Microsoft Corporation v. Motorola Inc

Filing 34

STIPULATION AND ORDER TO STAY ACTION by Judge Ricardo S Martinez. (RS)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 STIPULATION MOTOROLA, INC., and MOTOROLA MOBILITY, INC., Defendants. v.

The Honorable Ricardo S. Martinez

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE MICROSOFT CORPORATION, CASE NO. C10-01577-RSM Plaintiff, STIPULATION AND ORDER TO STAY ACTION

Plaintiff Microsoft Corporation and Defendants Motorola, Inc., and Motorola Mobility, Inc., collectively ("the Parties"), by and through their respective counsel of record, hereby stipulate and agree as follows: 1. Pursuant to 28 U.S.C. § 1659, the Parties stipulate to a stay of proceedings in the

above-captioned matter pending a final determination of the United States International Trade Commission ("ITC") in In the Matter of Certain Mobile Devices, Associated Software, and Components Thereof, Investigation No. 337-TA-744. 2. On October 1, 2010, Plaintiff Microsoft Corporation ("Microsoft") filed a

Complaint in this matter. Five days later, on October 6, 2010, Microsoft filed an Amended Complaint, which added Motorola Mobility, Inc. ("Motorola Mobility") as a defendant. Microsoft served its Amended Complaint on Motorola, Inc. ("Motorola") on October 8, 2010 and on
STIPULATION AND ORDER TO STAY ACTION - 1 CASE NO. C10-01577-RSM

SUMMIT LAW GROUP PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000 SEATTLE, WASHINGTON 98104-2682 Telephone: [phone] Fax: [phone]

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Motorola Mobility on October 28, 2010. In a Stipulation filed on October 27, 2010, the Parties agreed that Motorola and Motorola Mobility's deadline to answer or otherwise move the Court for relief in this action should be extended from October 29, 2010 to November 22, 2010. The Court so Ordered this extension on November 1, 2010. ECF No. 32. 3. The Amended Complaint alleges that Motorola and Motorola Mobility have

infringed, either directly or indirectly, nine Microsoft patents: U.S. Patent Nos. 5,579,517; 5,758,352; 6,621,746; 6,826,762; 6,909,910; 7,644,376; 5,665,133; 6,578,054; and 6,370,566. See Amended Complaint, ¶¶ 11-12, 14-15, 17-18, 20-21, 23-24, 26-27, 29-30, 32-33, and 35-36. The same day Microsoft filed its initial Complaint in this action--October 1, 2010--it also filed a Complaint with the ITC against Motorola and in connection with the same nine Microsoft patents, asserting that Motorola has infringed these patents and has therefore engaged in unfair competition or violated Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337. 4. Eleven days later, on October 12, 2010, Microsoft amended its ITC Complaint to

add Motorola Mobility as a respondent. On November 1, 2010, the ITC instituted an investigation based on the Amended Complaint and formally named Motorola and Motorola Mobility as respondents. Thus, at present, Motorola and Motorola Mobility are both defendants in this civil action and respondents in the ITC proceeding. 5. 28 U.S.C. § 1659(a) provides that "[i]n a civil action involving parties that are also

parties to a proceeding before the [ITC] under section 337 of the Tariff Act of 1930, at the request of a party to the civil action that is also a respondent in the proceeding before the Commission, the district court shall stay, until the determination of the Commission becomes final, proceedings in the civil action with respect to any claim that involves the same issues involved in the proceeding before the commission," so long as "such request is made within (1) 30 days after the party is named as a respondent in the proceeding before the Commission, or (2) 30 days after the district court action is filed, whichever is later." 28 U.S.C. § 1659(a) (emphasis added). Motorola and Motorola Mobility are parties to the above-captioned civil action and also the respondents in In the
STIPULATION AND ORDER TO STAY ACTION - 2 CASE NO. C10-01577-RSM

SUMMIT LAW GROUP PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000 SEATTLE, WASHINGTON 98104-2682 Telephone: [phone] Fax: [phone]

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Matter of Certain Mobile Devices, Associated Software, and Components Thereof, an ITC proceeding involving the same issues involved here--the putative infringement of nine Microsoft patents. 6. This requested stipulation is timely. The 30-day period under 28 U.S.C.

