Rockstar Consortium US LP et al v. Google Inc

Filing 107

REPLY to Response to Motion re 100 Opposed MOTION to Strike 97 Response in Opposition to Motion, for Leave to File a Supplemental Brief in Response to Google's Motion to Transfer, and, in the Alternative, Cross-Motion to Stay Case Pending Resolution of Google's Trans fer Motion (Dkt. No. 97) filed by NetStar Technologies LLC, Rockstar Consortium US LP. (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.

REPLY IN SUPPORT OF
PLAINTIFFS’ MOTION TO STRIKE UNDER LOCAL RULE CV-7(A)
GOOGLE INC.’S OPPOSITION TO PLAINTIFFS’ MOTION FOR LEAVE TO FILE
A SUPPLEMENTAL BRIEF IN RESPONSE TO GOOGLE’S MOTION TO TRANSFER,
AND, IN THE ALTERNATIVE, CROSS-MOTION TO STAY CASE PENDING
RESOLUTION OF GOOGLE’S TRANSFER MOTION (DKT. NO. 97)

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I.

INTRODUCTION
Google cites no authority justifying its decision to disregard Local Rule CV-7(a) by

combining its own motion to stay with its opposition to Plaintiffs’ separate motion to file a short,
supplemental brief. Opp. at 2-3. Nor does Google attempt to respond substantively to Plaintiffs’
arguments why a stay should be denied on the merits. Opp. at 6. Instead, Google argues
inconsistently that it never intended to prejudice Plaintiffs by forcing them to respond to a
motion to stay with a single reply brief on a different motion, only to turn around and insist that
Plaintiffs must do just that. Compare Opp. at 4-5 (arguing that Plaintiffs “misstate[] the facts” in
suggesting that Google intended to limit Plaintiffs to a single reply brief on both motions); with
id. at 6 (declining to address any arguments “relat[ed] to the merits of whether a stay should be
entered” on the grounds that Plaintiffs instead must “make those arguments in its reply in support
of its Motion for Leave”). The Court should strike Google’s opposition and “cross-motion” for a
stay for violating the Local Rules and for failing on the merits.
II.

ARGUMENT
A.

Google Cites No Authority Justifying Its Disregard of Local Rule CV-7(a).

Local Rule CV-7(a) requires that “[e]ach pleading, motion or response to a motion must
be filed as a separate document” except for “motions for alternative relief, e.g., a motion to
dismiss, or, alternatively, to transfer.” L.R. CV-7(a). Google does not attempt to argue that its
request for a stay constitutes a “motion for alternative relief” falling within the exception to the
local rule. Nor could it, as Google’s pleading is not a motion seeking two forms of relief in the
alternative at all, but rather is an opposition to Plaintiffs’ motion for leave that has been
improperly combined with Google’s “cross-motion” for a stay. Google attempts to justify its
actions by stating its demand for a stay is merely a “request” and “not a separate motion at all.”
Opp. at 2. Contrary to its suggestion that its demand for a stay is a “request” but not a motion—

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and apart from the fact that a request for relief is, by its very nature, a motion—the title for
Google’s pleading indicates that it includes a “Cross-Motion to Stay Case Pending Resolution of
Google’s Transfer Motion.” See Dkt. No. 97 (emphasis added).
Google further argues—without citing any authority—that it properly combined its
motion for a stay with its opposition to Plaintiffs’ motion for leave because the issues are
“intertwined.” Opp. at 2. There is no exception under the Local Rules that permits a “crossmotion” to be filed with an opposition brief when they are “intertwined.” And it is not Google’s
prerogative to decide whether the supposedly “intertwined” nature of the issues permits it to
simply ignore the Local Rules that do exist. Google could have either (1) filed a separate motion
to stay or (2) sought leave from the Court to file a combined opposition and cross-motion.1
Google did neither. Google cites no authority whatsoever that would justify its combined
opposition and “cross-motion” to stay and completely disregards the authority Plaintiffs cited
that such combined pleadings should be stricken. See Mot. at 7-8 (citing cases).
Google’s final attempt to justify its decision to combine a motion to stay with its
opposition to Plaintiffs’ motion for leave is that the “availability of a continuance” is a relevant
factor in deciding whether to permit supplemental briefing after the deadline has passed. Opp. at
3 (citing Intel Corp. v. Commonwealth Scientific & Indus. Research Org., No. 06-CV-551, 2009
WL 8590766, at *1 (E.D. Tex. Apr. 9, 2009)) (emphasis added). In Intel, the Court denied the
defendants’ request to supplement their motion for summary judgment, opposition to the
1

Google suggests that absent its combined filing, it would not have been able to address the
availability of a stay as a cure for potential prejudice in its opposition to Plaintiffs’ motion for
leave. Opp. at 3. Not so. To the extent Google believed it was relevant to the motion for leave,
Google could have raised arguments regarding the availability of a stay in its opposition while
filing a separate motion actually requesting such relief. But Google was not entitled to decide
unilaterally to violate the Local Rules by combining a “cross-motion” seeking a stay with its
opposition to a separate motion for leave to file supplemental briefing.

