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

Filing 297

SUR-REPLY to Reply to Response to Motion re 277 MOTION for Leave to File Two Letter Briefs Requesting Permission to File Certain Motions 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 DEFENDANTS’ MOTION FOR LEAVE TO FILE TWO LETTER BRIEFS REQUESTING PERMISSION TO FILE CERTAIN MOTIONS Rather than offer any reasonable explanation for their failure to meet the Court’s longstanding deadlines, Defendants’ Reply (Dkt. No. 289) instead reiterates their unsupported belief that following the Court’s Docket Control Order constitutes litigation by “gotcha.” (Dkt. 289 at 2.) Defendants again argue that they did not believe that the Standing Order’s deadlines applied in this case in light of the “impracticability of the same.” (Id.) Notably absent from Defendants’ Reply, however, is any plausible explanation of why it would have been impracticable to timely file letter briefs in accordance with the Court’s Order, or, at the very least, seek an extension of time to do so. 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. Defendants simply did not observe the deadline. As the sole example of purported impracticability offered in their Reply, Defendants incorrectly argue that they could not have filed their letter brief regarding invalidity until WiLAN’s rebuttal report was filed. (Reply at 3.) Yet when Wi-LAN specifically asked Defendants in November whether that rebuttal report was the basis for their contention that their untimely Page 1 briefs should be permitted, Defendants chose not to engage the issue. (Dkt. 285 at 9.) Defendants should not now be heard to justify their decision to ignore the Court’s deadline on that ground. With regard to whether Defendants have been diligent, is telling that Defendants still did not promptly file their proposed letter briefs after all of Wi-LAN’s expert reports were served. Indeed, Defendants refused to file their proposed letters on December 7, 2012, along with their Motion for Leave to file letter briefs, despite Local Rule CV-7(k)’s requirement that they be filed simultaneously. (See Dkt. No. 285 at 5; Local Rule CV-7(k).) Rather than file those letter briefs on December 7, 2012, Defendants chose to provide themselves with an additional unilateral three-week extension of time, waiting until January 4, 2013 to file the second of their two letter briefs nearly three months late. (Dkt. Nos. 277, 287.) As with their failure to meet the Court’s original deadline, Defendants offer no plausible excuse for their continuing noncompliance with the Court’s Orders and Local Rules. Accordingly, for the reasons set forth above, as well as the reasons contained in WiLAN’s opposition (Dkt. No. 285), Wi-LAN respectfully requests that the Court deny Defendants’ Motion for Leave. Dated: January 18, 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 /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) Page 2 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 jw@jwfirm.com wh@jwfirm.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 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 18th day of January, 2013. /s/ Ajeet P. Pai Ajeet P. Pai Page 3

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