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)

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.

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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
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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.

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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: [phone]
Fax: [phone]
[e-mail]
[e-mail]

/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: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Chuck P. Ebertin (CA Bar No. 161374)
VINSON & ELKINS LLP
525 University Avenue, Suite 410
Palo Alto, CA 94301-1918
Tel: [phone]

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Fax: [phone]
[e-mail]
Steve R. Borgman (TX Bar No. 02670300)
VINSON &ELKINS LLP
1001 Fannin Street, Suite 2500
Houston, TX 77002-6760
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
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

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