Ixi Mobile (R&D) Ltd. et al v. Apple, Inc.

Northern District of California, cand-4:2015-cv-03755

LETTER addressed to Judge Richard J. Sullivan from Harrison J. Frahn IV dated 7/24/2015 re: Apple's requests to transfer/stay. Document filed by Apple, Inc.

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SIMPSON THACHER & BARTLETT LLP 2475 HANOVER STREET PALO ALTO, CA 94304 (650) 251-5000 FACSIMILE (650) 251-5002 DIRECT DIAL NUMBER E-MAIL ADDRESS (650) 251-5065 hfrahn@stblaw.com VIA ECF AND EMAIL (SULLIVANNYSDCHAMBERS@NYSD.USCOURTS.GOV) July 24, 2015 Re: IXI Mobile (R&D) Ltd. and IXI IP, LLC v. Apple Inc., 14-cv-7954 (RJS) Honorable Richard J. Sullivan United States District Judge Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Dear Judge Sullivan: Apple respectfully submits the enclosed order issued in In re Google Inc., No. 2015-138 (Fed. Cir. July 16, 2015) in further support of Apple's requests to transfer and to stay this action (Dkt. Nos. 27-28 and 59). In this non-precedential opinion, the Court of Appeals for the Federal Circuit stresses the importance of addressing motions to transfer at the outset of litigation and acknowledges that allowing the parties to engage in discovery, take depositions, and proceed with claim construction may thwart the interests of judicial efficiency that 28 U.S.C. § 1404(a) was intended to promote. As set out in Apple's pre- motion letter seeking a stay (Dkt. No. 59), claim construction briefing is already underway and several related depositions have since been scheduled. Thank you for your consideration. Respectfully submitted, /s/ Harrison J. Frahn IV Harrison J. Frahn IV BEIJING HONG KONG HOUSTON LONDON LOS ANGELES NEW YORK S ÃO P A U L O SEOUL TOKYO WASHINGTON, D.C. SIMPSON THACHER & BARTLETT LLP Honorable Richard J. Sullivan -2- July 24, 2015 Enclosure cc: Thomas Steven Biemer, Esq. Gregory A. Blue, Esq. Joshua D. Wolson, Esq. John J. Higson, Esq. Marshall Beil, Esq. Jason W. Cook, Esq. Brian C. Riopelle, Esq. Derek H. Swanson, Esq. Gregory S. Arovas, Esq. Todd M. Friedman, Esq. James E. Marina, Esq. David Rokach, Esq. James Henry McConnell, Esq. Mark W. Halderman, Esq. Case Case: 4:15-cv-03755-HSG 15-138 Document: Document 16 Page: 65 Filed 1 07/24/15 Filed: 07/16/2015 Page 3 of 6 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ In re: GOOGLE INC., Petitioner ______________________ 2015-138 ______________________ On Petition for Writ of Mandamus to the United States District Court for the Eastern District of Texas in No. 2:14-cv-00760-JRG-RSP, Magistrate Judge Roy S. Payne. ______________________ ON PETITION ______________________ Before NEWMAN, LINN, and O'MALLEY, Circuit Judges. NEWMAN, Circuit Judge. ORDER Google Inc. seeks a writ of mandamus to direct the United States District Court for the Eastern District of Texas to stay proceedings and rule on Google's pending motion to transfer venue. This petition arises out of a patent infringement suit filed against Google by Brite Smart Corp. in July 2014, which was assigned to a magistrate judge. On October 24, 2014, Google moved to transfer the case to the United States District Court for the Northern District of Califor- Case Case: 4:15-cv-03755-HSG 15-138 Document: Document 16 Page: 65 Filed 2 07/24/15 Filed: 07/16/2015 Page 4 of 6 2 IN RE: GOOGLE INC. nia. The magistrate judge received Brite Smart's re- sponse on November 10, 2014, and Google's reply and Brite Smart's surreply by December 1, 2014, but has yet to rule on the motion. Nonetheless, the magistrate judge has ordered the parties to engage in extensive discovery, including the taking of depositions and exchanging in- fringement and invalidity contentions, and held a Mark- man hearing. At times, a lengthy delay in ruling on a request for re- lief can amount to a denial of the right to have that re- quest meaningfully considered. See, e.g., Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990) (granting a petition for a writ of mandamus because the "delay in this [habeas corpus] case for no reason other than docket congestion [wa]s impermissible"); Pub. Citizen Health Research Grp. v. Comm'r, Food & Drug Admin., 740 F.2d 21, 32 (D.C. Cir. 1984) ("At some point administrative delay amounts to a refusal to act. . . .") (internal quota- tion marks and citation omitted)). In the context of transfer of venue motions, lengthy delays have the ability to frustrate 28 U.S.C. § 1404(a)'s intent to "prevent the waste 'of time, energy, and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense,'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Cont'l Grain Co. v. The Barge FBL-585, 364 U.S. 19, 26, 27 (1960)), when defendants are forced to expend resources litigating substantive matters in an inconvenient venue while a motion to transfer lingers unnecessarily on the docket. We, like other courts, have therefore stressed "the importance of addressing motions to transfer at the outset of litigation." In re EMC Corp., 501 F. App'x 973, 975 (Fed. Cir. 2013); In re Horseshoe Entm't, 337 F.3d 429, 433 (5th Cir. 2003) ("[I]n our view disposition of that [transfer] motion should have taken a top priority in the handling of this case by the. . . District Court."); McDon- Case Case: 4:15-cv-03755-HSG 15-138 Document: Document 16 Page: 65 Filed 3 07/24/15 Filed: 07/16/2015 Page 5 of 6 IN RE: GOOGLE INC. 3 nell Douglas Corp. v. Polin, 429 F.2d 30, 30-31 (3d Cir. 1970) ("We feel it is not proper to postpone consideration of the application for transfer under 1404(a) until discov- ery on the merits is completed since it is irrelevant to" the "question of transfer."). Here, Google filed its motion to transfer approximate- ly eight months ago. Yet, despite the obligation to "promptly conduct" such proceedings, Fed. R. Civ. P. 72(a), there has been no ruling, not even a hearing. Meanwhile, the magistrate judge has pressed forward with the case, proceeding through to the close of discovery and conducting both a Markman hearing and a hearing related to several discovery disputes. Brite Smart makes much of the fact that Google moved to supplement its motion to transfer. However, Google's supplement amounted to less than two pages highlighting seven lines of deposition testimony. It does not account for the previ- ous months of district court indecision. And Google expressly asked the district court to deny the request if it meant further delay on the transfer motion. Given this passage of time and magistrate judge's or- dering of substantive development of the case, Google has made a compelling case that the magistrate arbitrarily refused to consider the merits of its transfer motion. We therefore direct the magistrate to rule on the motion to transfer within 30 days and to stay all proceedings pend- ing completion of the transfer matter. We remind the lower court that any familiarity that it has gained with the underlying litigation due to the progress of the case since the filing of the complaint is irrelevant when consid- ering the transfer motion and should not color its deci- sion. See EMC, 501 F. App'x at 976. Accordingly, IT IS ORDERED THAT: Case Case: 4:15-cv-03755-HSG 15-138 Document: Document 16 Page: 65 Filed 4 07/24/15 Filed: 07/16/2015 Page 6 of 6 4 IN RE: GOOGLE INC. The petition is granted to the extent that the lower court must issue a decision on Google's transfer motion within 30 days of the date of this order and stay all other proceedings pending final resolution of the transfer mo- tion. FOR THE COURT /s/ Daniel E. O'Toole Daniel E. O'Toole Clerk of Court s24