Uniloc USA, Inc. et al v. NATIONAL INSTRUMENTS CORP. et al

Filing 113

Joint MOTION to Change Venue Under 28 U.S.C. § 1404(a) by Adobe Systems Inc., Alladin Knowledge Systems Ltd., Alladin Knowledge Systems, Inc., CA, Inc., NATIONAL INSTRUMENTS CORP., Onyx Graphics, Inc., Pinnacle Systems, Inc., Safenet, Inc., Sonic Solutions, Symantec Corp.. (Attachments: # 1 Exhibit 1-Sony motion to transfer, # 2 Exhibit 2-Sony reply ISO motion to transfer, # 3 Exhibit 3-Sony reply to sur-reply ISO motion to transfer, # 4 Exhibit 4-Uniloc complaint (USDC D. RI), # 5 Exhibit 5-Notice of dismissal of Aladdin Knowledge Systems Inc., # 6 Exhibit 6-National Instruments Corporation declaration, # 7 Exhibit 7-Adobe Systems Incorporated declaration, # 8 Exhibit 8-SafeNet, Inc. declaration, # 9 Exhibit 9-CA, Inc. declaration, # 10 Exhibit 10-Pinnacle Systems, Inc. declaration, # 11 Exhibit 11-Sonic Solutions declaration, # 12 Exhibit 12-Onyx Graphics, Inc. declaration, # 13 Exhibit 13-Symantic Corp. declaration, # 14 Exhibit 14-Aladdin Knowledge Systems, Inc. and Aladdin Knowledge Systems, Ltd. declaration, # 15 Text of Proposed Order)(Healey, David)

Uniloc USA, Inc. et al v. NATIONAL INSTRUMENTS CORP. et al

Doc. 113 Att. 3

EXHIBIT 3

Dockets.Justia.com

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION UNILOC USA, INC., and UNILOC SINGAPORE PRNATE LIMITED Plaintiff, v. SONY CORPORATION OF AMERICA, et al. Defendants. --------------) ) ) ) ) ) ) )

Civil Action No. 6:l0-cv-00373 LED

DEFENDANTS' RESPONSE TO UNILOC'S SUR-REPLY IN SUPPORT OF THEIR MOTION TO TRANSFER Defendants Sony Corp. of America, Sony DADC US, Inc., Activision Blizzard, Inc., Aspyr Media, Inc., Borland Software Corp., McAfee, Inc., and Quark, Inc. (collectively "Defendants") respond to Plaintiffs Uniloc USA, Inc. and Uniloc Singapore Private Limited's (jointly "Uniloc") Sur-reply in Support of Their Opposition to Defendants' Motion to Transfer (Doc #97) as follows: Uniloc's Sur-reply identifies that on January 27, 2011, Judge Smith of the District of Rhode Island, who presided over the Uniloc v. Microsoft action for nearly 7 years, refened the remanded damages case to Judge Young of the U.S. District Court for the District of Massachusetts to sit by designation. (See Uniloc v. Microsoft, No. 03-440 (D.R.I. January 27, 2011) (order [Dkt. 444].) However, Uniloc's Sur-reply fails to apprise the Court of District of Rhode Island Local General Rule 105(b), which requires reassignment of any action remanded for a new trial. Local General Rule 105 (b) 1 provides, in part:

Remanded Cases. Any case remanded to this Court for a new trial shall be reassigned to a judge other than the judge to whom the case previously was assigned.
Select portions of the United States District Court for the District of Rhode Island Local Rules are attached to this Response for the Court's convenience.
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This rule is why Judge Smith is not presiding over the remanded damages trial. However, there is no rule that precludes Judge Smith from presiding over other Uniloc cases filed in or transfened to the District of Rhode Island. To the contrary, consistent with notions of judicial economy, the Rhode Island local rules require that such cases would be assigned to Judge Smith. (See LR Gen 105(a)(2).) Thus, Uniloc v. Microsoft was remanded to and is still pending in the District of Rhode Island where the Magistrate will handle pre-trial matters and where Judge Young will preside over the remanded damages trial because he is sitting by designation. (See Dkt. 444.) In this regard, even with a judge sitting by designation, the United States District Court for the District of Rhode Island retains jurisdiction over the Uniloc v. Microsoft case under Local General Rule 106 ("LR Gen 106"): When a judge of another district is designated to hear a case ... [t]he originating court [i.e., Rhode Island] shall retain jurisdiction over the case, and the Local Rules of the originating court shall govern the case unless otherwise ordered by the judge who is presiding by designation. Any final judgment shall be entered by the originating court ... Documents shall be filed with the clerk of the originating court . . . Conferences and hearings may be held in either district. Jury trials shall be held in the district where the case originates unless all parties agree otherwise. Thus, all papers must be filed in the District of Rhode Island and any final judgment must be entered in the District of Rhode Island. Although conferences and hearings may be held in Judge Young's Massachusetts court room, trial must be held in Rhode Island unless the parties agree otherwise and there is no indication in Uniloc's papers that the parties have made any such agreement. Accordingly, Uniloc's Sur-reply provides no basis to deny Defendant's motion to transfer. Judge Smith remains eligible and, given his prior experience with the asserted patent, best suited to evaluate the issues of this case from the standpoint of judicial economy.
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Accordingly. this case should be transferred to the United States District Court for the District of Rhode Island. Respectfully submitted, lsi Tom Henson Tom Henson RAMEY & FLOCK, P.C. Attomeys-at-Law 100 East Ferguson, Suite 500 Tyler, TX 75702 Tel: [phone] Fax: [phone] Email: [e-mail] Gregory S. Gewirtz E-mail: [e-mail] Raymond B. Churchill, Jr. E-mail: [e-mail] LERNER, DAVID, LITTENBERG, KRUMHOLZ & MENTLIK, LLP 600 South Avenue West Westfield, NJ 07016 Tel: [phone] Fax: [phone]

Dated: February 17, 2011

Attorneys for Defendants Sony Corporation ofAmerica and Sony DADC US, Inc. lsi Megan J. Redmond Basil Trent Webb Email: [e-mail] Brittany A. Boswell [e-mail] Megan J. Redmond [e-mail] Patrick A. Lujin [e-mail] SHOOK HARDY & BACON, 2555 Grand Blvd Kansas City, MO 64108 Tel: [phone] Fax: [phone]

LLP

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Melissa Richards Smith [e-mail] GILLAM & SMITH, LLP 303 South Washington Avenue Marshall, TX 75670 Tel: [phone] Fax: [phone] Attorneys for Defendants Activision Blizzard, Inc. and Quark, Inc. /s/ John M. Guaragna John M. Guaragna [e-mail] Brian K. Erickson [e-mail] DLA PIPER US, LLP 401 Congress Ave Suite 2500 Austin, TX 78701 Tel: [phone] Fax: [phone] Attorneys for Defendants Borland Corp. and Aspyr Media, Inc. /s/ Eric B. Hall Christopher Robert Benson [e-mail] FULBRIGHT & JAWORSKI, 600 Congress Suite 2400 Austin, TX 78701 Tel: [phone] Fax: [phone] Eric B. Hall [e-mail] Daniel S. Leventhal [e-mail] Daniel Alejandro Prati [e-mail] FULBRIGHT & JAWORSKI, 1301 McKinney Suite 5100 Houston, TX 77010

LLP

LLP

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Tel: [phone] Fax: [phone]
Attorneys for Defendant McAfee, Inc. 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 will be served by facsimile transmission andlor first class mail this 1i h day of February, 2011.

lsi Tom Henson

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