Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al
RESPONSE in Opposition re #722 Joint SEALED MOTION DEFENDANTS MOTION FOR RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE 120 PATENT (DKT. NO. 659)Joint SEALED MOTION DEFENDANTS MOTION FOR RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE 120 PATENT (DKT. NO. 659)Joint SEALED MOTION DEFENDANTS MOTION FOR RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF THE 120 PATENT (DKT. NO. 659) filed by Bedrock Computer Technologies, LLC. (Attachments: #1 Exhibit 1, #2 Text of Proposed Order)(Cawley, Douglas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SOFTLAYER TECHNOLOGIES, INC.,
CASE NO. 6:09-cv-269-LED
Jury Trial Demanded
BEDROCK’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION FOR
RECONSIDERATION AND OBJECTIONS TO REPORT AND RECOMMENDATION
DENYING MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF
THE ‘120 PATENT (DKT. NO. 659)
Plaintiff Bedrock Computer Technologies LLC (“Bedrock”) hereby submits its response
in opposition to Defendants’ Motion for Reconsideration and Objections to Report and
Recommendation Denying Motion for Summary Judgment of Non-Infringement (Dkt. No. 722).
Bedrock respectfully requests that the Court adopt Magistrate Judge Love’s Report and
Recommendation (“Recommendation”) denying summary judgment of non-infringement,
overrule Defendants’ objections, and deny Defendants’ motion for reconsideration.
After considering the parties’ briefings, conducting a hearing, and listening to the parties’
arguments regarding non-infringement, Magistrate Judge Love correctly concluded that
Defendants’ motion for summary judgment of non-infringement should be denied. (See Dkt. No.
659.) Defendants’ instant motion, which seeks to overturn Judge Love’s Recommendation,
raises arguments which were previously carefully considered and then rejected by Judge Love.
For these reasons, the Court should deny Defendants’ motion and adopt Judge Love’s
Judge Love Was Not Required to Submit Findings of Fact or Conclusions of
Defendants first assert that, because Judge Love did not provide findings of fact or
conclusions of law to support his Recommendation that summary judgment of non-infringement
of U.S. Patent No. 5,893,120 (“’120 patent”) be denied, the Court should reject the
(Dkt. No. 422 at 1.)
However, Defendants cite no case law for this
proposition, and Defendants’ strained reading of 28 U.S.C. § 636(b)(1) is at odds with the
express language of Federal Rule of Civil Procedure 72(b)(1), which states that for dispositive
motions, a magistrate “must enter a recommended disposition, including, if appropriate,
proposed findings of fact.” FED. R. CIV. P. 72(b)(1) (emphasis added); see also Habets v. Waste
Mgmt., 363 F.3d 378, 382 (5th Cir. 2004) (“[T]he magistrate here made no involved findings of
fact because this was a recommendation on a motion for summary judgment.”).
Further, the district court judge—not the magistrate—is vested with ultimate decisionmaking authority as to whether the evidence of record supports a magistrate’s recommendation
on a dispositive matter. See 28 U.S.C. § 686; see also Mass. Institute of Tech. v. Abacus
Software, Inc., et al., Case No. 5:01-CV-344, 2004 U.S. Dist. LEXIS 30050, *16 (E.D. Tex.
Sept. 29, 2004) (citing Freeman v. County of Bexar, 142 F.3d 848, 852 (5th Cir. 1998)).
Because the district court judge always retains authority to review, alter, adopt, or reject a
magistrate’s recommendation, a recommendation’s omission of specific findings of fact and
conclusions of law cannot, alone, render the recommendation improper.
See id.; see also
ColorQuick, LLC v. VistaPrint Ltd., et al., Case No. 6:09-CV-323, 2010 U.S. Dist. LEXIS
136226, *14 (E.D. Tex. July 22, 2010) (Davis, J.) (denying objections to the magistrate’s
determination and stating that, “although the factors were acknowledged in broad terms, there is
nothing to support Defendants’ conclusion that the Magistrate Judge did not carefully consider
and weigh each factor. Moreover, the [district] Court’s more detailed discussion of the relevant
factors confirms the Magistrate Judge's conclusion”).
Accordingly, Magistrate Judge Love simply was not required to set forth findings of fact
and conclusions of law in his recommendation, and there is, thus, no basis for Defendants’
contention that the Recommendation is improper.
Defendants’ Substantive Arguments Have Already Been Addressed.
With respect to Defendants’ substantive objections to Judge Love’s Report and
Recommendation, Defendants rely only upon arguments which were already detailed in the
summary judgment briefing, addressed in argument at the March 17, 2011 hearing, and fully
responded to by Bedrock. (See Dkt. Nos. 463 [Defendants’ Motion for Summary Judgment of
Non-Infringement], 533 [Bedrock’s Response in Opposition], 574 [Defendants’ Reply], and 601
[Bedrock’s Sur-Reply]; see also Dkt. Nos. 669 [Yahoo!’s Motion to Strike Bedrock’s Spinlock
Theory] and 687 [Bedrock’s Response].)
As such, Bedrock will not duplicate that discussion here.1 Rather, Bedrock adopts by
reference its arguments in Docket Numbers 533, 601, and 687 and requests that the Court adopt
the Report and Recommendation of Judge Love and deny Defendants’ Motion for Summary
Judgment of Non-Infringement, (Dkt. No. 659), and Defendants’ motion for reconsideration.
For the aforementioned reasons, Bedrock respectfully requests that the Court deny
Defendants’ Motion for Reconsideration.
Bedrock further notes that jury’s verdict in the first trial against Google, which found that the
’120 patent was infringed, and this Court’s denial of Defendants’ Motion for Judgment as a
Matter of Law of Non-Infringement. (See Trial Tr. (April 14, 2011, afternoon), attached hereto
as Exhibit 1, at 110:1–14; Dkt. No. 746.)
DATED: April 21, 2011
McKOOL SMITH, P.C.
/s/ Douglas A. Cawley
Sam F. Baxter
Texas Bar No. 01938000
McKOOL SMITH, P.C.
104 E. Houston Street, Suite 300
P.O. Box 0
Marshall, Texas 75670
Telephone: (903) 923-9000
Facsimile: (903) 923-9099
Douglas A. Cawley, Lead Attorney
Texas Bar No. 04035500
Theodore Stevenson, III
Texas Bar No. 19196650
Scott W. Hejny
Texas Bar No. 24038952
Jason D. Cassady
Texas Bar No. 24045625
J. Austin Curry
Texas Bar No. 24059636
Phillip M. Aurentz
Texas Bar No. 24059404
Texas State Bar No. 24074311
Ryan A. Hargrave
Texas State Bar No. 24071516
McKOOL SMITH, P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Robert M. Parker
Texas Bar No. 15498000
Robert Christopher Bunt
Texas Bar No. 00787165
PARKER, BUNT & AINSWORTH, P.C.
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who are deemed to have consented to electronic
service are being served with a copy of the forgoing document via the Court’s CM/ECF system
pursuant to the Court’s Local Rules this 21st day of April, 2011.
/s/ Ryan A. Hargrave
Ryan A. Hargrave
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