Re: PACER (Vivitar)
in response to
by
Message: Re: PACER (Vivitar)
FROM DOC 34
Accordingly, even if Vivitar rectifies the substantive deficiencies of its Motion in a later filing, the Court still should not grant Vivitar the relief it seeks. Instead, if this Court ever finds that the cases should be consolidated, L.R. CV-42(c) dictates that the consolidated case be assigned to the Judge who is assigned to the
Vivitar
Action. Such an assignment complies with
the Local Rules and would minimize any unnecessary delay and prejudice to e.Digital. Then, upon that assignment, if this Court determines that there is a conflict that arises out of the relationship between Judge Ward and any of the counsel who represent the defendants in the
Avid
Action as unilaterally suggested by Vivitar, Judge Ward may decline the transfer and
assignment and the Court may use its own internal procedures, guidelines and general orders to assign the consolidated actions to a new judge to handle the resulting consolidated case.
CONCLUSION
e.Digital does not dispute that efficiencies, such as in the
Markman
process, could be
gained through an appropriately focused and procedurally proper motion to consolidate certain aspects of the
Vivitar and Avid
Actions. Nevertheless, Vivitar’s substantively and procedurally
deficient Motion is not so limited. The prejudice imposed on e.Digital by Vivitar’s proposed consolidation outweighs the benefits of Vivitar’s proposed consolidation. Moreover, assignment of the consolidated case to Judge Folsom would be in contradiction to this Court’s Local Rules. Accordingly, Vivitar’s Motion should be denied. Respectfully submitted, Dated: July 11, 2008 By: /s/ Gary R. Maze Gary R. Maze Lead Attorney TX Bar 00792678
grmaze@duanemorris.
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