AdvanceMe Inc v. AMERIMERCHANT LLC

Filing 180

Joint MOTION to Dismiss Without Prejudice by AdvanceMe Inc, First Funds, LLC, AMERIMERCHANT LLC. (Attachments: # 1 Text of Proposed Order)(Race, Deborah)

AdvanceMe Inc v. AMERIMERCHANT LLC

Doc. 180

Case 6:06-cv-00082-LED-JDL

Document 180

Filed 08/29/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION ADVANCEME, INC. VS. AMERIMERCHANT, LLC, and FIRST FUNDS, LLC § § § § § §

Civil Case No. 6:06-CV-082(LED-JDL)

JOINT MOTION TO DISMISS WITHOUT PREJUDICE Come now plaintiff, AdvanceMe, Inc. and defendants, First Funds, LLC and AmeriMerchant, LLC, and file this joint motion to dismiss the present litigation referenced above, without prejudice to refiling same after resolution of the appeal in the case styled AdvanceMe, Inc. v. RapidPay, et al., Cause No. 6:05-CV-424 ("the RapidPay case"). The parties to this litigation have entered into an agreement that this suit will dismissed without prejudice to refiling, subject to certain stipulations which are summarized as follows: 1. The proper venue for refiling of this case will be in the Eastern District of Texas, Tyler Division; 2. Neither First Funds, LLC nor AmeriMerchant, LLC will institute any actions seeking a declaratory judgment regarding the `281 patent during the intervening time between the filing of this motion to dismiss and sixty days after the final resolution of the appeal in the RapidPay case; 3. The defendants will not use the time period during the appeal as the basis for asserting a laches argument on either damages or injunctive relief; 4. The parties have agreed that all statutes of limitations will be tolled until sixty days after the final conclusion of the RapidPay appeal.

Dockets.Justia.com

Case 6:06-cv-00082-LED-JDL

Document 180

Filed 08/29/2007

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5.

If the plaintiff does not re-file this suit within sixty days of the final resolution of the appeal in the RapidPay case, then the plaintiff agrees it is barred from re-filing the suit;

6.

If the plaintiff refiles the suit, then the parties agree that the Markman order in this cause, 6:06-CV-82, AdvanceMe, Inc. v. AmeriMerchant, LLC, et al. will apply to any re-filed action, except as such Markman Order may have been modified by the Federal Circuit during the RapidPay appeal.

Subject to the above stipulations as more fully set forth in a letter agreement dated August 23, 2007, the parties move this Court to dismiss any and all claims and counterclaims currently pending in the case styled AdvanceMe, Inc. v. AmeriMerchant, LLC and First Funds, LLC, Cause No. 6:06-CV-82, without prejudice to refiling pursuant to the agreement recited above. The parties further agree that they are to bear their own costs in connection with this

dismissal, subject to reserving the ability to seek such costs based upon the outcome of the RapidPay appeal. Respectfully submitted, By: /s/ Deborah Race Otis Carroll Texas State Bar No. 03895700 Deborah Race Texas State Bar No. 16448700 IRELAND, CARROLL & KELLEY, P.C 6101 S. Broadway, Suite 500 Tyler, Texas 75703 Tel: [phone] Fax: [phone] Email: [e-mail]

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Case 6:06-cv-00082-LED-JDL

Document 180

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Ronald S. Lemieux Robert C. Matz Vid Bhakar Shanee Williams Michael Edelman Gisu Sadaghiani Daisy S. Poon PAUL, HASTINGS, JANOFSKY & WALKER, LLP Five Palo Alto Square, Sixth Floor Palo Alto, CA 94306-2155 Tel: [phone] Fax: [phone] Douglas E. Olson (CA Bar No. 38649) Elizabeth L. Brann (CA Bar No. 222873) PAUL HASTINGS JANOFSKY & WALKER LLP 3579 Valley Centre Drive San Diego, CA 92130 Tel: [phone] Fax: [phone] ATTORNEYS ADVANCEME, INC. FOR PLAINTIFF

Respectfully submitted, By: /s/ Doug McSwane (with permission by Deborah Race) Douglas Ray McSwane State Bar No. 13861300 POTTER MINTON A Professional Corporation 110 N. College, Suite 500 Tyler, Texas 75702 Tel: [phone] Fax: [phone] [e-mail]

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Case 6:06-cv-00082-LED-JDL

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Willem G. Schuurman Joseph Daniel Gray Brian K. Buss VINSON & ELKINS, LLP The Terrace 7 2801 Via Fortuna, Suite 100 Austin, Texas 78746 Tel: [phone] Fax: [phone] Hilary Preston VINSON & ELKINS 666 Fifth Ave., 26th Fl. New York, NY 10103 Tel: [phone] Fax: [phone] [e-mail] Jeff Sanders 2696664 183 Madison Avenue New York, NY 10016 [phone] [phone] (fax) [e-mail] ATTORNEYS FOR DEFENDANT AMERIMERCHANT, L.L.C.

CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record or parties will be served by facsimile transmission and/or first class mail this 29th day of August, 2007. /s/ Deborah Race

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