E.DIGITAL CORPORATION’S OBJECTION TO 3:13-CV-00785-DMS-WVG
APPLE INC.’S MJOP MOTION -1-
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
ANTON HANDAL (Bar No. 113812)
anh@handal-law.com
PAMELA C. CHALK (Bar No. 216411)
pchalk@handal-law.com
GABRIEL HEDRICK (Bar No. 220649)
ghedrick@handal-law.com
HANDAL & ASSOCIATES
1200 Third Avenue, Suite 1321
San Diego, California 92101
Tel: 619.544.6400
Fax: 619.696.0323
Attorneys for Plaintiff
e.Digital Corporation
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
v.
Apple Inc., a California Corporation,
Defendant.
Case No. 3:13-CV-00785-DMS-WVG
PLAINTIFF AND COUNTERDEFENDANT
E.DIGITAL
CORPORATION’S OBJECTION
TO “APPLE’S NOTICE OF
MOTION AND MOTION FOR
JUDGMENT ON THE PLEADINGS
PURSUANT TO RULE 12(c)”; AND,
REQUEST THAT THE COURT
STRIKE THE MOTION AND
TAKE IT OFF CALENDAR;
ATTACHED EXHIBITS A-B
Hearing Date: August 9, 2013
Time: 1:30 p.m.
Assigned to: Hon. Dana M. Sabraw
Courtroom: 13A
Apple Inc., a California Corporation,
Counterclaimant,
v.
e.Digital Corporation,
Counter-Defendant.
Case 3:13-cv-00785-DMS-WVG Document 37 Filed 07/09/13 Page 1 of 4
E.DIGITAL CORPORATION’S OBJECTION TO 3:13-CV-00785-DMS-WVG
APPLE INC.’S MJOP MOTION -2-
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
TO THE PARTIES, THEIR COUNSEL, AND THE CLERK OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
CALIFORNIA:
Plaintiff e.Digital Corporation (“Plaintiff” or “e.Digital”) hereby objects to
Defendant Apple Inc. (“Defendant” or “Apple”)’s “Apple’s Notice Of Motion And
Motion For Judgment On The Pleadings Pursuant To Rule 12(c)” (“Motion”), filed
on or about July 8, 2013 (Docket #35), on the following grounds:
1) The Motion Is Untimely Pursuant to the Court’s May 30, 2013
Order (Docket #21). e.Digital was required per Paragraph 7 of the Court’s May
30, 2013 “Order After Case Management Conference” (“Order”) (Docket #21) to
serve its preliminary infringement contentions by June 26, 2013. (See, Page 3,
Paragraph 7 of the Order, a true and correct copy of relevant portions of which are
attached hereto as Exhibit “A”). e.Digital complied with this Order on June 26,
2013, emailing and mailing the preliminary infringement contentions. (See, Docket
#35-2, “Declaration Of Kevin J. O'shea In Support Of Apple's Motion For
Judgment On The Pleadings Pursuant To Rule 12(c)”, a true and correct copy of
relevant portions of which are attached hereto as Exhibit “B”).
The Court further set a deadline for Apple to file its Federal Rule of Civil
Procedure Rule 12 (c) motion for judgment on the pleadings. Paragraph 5 of the
Order specifically states (see, Exhibit “A”, Page 2, Paragraph 5):
“To the extent any Defendants desire to file motions based on failure
to state a claim for direct or indirect infringement, they must first file
answers. Defendants may raise this issue in a motion under
Federal Rule of Civil Procedure 12(c) within seven (7) calendar
days after the service of infringement contentions by Plaintiff, if
any Defendant believes the contentions fail to demonstrate a plausible
claim of infringement, direct or indirect.” (emphasis added)
Pursuant to the Court’s Order, any motion made pursuant to Federal Rule of
Case 3:13-cv-00785-DMS-WVG Document 37 Filed 07/09/13 Page 2 of 4
E.DIGITAL CORPORATION’S OBJECTION TO 3:13-CV-00785-DMS-WVG
APPLE INC.’S MJOP MOTION -3-
HANDAL & ASSOCIATES
1200 THIRD AVE
SUITE 1321
SAN DIEGO, CA 92101
TEL: 619.544.6400
FAX: 619.696.0323
Civil Procedure Rule 12(c) had to be filed no later than seven calendar days after
June 26, 2013 or no later than July 3, 2013. Apple filed its Motion seeking relief
pursuant to Federal Rule of Civil Procedure Rule 12(c) on July 8, 2013 or 5 days
after the Court ordered deadline. (Docket #35). As such, the Motion is untimely
and should be taken off calendar.
Given the aforementioned objections, e.Digital respectfully requests that
Defendant’s Motion be stricken and/or the hearing be taken off calendar given that
the Motion is untimely.
Dated: July 9, 2013
HANDAL & ASSOCIATES
By: /s/Pamela C. Chalk__________________
Anton N. Handal
Pamela C. Chalk
Gabriel G. Hedrick.
Attorneys for Plaintiff
