WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 292

SUR-REPLY to Reply to Response to Motion re 275 SEALED MOTION for Leave to Supplement the Ericsson and Sony Mobile Defendants' Summary-Judgment Briefing filed by WI-LAN Inc.. (Pai, Ajeet)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION WI-LAN INC., Plaintiff, v. ALCATEL-LUCENT USA INC.; et al. Defendants. § § § § § § § § § § Civil Action No. 6:10-cv-521-LED JURY TRIAL DEMANDED PLAINTIFF WI-LAN INC.’S SUR-REPLY IN OPPOSITION TO THE ERICSSON AND SONY MOBILE DEFENDANTS’ MOTION FOR LEAVE TO SUPPLEMENT SUMMARY JUDGMENT BRIEFING Defendants’ Reply (Dkt. No. 286) fails to demonstrate good cause for their failure to meet the Court’s Deadlines by at least two months. Accordingly, for the reasons set forth in WiLAN’s oppositions (Dkt. Nos. 283, 285), their Motion for leave to file a new summary judgment motion should be denied. ARGUMENT A. The Court’s Standing Order Applies In This Case. Rather than offer a reasonable explanation for their failure to seek an extension of time to comply with the Court’s deadlines regarding summary judgment letter briefs, Defendants now incredibly contend that the Court’s Standing Order does not apply in this case. But this argument is flatly inconsistent with the actions of the parties. (Reply at 2-3.) On November 4, 2011, Ericsson and Sony Mobile filed letter briefs seeking the Court’s permission to file summary judgment motions “[i]n accordance with the Court’s Standing Order.” (Dkt. Nos. 132 at 1, 133 at 1.) Wi-LAN similarly filed letter briefs. (Dkt. Nos. 140, 141.) Thus, the parties clearly recognized that the Standing Order was in effect. The Court’s resulting Order granting Page 1 permission to file summary judgment motions resolved any ambiguity as to whether the Standing Order was applicable to this case: “The Court has a standing order requiring leave of the Court before any motion for summary judgment may be filed.” (Dkt. No. 143.) In addition, Defendants offer no plausible reason why the deadlines contained in that Order would somehow not be applicable, despite their recognition that the Order’s other requirements (such as letter briefing) applied. At the time Defendants filed their letter briefs, the dispositive motions deadline was November 16, 2012, nearly a year in the future. The Court later extended that deadline to December 7, 2012 (and hence extended the letter briefing deadline by three weeks as well). (Dkt No. 214, 216.) At no point did the dispositive motions deadline contained in the Docket Control Order change in a manner that would have placed the date for letter briefing in the past or otherwise created an impossible deadline. Rather, Defendants simply failed to observe that deadline or seek an extension of time to comply from the Court, despite being aware that the Standing Order applied. B. Defendants’ Proposed Filing Is a New Motion For Summary Judgment. Defendants claim that their proposed filing merely supplements their existing summary judgment briefing. It does not. Notably, Defendants fail to address how a proposed filing that expressly contends that an “additional issue must be decided” is a mere supplement to an existing motion. (See Dkt. No. 275, Ex. 1 at 3; see also Dkt. 283 at 4-5.) Moreover, the proposed filing relates to a distinct contractual provision, relies upon an entirely different legal theory, is based on separate and distinct allegations of fact, and seeks dramatically different relief. (See Dkt. 283 at 4-5.) Such a motion is no mere “supplement,” but rather a new summary judgment motion filed long after the Court’s deadline to seek leave. Page 2 CONCLUSION Defendants seek to file a new motion for summary judgment two months after the deadline to seek leave of Court to file such motions, yet offer no reasonable explanation for their failure to comply with the Court’s Orders or the prejudice to Wi-LAN that would result. Accordingly, for the reasons set forth above, as well as the reasons contained in Wi-LAN’s oppositions, Wi-LAN respectfully requests that the Court deny Defendants’ Motion for Leave. Dated: January 14, 2013 Respectfully submitted, By: Local Counsel Johnny Ward (TX Bar No. 00794818) Wesley Hill (TX Bar No. 24032294) WARD & SMITH LAW FIRM P.O. Box 1231 1127 Judson Rd., Ste. 220 Longview, TX 75606-1231 Tel: (903) 757-6400 Fax: (903) 757-2323 jw@jwfirm.com wh@jwfirm.com /s/ Ajeet P. Pai David B. Weaver (TX Bar No. 00798576) Lead Attorney Avelyn M. Ross (TX Bar No. 24027817) Ajeet P. Pai (TX Bar No. 24060376) Syed K. Fareed (TX Bar No. 24065216) Jeffrey T. Han (TX Bar No. 24069870) Janice Ta (TX Bar No. 24075138) Seth A. Lindner (TX Bar No. 24078862) VINSON & ELKINS LLP 2801 Via Fortuna, Suite 100 Austin, TX 78746 Tel: (512) 542-8400 Fax: (512) 542-8612 dweaver@velaw.com aross@velaw.com apai@velaw.com sfareed@velaw.com jhan@velaw.com jta@velaw.com slindner@velaw.com Chuck P. Ebertin (CA Bar No. 161374) VINSON & ELKINS LLP 525 University Avenue, Suite 410 Palo Alto, CA 94301-1918 Tel: (650) 687-8204 Page 3 Fax: (650) 618-8508 cebertin@velaw.com Steve R. Borgman (TX Bar No. 02670300) VINSON &ELKINS LLP 1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 Tel: (713) 758-2222 Fax: (713) 758-2346 sborgman@velaw.com Wi-LAN@velaw.com Attorneys for Plaintiff, Wi-LAN 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 document was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A), on this the 14th day of January, 2013. /s/ Ajeet P. Pai Ajeet P. Pai Page 4

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