American Patents LLC v. Mediatek, Inc. et al

Western District of Texas, txwd-6:2018-cv-00339

Opposed MOTION to Strike 135 Response in Opposition to Motion, PLAINTIFF'S UNTIMELY OPPOSITION TO MOTION FOR PROTECTIVE ORDER, RECONSIDERATION, AND STAY(DKT. 125) by Lenovo (Shanghai) Electronics Technology Co. Ltd., Lenovo Group Ltd.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION AMERICAN PATENTS LLC, CIVIL ACTION NO. 6:18-CV-339-ADA Plaintiff, v. MEDIATEK INC., MEDIATEK USA INC., BROADCOM PTE. LTD., BROADCOM CORPORATION, LENOVO (SHANGHAI) ELECTRONICS TECHNOLOGY CO. LTD., LENOVO GROUP, LTD., NXP SEMICONDUCTORS N.V., NXP B.V., NXP USA, INC., QUALCOMM INCORPORATED and QUALCOMM TECHNOLOGIES, INC., Defendants. SPECIALLY APPEARING LENOVO DEFENDANTS' OPPOSED MOTION TO STRIKE PLAINTIFF'S UNTIMELY OPPOSITION TO MOTION FOR PROTECTIVE ORDER, RECONSIDERATION, AND STAY (DKT. 125) Plaintiff's opposition brief, which was due on July 24, 2019 pursuant to Local Rule CV- 7(e)(2) but filed on July 31, 2019, is unacceptably late and should be stricken. The Court should exercise its discretion pursuant to CV-7(e)(2) to grant as unopposed the Lenovo Defendants' Motion for Protective Order, Reconsideration, and Stay (Dkt. 125, "Motion"). I. PLAINTIFF'S OPPOSITION TO THE MOTION IS LATE Under CV-7(e)(2), "A response to a nondispositive motion shall be filed not later than 7 days after the filing of the motion. If there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed." Under CV-7(c), "a 'dispositive motion' is a motion to dismiss, a motion for judgment on the pleadings, a motion for summary judgment or partial summary judgment, a motion for new trial, or a motion for judgment as a matter of law," none of which apply here. The Lenovo Defendants' Motion is a nondispositive motion (see CV-7(c)), which was filed on July 17, 2019. Plaintiff's opposition was therefore due on July 24, 2019. Id. Plaintiff did not file any opposition until July 31, 2019. (Dkt. 135.) Consequently, because "there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed." CV-7-2(e). On July 29, 2019, the Lenovo Defendants filed a notice with the Court, Dkt. 130, notifying the Court that Plaintiff had not filed an opposition. Plaintiff filed a response, positing that because the Motion was filed under seal, the opposition deadline would begin to run only after the Court granted sealing and the Clerk filed the sealed Motion. (Dkt. 131 ("Lenovo's sealed motion for reconsideration was not filed by the clerk until Friday, July 26—one court day ago. Dkt. 128. So the deadline to respond to that motion is not until this Friday, August 2."). Plaintiff's position is incorrect for the reasons articulated below. The parties met and –1– conferred and were unable to resolve this dispute without motion practice because Plaintiff disagrees that its opposition was late. II. THE DEADLINE TO OPPOSE THE MOTION WAS NOT BASED ON WHEN THE COURT GRANTED SEALING OF THAT MOTION Plaintiff makes an argument that may be unprecedented—that the granting of a motion to seal controls the timing of a response to the underlying motion. Plaintiff's interpretation would mean that for any motion (whether for summary judgment, to dismiss, for a new trial, or anything else), if it is filed under seal, then the response deadline shifts according to when the Court grants the sealing motion. Plaintiff's position is nonsensical and must be rejected. First, CV-7(b), which Plaintiff relies on, does not apply here. This rule governs the procedure for requesting leave to file a submission that is not otherwise authorized by the Court or other applicable rules, such as a surreply. The full text of CV-7(b) makes this clear: Leave to File. When a motion for leave to file a pleading, motion, or other submission is required, an executed copy of the proposed pleading, motion, or other submission shall be filed as an exhibit to the motion for leave. Unless otherwise ordered, if the motion for leave is granted, the clerk shall promptly file the pleading, motion, or other submission. After leave is granted, any applicable time limits triggered by the pleading, motion, or other submission shall run from the filing of the pleading, motion, or other submission by the clerk or otherwise. (Emphasis in bold italics added.) The Lenovo Defendants were not "required" to obtain leave to file the Motion, because it was authorized by at least F.R.C.P. 26 and 54. Accordingly, the Lenovo Defendants did not seek prior leave to file the Motion under CV-7(b). –2– Notably, this case does already have examples of applicable use of CV-7(b). Plaintiff, for example, sought leave under CV-7(b) to file a surreply to the Lenovo Defendants' Motion to Sever and Stay. (See Dkt. 93.) That any deadline for a response to such submission runs only after "leave is granted" under CV-7(b) makes eminent sense—until then, the requester's ability to file the submission (that triggers any response) is not even known. Second, motions to seal are expressly governed in the first instance by a different rule, CV- 5.2, not CV-7(b). Local Rule CV-5.2 is titled "DOCUMENTS FILED UNDER SEAL," and lays out detailed multipart requirements for filing any document under seal. Subpart (d) of CV-5.2 defines precisely the effects of the Court's granting of a sealing motion: If the court grants a sealing motion, the clerk will keep the sealed document under seal unless and until otherwise ordered by the court, and, if appropriate, the clerk shall link the sealed document to its associated pleading, motion, or other submission. The court may order that the sealing motion, without the sealed document, be unsealed. If the court denies a sealing motion, the clerk, on order of the court, shall delete the sealed document. Nowhere does CV-5.2(d) say that such