Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 81

Unopposed MOTION for Leave to File a First Amended Answer, Affirmative Defenses, and Counterclaims by Softlayer Technologies, Inc.. (Attachments: #1 Text of Proposed Order)(Storm, Paul)

Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Doc. 81

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, vs. 1. SOFTLAYER TECHNOLOGIES, INC., 2. CITIWARE TECHNOLOGY SOLUTIONS, LLC, 3. GOOGLE, INC., 4. YAHOO! INC., 5. MYSPACE, INC., 6. AMAZON.COM, INC., 7. PAYPAL INC., 8. MATCH.COM, INC., 9. AOL LLC, and 10. CME GROUP, INC., Defendants. § § § § § § § § § § § § § § § § § § § § § §

Civil Action No. 6:09-cv-269

Jury Trial Demanded

DEFENDANT SOFTLAYER TECHNOLOGIES, INC.'S UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS Pursuant to FED. R. CIV. P. 15(a), Defendant Softlayer Technologies, Inc. ("Softlayer" or "Defendant") moves the Court for leave to file its First Amended Answer, Affirmative Defenses, and Counterclaims to Plaintiff Bedrock Computer Technologies LLC's ("Bedrock" or "Plaintiff") Original Complaint for Patent Infringement. Defendant attaches Exhibit 1 as its proposed amended Answer. By way of amendment, Defendant seeks to withdraw its defense of unenforceability due to inequitable conduct, which was pled in Defendant's Original
DEFENDANT SOFTLAYER TECHNOLOGIES, INC.'S MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS Page 1

Dockets.Justia.com

Answer as its Third Affirmative Defense.

Pursuant to agreement with counsel for

Plaintiff, Defendant, by withdrawal of the inequitable conduct defense, does not waive its right to re-plead such defense in the event that it becomes aware of evidence indicating inequitable conduct on the part of Plaintiff during discovery. Further, the parties, through counsel, have agreed that the non-waiver effect of the withdrawal of this defense shall not, in any way, be meant to expand or enlarge the proper scope of discovery on the matter. Bedrock, through counsel, has indicated that it does not oppose Defendant's Motion for Leave to file the attached First Amended Answer, Affirmative Defenses, and Counterclaims. Because Bedrock does not oppose the proposed amendment, Defendant respectfully requests that the Court GRANT Defendant leave to file the amended pleading filed concurrently herewith. Dated: September 17, 2009 Respectfully submitted, /s/ Paul V. Storm Paul V. Storm State Bar No. 19325350 Anthony P. Miller State Bar No. 24041484 S. Scott Pershern State Bar No. 24060412 STORM LLP 901 Main Street Suite 7100 Dallas, Texas 75202 [phone] (Telephone) [phone] (Facsimile) ATTORNEYS FOR DEFENDANT SOFTLAYER TECHNOLOGIES, INC.
DEFENDANT SOFTLAYER TECHNOLOGIES, INC.'S MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS Page 2

CERTIFICATE OF CONFERENCE I hereby certify that on the 11th day of September, 2009, I conferred with Douglas A. Cawley, counsel for Plaintiff Bedrock Computer Technologies LLC and Plaintiff does not oppose this motion or the filing of the First Amended Complaint, Affirmative Defenses, and Counterclaims.

/s/ Paul V. Storm____ Paul V. Storm

DEFENDANT SOFTLAYER TECHNOLOGIES, INC.'S MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS Page 3

CERTIFICATE OF SERVICE I hereby certify that on this 17th day of September, 2009, a true and correct copy of the foregoing DEFENDANT SOFTLAYER TECHNOLOGIES, INC.'S

UNOPPOSED MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS has been sent to the following counsel of record by electronic mail through ECF filing in accordance with the Federal Rules of Civil Procedure and the local Rules of the Eastern District of Texas: Samuel F. Baxter [e-mail] McKOOL SMITH, P.C. 104 E. Houston Street, Suite 300 P.O. Box O Marshall, Texas 75670 903.923.9000 (Telephone) 903.923.9099 (Facsimile) Robert M. Parker [e-mail] Robert Christopher Bunt [e-mail] PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 903.531.3535 (Telephone) 903.533.9687 (Facsimile) Yar R. Chaikovsky [e-mail] John Alexander Lee [e-mail] SONNENSCHEIN NATH & ROSENTHAL LLP 1530 Page Mill Road, Ste 200 Palo Alto , CA 94304-1125 650.798.0330 (Telephone) 650.798.0310 (Facsimile) Theodore Stevenson, III [e-mail] McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 214.978.4000 (Telephone) 214.978.4044 (Facsimile) Michael Edwin Jones [e-mail] POTTER MINTON PC 110 N College Suite 500 PO Box 359 Tyler, TX 75710-0359 903.597.8311 (Telephone) Mark Christopher Nelson [e-mail] SONNENSCHEIN NATH & ROSENTHAL LLP 2000 McKinney Avenue, Suite 1900 Dallas , TX 75201 214.259.0901 (Telephone) 214.259.0910 (Facsimile)

DEFENDANT SOFTLAYER TECHNOLOGIES, INC.'S MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS Page 4

Alan Lee Whitehurst [e-mail] ALSTON & BIRD 950 F Street, NW Washington , DC 20004 202.756.3491 (Telephone) 202.756.3333 (Facsimile)

Theresa S. Costin

DEFENDANT SOFTLAYER TECHNOLOGIES, INC.'S MOTION FOR LEAVE TO FILE A FIRST AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS Page 5