Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 350

RESPONSE in Opposition re 346 MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the MOTION for Extension of Time to File Response/Reply as to 214 MOTION to Change Venue to the U.S. District Court for the Northern District of California Pursuant to 28 U.S.C. 1404(a) MOTION to Change Venue to the U.S. District Court for the filed by Apple Inc.. (Attachments: # 1 Exhibit A)(Cederoth, Richard)

Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Doc. 350

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION EOLAS TECHNOLOGIES, INC., Plaintiff, vs. ADOBE SYSTEMS, INC., ET AL., Defendants. AND RELATED COUNTERCLAIMS Civil Action No. 6:09-cv-446-LED

DEFENDANTS ADOBE SYSTEMS, INC., AMAZON.COM, INC., APPLE INC., BLOCKBUSTER INC., EBAY INC., THE GO DADDY GROUP, INC., GOOGLE INC., NEW FRONTIER MEDIA, INC., ORACLE AMERICA, INC. (FKA SUN MICROSYSTEMS INC.), PLAYBOY ENTERPRISES INTERNATIONAL, INC., YAHOO! INC., AND YOUTUBE, LLC'S OPPOSITION TO EOLAS'S MOTION FOR EXTENSION OF TIME TO FILE SUR REPLY IN OPPOSITION TO MOVING DEFENDANTS' MOTION TO TRANSFER [DKT. NO. 346] The Moving Defendants 1 oppose any further extensions of time to complete the briefing on the pending Motion to Transfer. The Motion to Transfer was filed on February 10, 2010-- almost five months ago. See Dkt. No. 214. Eolas has already requested and received three extensions of time with respect to the briefing on this motion, which has caused the adjudication of the Motion to Transfer to be delayed for months. See Dkt. Nos. 219, 237, 265. It is time for the briefing to be completed and the motion adjudicated.

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"Moving Defendants" are Adobe Systems, Inc., Amazon.Com, Inc., Apple Inc., Blockbuster Inc., eBay Inc., The Go Daddy Group, Inc., Google Inc., New Frontier Media, Inc., Oracle America, Inc. (fka Sun Microsystems Inc.), Playboy Enterprises International, Inc., Yahoo! Inc., and YouTube, LLC.

Dockets.Justia.com

The Staples joinder documents do not justify any further extensions of time. Nothing in Moving Defendants' reply brief in support of the Motion to Transfer cites to or discusses in any way factual information related to Staples. See Reply [Dkt. No. 324] passim. Eolas's surreply is, of course, limited to "responding to issues raised in the reply," and thus there is no basis or need for Eolas to take further venue-related discovery from Staples. L.R. CV-7(f). Even so, Eolas has already obtained from Staples and presented to the Court three different declarations from Staples employees providing factual information that Eolas contends is relevant to the Motion to Transfer. See Eolas Opp'n [Dkt. No. 291] Exs. 49A, 49B & 49C. Staples provided these declarations voluntarily to Eolas in reliance on Eolas's agreement to withdraw all venuerelated discovery as to Staples. See Staples Mot. for Protective Order [Dkt. No. 325] at 3 (citing McTague Decl. Ex. 2). Eolas's agreement with Staples negates any claim that Eolas is entitled to additional venue-related discovery from Staples. The Moving Defendants contacted Eolas and offered to drop any opposition to this motion for an extension if Eolas would agree not to argue that transfer should be denied because the proceedings in this action are too far along and the Court's investment and familiarity with the case weigh against transfer. See Ex. A hereto. Eolas declined. See id. To prevent any further prejudice, therefore, the Moving Defendants oppose Eolas's request for an extension of time. Cf. In re VTech Communications., Inc., Misc. No. 909, 2010 WL 46332, at *2-*3 (Fed. Cir. Jan. 6, 2010) (denial of transfer motion did not warrant mandamus relief given, inter alia, "the advanced stage of discovery and the completion of claim construction").

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Dated: July 1, 2010 /s/Richard A. Cederoth David T. Pritikin [e-mail] Richard A. Cederoth [e-mail] SIDLEY AUSTIN LLP One South Dearborn Chicago, Illinois 60603 Telephone: [phone] Facsimile: [phone] Theodore W. Chandler [e-mail] SIDLEY AUSTIN LLP 555 W. Fifth Street Los Angeles, California 90013 Telephone: [phone] Facsimile: [phone] Teague I. Donahey [e-mail] SIDLEY AUSTIN LLP 555 California Street San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] Eric M. Albritton Texas State Bar No. 00790215 [e-mail] ALBRITTON LAW FIRM P.O. Box 2649 Longview, Texas 75606 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant APPLE INC.