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plaintiff’s motion for summary judgment, and an expert report in light of the Patent and
Trademark Office’s grant of reexamination. Intel, 2009 WL 8590766, at *1. In doing so, the
court recognized that such belated supplementation would cause undue prejudice and that a
continuance was not available due to the parties’ reliance on a rapidly approaching trial date. Id.
at *1-2. But Google’s pleading does not simply address the availability of a continuance as a
potential cure for prejudice; instead, it affirmatively requests that the Court stay the case entirely
while Google’s motion to transfer is pending. Nothing in the Intel decision remotely suggests
that filing a supplemental brief on a transfer motion in these circumstances would cause
prejudice, that a stay would be necessary to cure any such prejudice, or that it is proper to violate
the Local Rules by combining a motion to stay the case with an opposition to the motion seeking
leave to file supplemental briefing.
B.

Google’s Insistence that Plaintiffs Address Its “Cross-Motion” to Stay the
Case in a Reply to Another Motion Prejudices Plaintiffs.

Rather than offering any authority to support its disregard of Local Rule CV-7(a)—or
addressing the authority Plaintiffs cited that support striking its improper pleading—Google
devotes the majority of its brief to arguing that it did not intend to limit Plaintiffs’ ability to fully
oppose to the merits of a stay. Opp. at 4-5. Google, accordingly, argues that it offered to
“discuss” permitting Plaintiffs additional briefing during the parties’ meet-and-confer and that it
did not intend to make such a “discussion” conditional on Plaintiffs accepting an expedited
briefing schedule. Opp. at 5 & n.4.
But the proof is in the pudding: When Plaintiffs opposed Google’s request for expedited
briefing, Google filed a motion that indeed demanded Plaintiffs file a single reply brief to both
motions (and on an expedited schedule). See Dkt. No. 98 at 1 (stating under the proposed
schedule that “Rockstar’s Reply shall be due on Monday, June 30, 2014” and making no

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provisions for either additional pages of briefing or a sur-reply regarding the “cross-motion” to
stay).2 If Google truly did not intend to condition an offer for additional pages of briefing (and its
offer to “discuss” a sur-reply) on Plaintiffs’ acceptance of an expedited schedule, it could have
provided for such additional briefing in its motion to expedite. Google did not do so.
Moreover, contrary to its suggestion that it had no interest in forcing Plaintiffs to respond
to the merits of a stay with a single reply brief on a different motion, Google turns around and
argues in its opposition brief that Plaintiffs should have done just that. Despite the fact that
Plaintiffs’ Motion to Strike sets forth reasons why Google’s request for a stay should be denied
on the merits, Mot. at 8-11, Google refused in its opposition even to address such arguments on
the grounds that they “relate to the merits of whether a stay should be entered” and thus should
have been made in Plaintiffs’ “reply in support of its Motion for Leave.” Opp. at 6. Google’s
insistence that the only place in which Plaintiffs may oppose a stay is in a reply brief on a
different motion confirms that the combined pleading prejudices Plaintiffs and belies Google’s
denial that this was its intended effect.3
C.

Google’s Refusal to Defend a Stay on the Merits Further Justifies Striking Its
Opposition and “Cross-Motion” to Stay.

Plaintiffs’ motion sets forth numerous reasons why a stay should be denied on the merits
(or, at the very least, why the subject requires full briefing on a properly-filed motion). Mot. at 8-

2

Similarly, in its initial correspondence demanding an expedited briefing schedule, Google
insisted that Plaintiffs would be limited to a single reply brief on both motions. See Bonn Decl.
Exh. 1 at 6 (“[W]e propose an expedited briefing schedule for the remaining briefing on this
issue. We propose that Rockstar file its reply by Monday, June 30, and Google will file its surreply by Wednesday, July 2.”).
3

In light of the impropriety of Google’s combined pleading, Plaintiffs believed the appropriate
course of action was to file a motion to strike rather than acceding to Google’s violation of the
Local Rules by filing a single, combined reply on both motions.

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11. First, any supposed prejudice that Google claims must be remedied by stay—e.g., delay of
the Court’s resolution of the pending transfer motion—was caused by Google’s unnecessary
motion practice and not Plaintiffs’ filing of a short, supplemental brief. Opp. at 8-9. Second,
contrary to Google’s suggestion that a stay is required by In re Fusion-IO, 489 Fed. Appx. 465,
465 (Fed. Cir. 2012), the language regarding a stay in that case was mere dicta. Opp. at 10-11.
Third, staying the case pending transfer is contrary to (1) Local Rule CV-26(a)’s presumption
that cases will proceed even when there are “pending motions . . . to change venue”; (2) the
deference to the plaintiff’s choice of forum that is embodied in the transfer analysis; and (3)
Federal Circuit case law regarding ongoing developments in cases where a transfer has been
requested. Opp. at 10-12 (citing authority).
Google has elected not to address a single one of these arguments in its opposition brief,
justifying its refusal to do so on the grounds that Plaintiffs were only entitled to raise such
arguments in their reply brief to their motion for leave. Opp. at 6. The Court should therefore
strike Google’s combined opposition and “cross-motion” to stay, as Google has offered no
justification why a stay is warranted in light of the authority cited above.
III.

CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their motion

to strike Google’s opposition to Plaintiffs’ motion for leave and cross-motion to stay the case.
DATED: July 7, 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.

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1000 Louisiana Street, Suite 5100
Houston, Texas 77002
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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
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Amanda K. Bonn, CA State Bar No. 270891
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067
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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
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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
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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 7th day of July, 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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