I/P Engine, Inc. v. AOL, Inc. et al

Filing 988

Memorandum in Support re 987 MOTION to Strike 986 Response in Support of Motion (Defendants Motion To Strike Plaintiffs Reply In Support Of Motion To Show Cause) (Memorandum of Law in Support of Defendants Motion To Strike Plaintiffs Reply In Support Of Motion To Show Cause) filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

I/P ENGINE, INC.
Plaintiff,
v.

Civil Action No. 2:11-cv-512

AOL, INC., et al.,
Defendants.

DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO STRIKE
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO SHOW CAUSE
Apparently, no good deed goes unpunished. Along with its August 29 Motion to Show
Cause, Plaintiff filed a Motion to Shorten Time, requesting that Defendants respond to the
Motion to Show Cause just 3 business days later – on September 4, 2013. (D.I. 981.) In return,
Plaintiff stated that it “will waive its right to reply to Defendants’ response.” (Id. at 2) (emphasis
added).
The next day, despite the fact that Plaintiff rushed to file its motion instead of engaging
with Defendants in good faith regarding Plaintiff’s (unjustified) requests for additional
discovery, Defendants informed Plaintiff that they would agree to Plaintiff’s expedited briefing
schedule. Indeed, at Plaintiff’s insistence, Plaintiff’s counsel Donald Schultz and Defendants’
counsel Stephen Noona jointly called this Court’s Courtroom Clerk, Ms. Patrice Thompson, and
left a voice message that Defendants would respond on an expedited basis by the date Plaintiff
requested. Specifically, the message confirmed that Defendants agreed to file their Opposition to
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the Motion to Show Cause by September 4. (Noona Decl., ¶ 4.) Defendants did file their
Opposition on September 4 – instead of taking the full 11 days allowed under Local Rule 7 – by
working diligently over the Labor Day weekend to meet Plaintiff’s schedule. (D.I. 982.)
Yet, eight days later, on September 12 – after securing the benefit of Defendants’
expedited response, without meeting and conferring with Defendants, and despite explicitly
waiving its Reply if Defendants filed their Opposition on an expedited basis – Plaintiff took
advantage of the situation and filed a Reply. (D.I. 986.) Like Plaintiff’s Motion to Show Cause,
Plaintiff’s Reply is mostly an exercise in heated rhetoric and hyperbole aimed at Google.1 (See
D.I. 986 at 2 (“Plainly that must have been an empty offer [by Google]”); id. at 3 (“Google
claims to be the good guy.”)) Given that Plaintiff waived its right to a Reply in light of the
expedited briefing schedule, Defendants asked Plaintiff to withdraw the Reply. Plaintiff refused,
claiming now that its offer to waive Reply was premised on the Court granting a prompt hearing
on the Motion to Show Cause, and that hearing had not occurred. (Noona Decl., Ex. 1.) But the
language of the Motion to Shorten Time makes clear that Plaintiff’s offer to waive its Reply was
not contingent upon an oral hearing; Plaintiff merely requested one. (D.I. 981 at 2.) And
certainly at no point did Plaintiff indicate to Defendants that Plaintiff’s waiver of a Reply was
contingent on Plaintiff’s view as to whether the Court held a hearing fast enough.
Plaintiff’s reneging on its commitment to waive a Reply is bad enough, and alone
justifies striking Plaintiff’s Reply. But Plaintiff’s tactics are even more egregious when one
considers the unfairness that these tactics created in the briefing schedule for the Motion to Show
Cause. Defendants were forced to work very hard over the Labor Day weekend to prepare their
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Unfortunately, such rhetoric from Plaintiff has pervaded its filings throughout this
case. (See, e.g., D.I. 979 at 2 (“Google seeks to play discovery games”); 5 (delay is “Google’s
modus operandi;”); D.I. 201 at 2 (accusing Google of “sandbagging” in its assertion of prior
art).)
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Opposition Brief by the September 4 response deadline. The only quid pro quo for this
shortened timeframe was Plaintiff’s agreement to waive its Reply. Yet Plaintiff not only filed a
Reply, but it filed this Reply a full eight days later, a longer timeframe than Plaintiff demanded
for Defendants’ Opposition.
Plaintiff must be accountable for its own commitments and actions. Here, Plaintiff
committed to not filing a Reply and induced Defendants to dramatically shorten the briefing
schedule on the strength of that commitment. Plaintiff must be held to its commitment,
regardless of whether the Court does nor does not set a hearing. Certainly, Plaintiff cannot use
the Court’s decision on when or if to hold a hearing in Plaintiff’s requested timeframe as an
excuse to nullify Plaintiff’s commitments and representations to the Court and Defendants. Not
striking Plaintiff’s Reply will only encourage similar conduct by Plaintiff in the future.
For the foregoing reasons, Defendants respectfully request that the Court strike Plaintiff’s
Reply in Support of its Motion to Show Cause, and whatever further relief the Court feels
justified, including Defendants’ fees in briefing this motion.

DATED: September 13, 2013

/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
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San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Counsel for Google Inc., Target Corporation,
IAC Search & Media, Inc., and Gannett Co., Inc.

/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: [phone]
Facsimile: [phone]
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendant AOL Inc.

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CERTIFICATE OF SERVICE
I hereby certify that, on September 13, 2013, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF)
to the following:
Jeffrey K. Sherwood
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiff, I/P Engine, Inc.

/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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