Sarah Barrows (Bar No. 253278)
barrowss@gtlaw.comStephen Ullmer (Bar No. 277537)
ullmers@gtlaw.comGREENBERG TRAURIG LLP
4 Embarcadero Center, Suite 3000
San Francisco, CA 94111
Tel: (415) 655-1300
Fax: (415) 707-2010
James J. DeCarlo (pro hac vice)
decarloj@gtlaw.comGREENBERG TRAURIG LLP
200 Park Avenue
Florham Park, NJ 07932
Tel: (973) 360-7900
Fax: (973) 301-8410
Kevin J. O’Shea (pro hac vice)
osheak@gtlaw.comGREENBERG TRAURIG LLP
77 West Wacker Drive
Chicago, IL 60601
Tel: (312) 456-8400
Fax: (312) 456-8435
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
v.
APPLE Inc., a California
Corporation,
Defendants.
CASE NO. 13CV0785 DMS WVG
EX PARTE APPLICATION FOR ORDER
SHORTENING TIME
Assigned to: Hon. Dana M. Sabraw
Courtroom: 13A
Pursuant to Local Rule 7.1(e)(5), Apple Inc. (“Apple”) hereby moves ex parte for
an application to shorten time for hearing Apple’s Motion to Amend the Stipulated Partial
Judgment and for hearing Defendants’ Motion to Stay Pending Appeal, both of which are
being filed concurrently herewith.1 Apple requests that the Court shorten time so as to
require oppositions to these motions be filed by October 28, 2013, and replies supporting
these motions be filed by November 4, 2013. Apple further requests that both motions be
decided without oral argument, thus making them ready for decision immediately upon
the filing of reply briefs.2
I. Introduction and Background
As set out more fully in Apple’s concurrently filed Motion to Amend the Stipulated
Final Judgment and Defendants’ Motion to Stay Proceedings Pending Appeal, Plaintiff
has engineered an appeal of the Court’s Collateral Estoppel Order, the outcome of which
will affect all of the parties. However, none of the remaining Defendants, including
Apple, has an automatic right to participate in that appeal and, therefore, the Defendants’
interests will not be preserved.
The Court ordered all Defendants in the e.Digital cases to file a consolidated
Motion to Apply Collateral Estoppel. (Rec. Doc. No. 21, Order After Case Management
Conference, at ¶ 6.) After the Court granted that Motion, (Rec. Doc. No. 45), Apple
negotiated a stipulated judgment of non-infringement that was not immediately
appealable, to prevent piecemeal appeals while litigation on the remaining two asserted
patents continued in this Court. However, unbeknownst to Apple, e.Digital had separately
negotiated with another defendant to enter final judgment, ensuring that e.Digital could
1 Each of the Defendants in the pending e.Digital cases is filing a Motion to Join
Defendants’ Motion to Stay Pending Appeal, which is being filed in the present case.
2 Defendants that intend to actively participate in the appeal process are filing, or will
shortly file, Motions to Amend the Stipulated Partial Judgment in their respective cases.
Defendants were not able to file a single Motion to Amend due to slight differences in the
specific partial judgments, and other circumstances in the respective cases.
appeal the order without Apple’s input. See e.Digital Corp. v. Huawei Tech. Co. Ltd. et
al, Case No. 3:13-cv-00783, Rec. Doc. No. 73 (Stipulated Final Judgment), Rec. Doc. No.
74 (Plaintiff’s Notice of Appeal). Accordingly, Apple is filing concurrently herewith a
Motion to Amend the Stipulated Final Judgment pursuant to Rule 54(b), which will
require Plaintiff to appeal the Collateral Estoppel Order in this case—or waive that
issue—and allow Apple to participate in the Federal Circuit’s consideration of the
Collateral Estoppel Order.
II. An Order Shortening Time for Hearing is in the Interest of Justice
Good cause exists to shorten the deadlines for the motions. Plaintiff’s opening brief
in the Huawei appeal is presently due on December 9, 2013. (Huawei, Rec. Doc. No. 75
(Federal Circuit Notice of Docketing)); Fed. Cir. R. 31. This appeal schedule impacts
whether or not any appeal in the present case will be consolidated with the Huawei appeal.
Local Rule 7.1 states that “[u]nless the court shortens time … any notice of motion,
application or notice of other matter requiring the court’s ruling … will require a
minimum filing date of twenty-eight (28) days prior to the date for which the matter is
noticed.” Thus, under the default schedule, this Court will not decide Apple’s Motion in
less than 28 days. Furthermore, should the Court grant Apple’s Motion to Amend the
Stipulated Partial Judgment, Plaintiff will have thirty days to appeal the Court’s Collateral
Estoppel Order, as entered in this case, from the date that the amended judgment is
entered.3 FED. R. CIV. P. 54(b); FED. R. APP. P. 4. Thus, under the normal timeline for
motions, the appeal in the present case could be filed after Plaintiff files its opening brief
in the Huawei appeal, raising the possibility that the appeals will not be consolidated.
