Pursuant to Rule 56 of the Federal Rules of Civil Procedure and the Order and Memorandum Decision of the Court dated April 2, 2009 (Docket #326), Defendants e.Digital Corporation, William Blakeley, and Fred Falk (collectively “e.Digital” or “Defendants”), by and through their counsel, hereby move for summary judgment to dismiss with prejudice digEcor’s third claim for relief in the operative complaint—breach of the duty of good faith and fair dealing.

It is well-settled in the Tenth Circuit that a district court may grant summary judgment in favor of the non-moving party without the filing of a formal cross-motion for summary judgment. In light of the parties’ extensive prior briefing on this issue, the Court’s April 2, 2009 Order that “digEcor’s claim cannot prevail as a matter of law”, and the upcoming April 30, 2009 Final Pretrial Conference and May 4, 2009 trial date, e.Digital requests that the Court grant the present motion without further briefing, or alternatively that digEcor’s time for response to this motion, if any, be shortened to the ten-day period permitted by Rule 56(c) so that this motion may be ruled upon by the Court at or before the Final Pretrial Conference.

DATED this 7th day of April, 2009.

RAY QUINNEY & NEBEKER P.C.

/s/ Ryan B. Bell

Samuel C. Straight

Ryan B. Bell

Attorneys for Defendants