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David J. Healey Texas State Bar No. 09327980 [e-mail] FISH & RICHARDSON P.C. 1 Houston Center 1221 McKinney Street, Suite 2800 Houston, Texas 77010 Telephone: [phone] Facsimile: [phone]

/s/David J. Healey

OF COUNSEL: Frank E. Scherkenbach [e-mail] FISH & RICHARDSON P.C. 225 Franklin Street Boston, Massachusetts 02110-2804 Telephone: [phone] Facsimile: [phone] Joseph P. Reid [e-mail] Jason W. Wolff [e-mail] FISH & RICHARDSON P.C. 12390 EI Camino Real San Diego, California 92130 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant ADOBE SYSTEMS INCORPORATED /s/Douglas Lumish Douglas Lumish [e-mail] Jared Bobrow [e-mail] Joseph H. Lee [e-mail] WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, California 94065 Telephone: [phone] Facsimile: [phone]

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Christian J. Hurt Texas State Bar No. 24059987 [e-mail] WEIL, GOTSHAL & MANGES LLP 700 Louisiana, Suite 1600 Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants AMAZON.COM, INC., EBAY INC., AND YAHOO! INC. /s/David Kent Wooten David Kent Wooten Texas State Bar No. 24033477 [e-mail] VINSON & ELKINS L.L.P. 1001 Fannin Street 2500 First City Tower Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Scott Wayne Breedlove Texas State Bar No. 00790361 [e-mail] VINSON & ELKINS L.L.P. 2001 Ross Avenue 3700 Trammell Crow Center Dallas, Texas 75201-2975 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant BLOCKBUSTER INC. /s/Neil J. McNabnay Thomas M. Melsheimer Texas State Bar No. 13922550 [e-mail] Neil J. McNabnay Texas State Bar No. 24002583 [e-mail]

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J. Nicholas Bunch Texas State Bar No. 24050352 [e-mail] FISH & RICHARDSON P.C. 1717 Main Street, Suite 5000 Dallas, Texas 75201 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant THE GO DADDY GROUP, INC. /s/Scott T. Weingaertner Michael E. Jones State Bar No. 10929400 [e-mail] Allen F. Gardner State Bar No. 24043679 [e-mail] POTTER MINTON A Professional Corporation 110 N. College, Suite 500 (75702) P.O. Box 359 Tyler, Texas 75710 Telephone: [phone] Facsimile: [phone] Scott T. Weingaertner [e-mail] Robert F. Perry [e-mail] Christopher C. Carnaval [e-mail] Mark H. Francis [e-mail] KING & SPALDING LLP 1185 Avenue of the Americas New York, NY 10036-4003 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants GOOGLE INC. AND YOUTUBE, LLC

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Michael Simons Texas State Bar No. 24008042 [e-mail] AKIN GUMP STRAUSS HAUER & FELD LLP 1111 Louisiana Street, 44th Floor Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant NEW FRONTIER MEDIA, INC. /s/Eric H. Findlay Eric H. Findlay Texas State Bar No. 00789886 [e-mail] FINDLAY CRAFT, LLP 6760 Old Jacksonville Highway, Suite 101 Tyler, TX 75703 Telephone: [phone] Facsimile: [phone] Mark D. Fowler [e-mail] DLA PIPER US LLP 2000 University Avenue East Palo Alto, CA 94303-2215 Telephone: [phone] Facsimile: [phone] Kathryn B. Riley [e-mail] DLA PIPER US LLP 401 B Street, Suite 1700 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant ORACLE AMERICA, INC.

/s/Michael Simons

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/s/Avelyn M. Ross David B. Weaver Texas State Bar No. 00798576 [e-mail] Avelyn M. Ross Texas State Bar No. 24027871 [e-mail] Gentry C. McLean Texas State Bar No. 24046403 [e-mail] VINSON & ELKINS L.L.P. The Terrace 7 2801 Via Fortuna, Suite 100 Austin, Texas 78746-7568 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant PLAYBOY ENTERPRISES INTERNATIONAL, INC. CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(d), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by email, on this the 1st day of July, 2010. /s/Duy D. Nguyen

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