granting triggers time limits for the underlying motion. See id. Nor does this provision cross-refer to CV-7. By contrast, subpart (c) of CV-5.2, which provides requirements regarding the contents of a motion to seal, does cross-refer to CV-7. See CV-5.2(c) ("The sealing motion and the accompanying sealed document must be filed under seal, state the factual basis for the requested sealing order, and otherwise comply with the requirements of Rules CV-7 and CV-10 and the procedures governing electronic or paper filings, as applicable to the submission."). –3– Third, for the Court to accept Plaintiff's contorted interpretation of CV-7(b) would create intolerable ambiguity in the timing of routine motion practice going forward. When a motion is filed, it is critical for a responding party, as well as the Court, to predictably calculate the deadline to respond. This also permits the Court to more efficiently control the scheduling and administration of the case. The notion that a deadline to respond to a motion can vary, based on when the Court decides it can be sealed, makes no sense. Fourth, there is no countervailing benefit or any other justification for Plaintiff's interpretation. The responding party is served with the sealed version of the underlying motion on the same day that it is filed under seal. I.e., the sealed version is not withheld from the responding party pending a ruling on the motion to seal. Consequently, the responding party can immediately commence preparation of the response, without awaiting any ruling on the motion to seal. There is absolutely no reason—and Plaintiff has identified none—why a responding party's deadline to a motion should depend on when the Clerk files the sealed version of that motion. III. PLAINTIFF'S OPPOSITION IS LATE EVEN UNDER ITS OWN INCORRECT INTERPRETATION OF TIMING REQUIREMENTS Plaintiff contends that its 7-day deadline to oppose started running from the time the "sealed motion for reconsideration was[] filed by the clerk [on] Friday, July 26," so "the deadline to respond to that motion is not until this Friday, August 2." (Dkt. 131.) But the Clerk filed the sealed Motion on July 19, 2019, at Dkt. 128, not on July 26. Below is a snapshot of the case docket, calling out the July 19, 2019 filing date in a red box: –4– An ECF notification was sent out on July 26, 2019, confirming that the Clerk filed the Motion under seal on July 19, 2019 at Dkt. 128, as reflected by the snapshot below and called out in the red box: Consequently, even under Plaintiff's theory that "the clerk [] files the motion[] [and] [o]nly then does the time to respond begin to run," the Clerk's filing took place on July 19, 2019, meaning the 7-day deadline would fall on July 26, 2019. Plaintiff did not file its opposition brief until July –5– 31, 2019. (Dkt. 135.)1 IV. PERMITTING PLAINTIFF'S OPPOSITION WOULD BE UNFAIR Plaintiff could have acknowledged its failure to timely oppose, provided a genuine reason for that failure (such as neglect, or misreading of the rules), and requested that this Court accept its late-filed brief. Instead, Plaintiff made up an absurd interpretation of CV-7(b) (see Section II, supra), which Plaintiff did not even comply with (see Section III, supra). Notably, this is not the first time Plaintiff has flouted Court rules. (See Dkt. 94 (Plaintiff filing a supplemental brief that exceeded maximum length of briefs on dispositive motions); id. (Plaintiff including supplemental briefing on service even though it was not authorized by the Court).) Respectfully, Plaintiff should not be permitted to further flout the rules of this Court. The Court should strike Plaintiff's late-filed opposition brief, and grant as unopposed the Lenovo Defendants' Motion for Protective Order, Reconsideration, and Stay (Dkt. 125). 1 In response, Plaintiff may argue that it is not the Clerk's actual filing date that counts, but the date of the ECF notification. This would contradict Plaintiff's own argument. (See Dkt. 131 (Plaintiff's argument: "Under Local Rule CV-7(b), when a party seeks leave to file a motion—as Lenovo did here—and that motion is granted, the clerk then files the motion. Only then does the time to respond begin to run. . . .") (emphasis added). It would also show Plaintiff's position is not grounded in any sincere interpretation of CV-7(b). Finally, it would underscore why Plaintiff's interpretation would wreak havoc on time computations for motions. Does it run from the Clerk's actual filing of the sealed motion, or the ECF notification of such? Plaintiff seems incapable of even deciding for itself. –6– Dated: August 1, 2019 Respectfully submitted, /s/ Eric H. Findlay Eric H. Findlay Texas State Bar No. 00789886 FINDLAY CRAFT 102 North College Avenue, Suite 900 Tyler, TX 75702 (903) 534-1100 (903) 534-1137 (Fax) Martin Bader (Admitted Pro Hac Vice) Michael J. Hopkins (Admitted Pro Hac Vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 12275 El Camino Real, Suite 200 San Diego, CA 92130-4092 (858) 720-8900 (858) 509-3691 (Fax) Lai L. Yip (Admitted Pro Hac Vice) SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Four Embarcadero Center, 17th Floor San Francisco, CA 94111 (415) 434-9100 (415) 434-3947 (Fax) Attorneys for Specially Appearing Defendants Lenovo (Shanghai) Electronics Technology Co., Ltd. and Lenovo Group Ltd. –7– CERTIFICATE OF SERVICE I hereby certify that on August 1, 2019, a true and correct copy of the foregoing SPECIALLY APPEARING LENOVO DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S UNTIMELY OPPOSITION TO MOTION FOR PROTECTIVE ORDER, RECONSIDERATION, AND STAY (DKT. 125) was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may access this filing through the Court's electronic filing system. /s/Eric H. Findlay Eric H. Findlay –8–