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)

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 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
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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: [phone]
Fax: [phone]

/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)

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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]

[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]
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 18th day
of January, 2013.
/s/ Ajeet P. Pai
Ajeet P. Pai

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