Consolidation, however, is desirable given that it will conserve judicial resources and
eliminate the risk of inconsistent rulings. It will also ensure that Apple’s rights are not
adjudicated without Apple participating in the appeal. See United States ex rel. Technica,
3 The same will be true in each of the e.Digital cases in which the Court amends the
relevant partial final judgment to include a Rule 54(b) certification
LLC v. Carolina Casualty Ins. Co., Civil No. 08cv1673 JAH (CAB), 2011 WL 1121276,
*3 (S.D. Cal. Mar. 21, 2011) (noting that in determining whether to certify an issue for
appeal pursuant to Rule 54(b), courts consider, inter alia, “whether an appellate court
would have to decide the same issues more than once even if there were subsequent
appeals”).
None of the Defendants in the pending e.Digital cases, including Apple, has an
automatic right to participate in the Huawei appeal, inhibiting the Defendants’ ability to
ensure that their interests are protected in an appeal that will directly impact them.
However, if the Court grants the present motions, Plaintiff will be required to appeal the
Collateral Estoppel Order as entered in this case, and in any other case where the Court
enters a partial judgment that includes a Rule 54(b) certification, or waive forever its right
to appeal that issue as to the relevant Defendant(s). Moreover, shortening time on hearing
the motions will make it likely that the appeals will be consolidated with the Huawei
appeal.
III. Conclusion
Apple respectfully requests that this Court shorten time regarding both Apple’s
Motion to Enter a Rule 54(b) Judgment and Defendants’ Motion to Stay Pending Appeal,
requiring Plaintiff to file any opposition by October 28, 2013, and Apple to file any reply
by November 4, 2013. In addition, Apple requests that the Motions be decided on the
papers, without oral argument. Pursuant to Local Rule 7.1, a proposed order to this effect
is submitted herewith.
DATED: October 21, 2013 GREENBERG TRAURIG, LLP
By /s/ Kevin J. O’Shea
Kevin J. O’Shea (pro hac vice)
osheak@gtlaw.comGREENBERG TRAURIG LLP
77 West Wacker Drive
Chicago, IL 60601
Tel: (312) 456-8400
Fax: (312) 456-8435
Sarah Barrows (Bar No. 253278)
barrowss@gtlaw.comStephen Ullmer (Bar No. 277537)
ullmers@gtlaw.comGREENBERG TRAURIG LLP
4 Embarcadero Center, Suite 3000
San Francisco, CA 94111
Tel: (415) 655-1300
Fax: (415) 707-2010
James J. DeCarlo (pro hac vice)
decarloj@gtlaw.comGREENBERG TRAURIG LLP
200 Park Avenue
Florham Park, NJ 07932
Tel: (973) 360-7900
Fax: (973) 301-8410
Attorneys for Defendant Apple Inc
CERTIFICATE OF CONSULTATION
Pursuant to Local Rule 83.3, the undersigned hereby certifies that on October 18,
2013, counsel for Apple, Inc. informed counsel for e.Digital Corporation, that Defendant
Apple Inc. would move this court for an application shortening time, and that such motion
would be made on October 18 or October 21, 2013 via ECF. e.Digital indicated it
opposes this application.
By /s/ Kevin J. O’Shea
Kevin J. O’Shea
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and
foregoing document has been served on October 21, 2013 to all counsel of record who are
deemed to have consented to electronic service via the Court’s CM/ECF system per Civil
Local Rule 5.4.
By /s/ Kevin J. O’Shea
Kevin J. O’Shea
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and
foregoing document has been served on October 21, 2013 to all counsel of record who are
deemed to have consented to electronic service via the Court’s CM/ECF system per Civil
Local Rule 5.4.
By /s/ Kevin J. O’Shea
Kevin J. O’Shea
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
v.
APPLE Inc., a California
Corporation,
Defendant.
CASE NO. 13CV0785 DMS WVG
[PROPOSED] ORDER SHORTENING
TIME
Assigned to: Hon. Dana M. Sabraw
Courtroom: 13A
Having reviewed Defendant Apple Inc.’s ex parte Application for an Order
Shortening time, and good cause appearing therefore, Apple’s Application is granted.
Accordingly, IT IS HEREBY ORDERED THAT:
1) e.Digital Corporation will file any opposition to Apple’s Motion for Entry of
Judgment Pursuant to Rule 54(b) and any opposition to Apple’s Motion to Stay by
October 28, 2013;
2) Apple Inc. will file any reply to e.Digital Corporation’s opposition(s) by
November 4, 2013;
3) Apple Inc.’s Motion for Entry of Judgment Pursuant to Rule 54(b) and
Motion to Stay will be decided without oral argument.
Date: ________________ ______________________
Dana M. Sabraw
United States District Judge
