Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Filing 391

SUR-REPLY to Reply to Response to Motion re 367 Opposed MOTION Adobe Systems Incorporated's Opposed Motion Requesting Case Management Conference To Address Plaintiff Eolas's Infringement Contentions Or, In The Alternative, To Strike Those Contentions and Motion For Expedited Consideratio filed by Eolas Technologies Incorporated. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(McKool, Mike)

Eolas Technologies Incorporated v. Adobe Systems Incorporated et al

Doc. 391 Att. 4

Exhibit 4

Dockets.Justia.com

Case 1:10-cv-03820 Document 32

Filed 08/12/10 Page 1 of 3
ARDC # 6204705

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MICROSOFT CORPORATION, Plaintiff, v. EOLAS TECHNOLOGIES, INC., Defendant. DEFENDANT'S MOTIONS TO DISMISS; TO DENY PLAINTIFF'S REQUEST FOR PRELIMINARY INJUNCTION; OR, IN THE ALTERNATIVE, TO STAY OR TRANSFER NOW COMES defendant, EOLAS TECHNOLOGIES, INC., by and through its attorney, David C. Van Dyke, and for its motions to: (1) dismiss Microsoft's declaratory judgment action for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction pursuant to 12(b)(1) and 12(b)(6); (2) to deny plaintiff's request for preliminary injunction; or (3) in the alternative, to stay or transfer. In support thereof, Eolas states as follows: ARGUMENT Microsoft's declaratory judgment action should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff's declaratory judgment action fails to state a claim for breach of contract under Illinois law pursuant to the License Agreement. Microsoft alleges breach of the parties' License Agreement occurred as a result of Eolas' filing of the Texas action and Eolas' refusal "to acknowledge the limits on its right to sue for infringement" neither of which can be a breach under the language of the License Agreement itself. Even if the declaratory judgment action states a claim, it should still be dismissed since Microsoft lacks subject matter jurisdiction under the Declaratory Judgment Act since it cannot demonstrate any No. 10 CV 3820 Judge James B. Zagel

Case 1:10-cv-03820 Document 32

Filed 08/12/10 Page 2 of 3

actual controversy pursuant to the License Agreement or Article III. Therefore, Microsoft's declaratory judgment action should be dismissed. In the alternative, assuming arguendo that this Court denies the motions to dismiss, this Court should either stay this case pending the resolution of the Texas Action (6:09 CV 446) or transfer the matter to the Eastern District of Texas. The issues Microsoft raises here substantially overlap with the defenses raised by the defendants in the Texas Action and necessarily are already being litigated there. Additionally, this Court should deny Microsoft's request for a preliminary injunction to prevent Eolas from pursuing any litigation that violates Microsoft's interpretation of the License Agreement's terms, which reflects a bargain the parties did not agree to. CONCLUSION WHEREFORE, defendant, EOLAS TECHNOLOGIES, INC., respectfully requests that this Court grant its motion to dismiss Microsoft's declaratory judgment action, deny plaintiff's request for a preliminary injunction, or, in the alternative, stay or transfer this case based on the foregoing arguments and attached Memorandum of Law.

Dated: August 12, 2010

Respectfully submitted, /s/ David C. Van Dyke David C. Van Dyke (#6204705) Trisha K. Tesmer (#6276038) CASSIDAY SCHADE LLP 20 N. Wacker Drive, Suite 1000 Chicago, IL 60606 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] E-Mail: [e-mail]

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Case 1:10-cv-03820 Document 32

Filed 08/12/10 Page 3 of 3

Pro Hac Vice Applications Pending For: Mike McKool, Jr. Douglas Cawley MCKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] E-Mail: [e-mail] Kevin L. Burgess Joshua W. Budwin John B. Campbell Matthew W. Rappaport MCKOOL SMITH, P.C. 300 West Sixth Street, Suite 1700 Austin, Texas 78701 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] E-Mail: [e-mail] E-Mail: [e-mail] E-Mail: [e-mail] ATTORNEYS FOR DEFENDANT, EOLAS TECHNOLOGIES, INC.

7398831 TTESMER;TTESMER

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