§ 1659(a)(1) did not begin to run until November 1, 2010--the day Motorola and Motorola Mobility were "named as [] respondent[s] in the proceeding before the Commission." 28 U.S.C. § 1659(a)(1); see 19 C.F.R. § 210.3 (defining "respondent" as "any person named in a notice of investigation"). 7. that: A. Pursuant to 28 U.S.C. § 1659(a) et seq. and the Court's inherent power to Accordingly, the Parties respectfully request that the Court enter an Order directing

control its docket, this civil action is stayed until a final determination of the ITC proceeding in In the Matter of Certain Mobile Devices, Associated Software, and Components Thereof, Investigation No. 337-TA-744; B. The deadline for Motorola and Motorola Mobility to move, answer, or

otherwise respond to the Amended Complaint is vacated; and C. Within 30 days of a final determination of the ITC proceeding in In the

Matter of Certain Mobile Devices, Associated Software, and Components Thereof, Investigation No. 337-TA-744, and the associated expiration of this stay, the Parties shall confer with each other and contact the Court for purposes of setting a Scheduling Order, which shall include the setting of a new deadline for Motorola and Motorola Mobility to move, answer, or otherwise respond to Microsoft's Amended Complaint.

STIPULATION AND ORDER TO STAY ACTION - 3 CASE NO. C10-01577-RSM

SUMMIT LAW GROUP PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000 SEATTLE, WASHINGTON 98104-2682 Telephone: [phone] Fax: [phone]

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DATED this 8th day of November, 2010.
SUMMIT LAW GROUP PLLC By /s/ Philip S. McCune Philip S. McCune, WSBA #21081 Lynn M. Engel, WSBA #21934 [e-mail] [e-mail] And by Edward J. DeFranco (pro hac vice) Quinn Emanuel 51 Madison Avenue, 22nd Floor New York, NY 10010 [phone] [e-mail] Charles K. Verhoeven (pro hac vice) Quinn Emanuel 50 California Street, 22nd Floor San Francisco, CA 94111 [phone] [e-mail] David Nelson (pro hac vice) Quinn Emanuel 500 W. Madison Street, Suite 2450 Chicago, IL 60661 [phone] [e-mail] Attorneys for Defendants Motorola, Inc., and Motorola Mobility, Inc. DANIELSON HARRIGAN LEYH & TOLLEFSON LLP By /s/ Christopher T. Wion Arthur W. Harrigan, Jr., WSBA #1751 Christopher T. Wion, WSBA #33207 [e-mail] [e-mail] T. Andrew Culbert, WSBA #35925 David E. Killough, WSBA #40185 Microsoft Corporation One Microsoft Way Redmond, WA 98052 [phone] [e-mail] [e-mail] Of Counsel: David T. Pritikin Richard A. Cederoth Douglas I. Lewis John W. McBride Sidley Austin LLP One South Dearborn Chicago, IL 60603 [phone] [e-mail] [e-mail] [e-mail] [e-mail] Brian R. Nester Kevin C. Wheeler Sidley Austin LLP 1501 K Street NW Washington, DC 20005 [phone] [e-mail] [e-mail] Attorneys for Plaintiff Microsoft Corporation

STIPULATION AND ORDER TO STAY ACTION - 4 CASE NO. C10-01577-RSM

SUMMIT LAW GROUP PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000 SEATTLE, WASHINGTON 98104-2682 Telephone: [phone] Fax: [phone]

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By /s/ Philip S. McCune Philip S. McCune, WSBA #21081 Lynn M. Engel, WSBA #21934 [e-mail] [e-mail] And by Edward J. DeFranco (pro hac vice) Quinn Emanuel 51 Madison Avenue, 22nd Floor New York, NY 10010 [phone] [e-mail] Charles K. Verhoeven (pro hac vice ) Quinn Emanuel 50 California Street, 22nd Floor San Francisco, CA 94111 [phone] [e-mail] David Nelson (pro hac vice) Quinn Emanuel 500 W. Madison Street, Suite 2450 Chicago, IL 60661 [phone] [e-mail] Attorneys for Defendants Motorola, Inc., and Motorola Mobility, Inc. Presented by: SUMMIT LAW GROUP PLLC

ORDER IT IS SO ORDERED. DATED this 9 day of November 2010.

A

RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE

DANIELSON HARRIGAN LEYH & TOLLEFSON LLP By /s/ Christopher T. Wion Arthur W. Harrigan, Jr., WSBA #1751 Christopher T. Wion, WSBA #33207 [e-mail] [e-mail] T. Andrew Culbert, WSBA #35925 David E. Killough, WSBA #40185 Microsoft Corporation One Microsoft Way Redmond, WA 98052 [phone] [e-mail] [e-mail] And by David T. Pritikin Richard A. Cederoth Douglas I. Lewis John W. McBride Sidley Austin LLP One South Dearborn Chicago, IL 60603 [phone] [e-mail] [e-mail] [e-mail] [e-mail] Brian R. Nester Kevin C. Wheeler Sidley Austin LLP 1501 K Street NW Washington, DC 20005 [phone] [e-mail] [e-mail]

Attorneys for Plaintiff Microsoft Corporation
STIPULATION AND ORDER TO STAY ACTION - 5 CASE NO. C10-01577-RSM

SUMMIT LAW GROUP PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000 SEATTLE, WASHINGTON 98104-2682 Telephone: [phone] Fax: [phone]