FIRM
P.O. Box 1231
Longview, TX 75606-1231
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
S. Calvin Capshaw, State Bar No. 03783900
Elizabeth L. DeRieux, State Bar No. 05770585
D. Jeffrey Rambin, State Bar No. 00791478
CAPSHAW DERIEUX, LLP
114 E. Commerce Ave.
Gladewater, TX 75647
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Rockstar Consortium US LP and
NetStar Technologies LLC

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CERTIFICATE OF SERVICE
I hereby certify that all counsel of record, who are deemed to have consented to
electronic service, are being served this 26th day of June, 2014 with a copy of this document via
the Court’s CM/ECF system per Local Rule CD-5(a)(3).

/s/ Amanda K. Bonn____
Amanda K. Bonn

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