Personal Audio, LLC v. XM Satellite Radio, Inc.

Filing 15

RESPONSE to Motion re 7 MOTION to Dismiss (XM Satellite Radio Inc.'s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)) Personal Audio, LLC's Response to Defendant's Motion to Dismiss and Cross-Motion to Consolidate filed by Personal Audio, LLC. (Attachments: # 1 Affidavit Declaration of Cyrus A. Morton, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(Goehringer, Charles)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS LUFKIN DIVISION ) ) ) ) ) ) ) ) ) ) )

Personal Audio, LLC, Plaintiff, v. XM Satellite Radio, Inc., Defendant.

Case 9:10-cv-00035-RC

DECLARATION OF CYRUS A. MORTON I, Cyrus A. Morton, declare and state as follows: 1. I am an attorney at law, duly licensed to practice before all courts in the State of

Minnesota, and admitted to practice in the Eastern District of Texas. I am a member of the firm of Robins, Kaplan, Miller & Ciresi L.L.P., attorneys of record for Personal Audio, LLC. As such, I am one of the attorneys charged with full file responsibility for the prosecution of this action and am fully familiar with the facts and circumstances hereof. If called as a witness I could competently testify to the following based upon my own personal knowledge. 2. Attached as Exhibit A is a true and correct copy of the Order in Orion IP, LLC v.

Home Depot USA, Inc., No. 2:05-CV-306 (Dkt.#42) (E.D. Tex. Oct. 7, 2005). 3. Attached as Exhibit B is a true and correct copy of excerpts from the transcript of

the Status Conference before this Court on May 10, 2010. 4. Attached as Exhibit C is a true and correct copy of the Order Denying Plaintiff's

Motion to Amend and Motion to Consolidate in Personal Audio, LLC v. Apple, Inc., No. 9:09CV-111 (Dkt.#127) (E.D. Tex. May 13, 2010).

1

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 19th day of May, 2010, in Minneapolis, Minnesota.

By: /s/ Cyrus A. Morton Cyrus A. Morton Declarant

2