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 Thomas S. Biemer, Esquire dated May 26, 2015 re: IXI Mobile (R & D), LTD., et al. v. Apple, Inc. - Response to May 20, 2015 Pre-Motion Letter from Apple, Inc. Document filed by IXI IP,LLC, IXI Mobile (R&D) Ltd.

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DIRECT DIAL NUMBER: Thomas S. Biemer (215) 575-7025 tbiemer@dilworthlaw.com May 26, 2015 VIA ECF and E-MAIL The Honorable Richard J. Sullivan Courtroom: 905 Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: IXI Mobile (R & D), LTD., et al. v. Apple, Inc., No. 14-cv-7954 IXI Mobile (R&D), Ltd., et al. v. Samsung Electronics Co., et al., No. 14-cv-4355 IXI Mobile (R&D), Ltd., et al. v. BlackBerry, Ltd., et al., No. 14-cv-4428 Dear Judge Sullivan: We are counsel for plaintiffs IXI Mobile (R&D), Ltd. ("IXI Mobile") and IXI IP, LLC ("IXI IP") in the above-captioned matters and write in response to the pre-motion letter provided by defendant Apple, Inc. ("Apple") dated May 20, 2015. In that letter, Apple seeks permission to file a motion to dismiss IXI Mobile for lack of standing. As Your Honor is aware, Apple first raised the issue of IXI Mobile's standing in connection with its motion to transfer this matter to the Northern District of California pursuant to 28 U.S.C. §1404(a). More specifically, after the IXI plaintiffs filed their omnibus response brief in opposition to transfer on February 17, 2015, Apple requested a copy of the license agreement related to the Patents-in-Suit between IXI Mobile and IXI IP. The IXI plaintiffs promptly provided a copy of the license agreement to Apple (subject to Apple's agreement to keep it confidential) and Apple argued the issue of IXI Mobile's standing for the first time in its reply brief on transfer filed on February 20, 2015. [Apple Docket #35.] Because Apple raised the standing issue for the first time in its reply brief, the IXI plaintiffs sought permission to file a sur-reply brief solely on the standing issue as it related to transfer. [Apple Docket #37.] The Court granted the sur-reply request and further granted Apple's request to file an additional brief in response. In that Order, Your Honor expressly stated that "the Court finds that limited supplemental briefing as to whether IXI Mobile (R&D), Inc. lacks standing to be a Plaintiff in these actions would be helpful." [Apple Docket #39.] IXI and Apple filed their respective briefs 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY The Honorable Richard J. Sullivan May 26, 2015 Page 2 on the issue on March 2, 2015 and March 5, 2015. [Apple Docket #42, #45.] In the related IXI matter against the BlackBerry defendants, BlackBerry joined in Apple's arguments on the standing issue. [BlackBerry Docket #63.] As an initial matter, Apple argues in its pre-motion letter that the IXI plaintiffs "argued that IXI Mobile's presence as a party supported venue" in this forum. To the contrary, the IXI plaintiffs noted that removing IXI Mobile strengthens the argument that the matter should remain in the New York forum. IXI Mobile's documents and witnesses are primarily located in Israel. By removing IXI Mobile as a party, obtaining access to these documents and witnesses becomes more burdensome and does not favor transfer to California. IXI Mobile has, however, submitted declarations that its witnesses would agree to travel to the New York forum for trial, a fact which favors the New York forum and militates against transfer to California. [Apple Docket #42, #43, #44.] If IXI Mobile is deemed a third party, the transfer factors require that the convenience of the Israeli IXI Mobile witnesses be deserving of even more weight in the transfer analysis. As for the timing of the motion, during discussions beginning in late April, 2015, counsel for Apple requested that the IXI plaintiffs agree to dismiss IXI Mobile for lack of standing. While not ruling out Apple's request, counsel for IXI advised counsel for Apple that, based on the fact that Apple had previously raised the standing issue in connection with the transfer briefing, they believed that the issue was already before the Court. Counsel further advised there was a concern that, if an agreement was reached to dismiss IXI Mobile, the Court may simultaneously determine that IXI Mobile had standing and was a necessary party to the matter. This would obviously create a potential procedural issue for the IXI plaintiffs in the Apple matter, as well as in the related actions against BlackBerry and Samsung. For instance, if the IXI plaintiffs agreed to dismiss IXI Mobile, then the BlackBerry or the Samsung defendants (or the Court for that matter) could potentially take the position that IXI Mobile was a necessary party to the litigation. Therefore, IXI proposed that the parties wait to see if the Court decides the standing issue in its transfer decision and then, if necessary, revisit the question. Given the three related actions and the fact that the standing issue was already before the Court, the IXI plaintiffs believed that this proposal was reasonable and in the interests of judicial efficiency and resources. Apple first raised the standing issue in February, 2015, and the Court specifically requested briefing on the issue. The matter has been pending before the Court for several months, and Apple does not even attempt to explain why additional motion practice which would repeat the same facts and law as previously presented to the Court is warranted or necessary. The IXI plaintiffs believe that their proposal protects all of the parties' interests without the need for further Court intervention. 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY The Honorable Richard J. Sullivan May 26, 2015 Page 3 We thank the Court for its consideration regarding this matter and are available at Your Honor's convenience to discuss further. Respectfully, /s/ Thomas S. Biemer Thomas S. Biemer cc: Counsel of record (via email) 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY