Micro Enhanced Technology, Inc. et al. v. Videx, Inc.

MOTION

N.D. Ill.November 21, 2012

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION MICRO ENHANCED TECHNOLOGY, INC., Plaintiff, v. VIDEX, INC., et al., Defendants. Civil Action No. 1:11-cv-05506 Judge Robert M. Dow, Jr. VIDEX, INC.’S MOTION TO AMEND SCHEDULE Defendant Videx, Inc. (“Videx”) respectfully moves to amend the schedule for this case (see Dkt. No. 101) by two months due to the delay caused by the withdrawal of Plaintiff Micro Enhanced Technology, Inc.’s (“MET’s”) counsel, and to order MET’s new counsel to file an appearance by December 7, 2012. In support of this motion, Videx states: 1. MET has been without counsel of record in this case since October 15, 2012. MET’s original counsel, Edward L. Bishop and Nicholas S. Lee of the law firm of Bishop & Diehl, Ltd., moved to withdraw on June 20, 2012 (Dkt. No. 70), and their motion was granted on June 25, 2012 (Dkt. No. 76). MET’s subsequent counsel, Phillip M. Pippenger, appeared on June 19, 2012 (Dkt. No. 71), but moved to withdraw on October 11, 2012 (Dkt. No. 98), and his motion was granted on October 15, 2012 (Dkt. No. 102). Thereafter, MET has remained pro se. 2. On October 8, 2012, in anticipation of Mr. Pippenger’s withdrawal, counsel for Videx and MET filed a joint stipulation proposing an extension of the case schedule to allow plaintiff MET time to find and retain new counsel while also minimizing any prejudice to either party resulting from Mr. Pippenger’s withdrawal. (Dkt. No. 97.) The Court issued a Scheduling Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 1 of 8 PageID #:1590 2 Order, including a “First Amended Schedule,” on October 12, 2012, which granted a “30-day stay to allow Plaintiff to obtain new counsel” from October 8 to November 7, 2012. (Dkt. No. 101, at 2.) 3. MET failed to appear with new counsel by November 7, 2012, despite the expiration of the above-mentioned stay. 4. On November 13, and again on November 16, counsel for Videx contacted former counsel for MET, Mr. Pippenger, to inquire whether he knew if and when new counsel for MET would make an appearance. Despite such efforts by Videx, MET’s new counsel has not yet appeared in this case. 5. In the meantime, defendant Videx has been unable to obtain discovery from MET. For example, MET has failed to produce a single document in response to Videx’s October 27, 2011 or August 24, 2012 Requests for Production, and MET’s discovery obligations in general remain significantly unmet. 6. Videx is prejudiced by MET’s continuing delay in providing discovery responses and complying with the Local Patent Rules. For example, Videx’s initial non-infringement and invalidity contentions are currently due January 14, 2013. Pursuant to the Local Patent Rules, the Court’s July 31, 2012 Scheduling Order (Dkt. No. 89), and the Court’s October 12, 2012 First Amended Schedule (Dkt. No. 101), MET was required to produce, at least several months ago, documents necessary for Videx’s initial non-infringement and invalidity contentions, including, for example, documents concerning prior sale or offers to sell products embodying asserted claims of the patents-in-suit and all documents concerning the conception, reduction to practice, design and development of each alleged invention of the patents-in-suit. (See LPR 2.1 Initial Disclosures.) Also, in response to Videx’s document requests, MET was required to Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 2 of 8 PageID #:1591 3 produce, at least several months ago, documents relating to MET’s alleged infringement theories as well as, for example, documents from other lawsuits involving the patents-in-suit, such as prior art and invalidity contentions asserted in those lawsuits. By continuing to withhold this and other required discovery, MET has prejudiced Videx’s ability to provide its initial non- infringement and invalidity contentions, and otherwise delayed the orderly progression of this case. 7. Videx has been unable to meet-and-confer with MET’s new counsel about this motion because such counsel has not yet appeared and MET has not otherwise identified its new counsel to counsel for Videx. Nevertheless, Videx has provided copies of this motion to William Denison, the registered Corporate Agent of MET, and Mr. Pippenger, MET’s recently- withdrawn counsel. For all of the foregoing reasons, Videx respectfully requests that: (a) the Court extend the case schedule by two months, by entering the attached Proposed Second Amended Schedule, in order to afford Videx time to obtain and analyze the required overdue discovery from MET; and (b) the Court order MET’s new counsel to file an appearance by December 7, 2012, which is one month after the prior “30-day Stay to allow Plaintiff to obtain new counsel” from October 8 to November 7, 2012 (Dkt. No. 101). Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 3 of 8 PageID #:1592 4 PROPOSED SECOND AMENDED SCHEDULE Event Date 26(f) Report Due (LPR 1.2) August 2, 2012 Initial Disclosures Due (LPR 2.1) and Fact Discovery Commences (LPR 1.3) August 13, 2012 Initial Infringement Contentions (LPR 2.2) August 16, 2012 30-day Stay to allow Plaintiff to obtain new counsel October 8 - November 7, 2012 Deadline for Plaintiff’s new counsel to file an appearance December 7, 2012 Initial Non-Infringement, Unenforceability and Invalidity Contentions and corresponding document production (LPR 2.3, 2.4, 2.6) March 14, 2013 Initial Response to Invalidity Contentions (LPR 2.5) March 28, 2013 Final Infringement Contentions (LPR 3.1), Final Unenforceability and Invalidity Contentions (LPR 3.1), and Final Date to Seek Stay Pending Reexamination (LPR 3.5) May 13, 2013 Final Non-Infringement Contentions (LPR 3.2), Final Enforceability and Validity Contentions (LPR 3.2), document production (LPR 3.3) June 10, 2013 (28 days after service of final infringement/ invalidity contentions) Meet and confer regarding claim terms in dispute (Standing Order For Patent Claim Construction Proceedings Before Judge Dow (“Judge Dow’s Order”), ¶ 2) June 17, 2013 (2 weeks prior to exchange of preliminary constructions, plus 6 days) Exchange of Proposed Claim Terms to be Construed along with Proposed Constructions (LPR 4.1) June 24, 2013 (14 days from service of final non- infringement/validity contentions) Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 4 of 8 PageID #:1593 5 Event Date Meet and confer and agree upon no more than ten (10) terms or phrases to be presented to the Court for construction (LPR 4.1b) July 1, 2013 (7 days after exchange of claim terms) Submit Joint Claim Construction Chart (Judge Dow’s Order, ¶ 2) TBD (set by the Court) Close of Fact Discovery (LPR 1.3) July 22, 2013 (28 days after exchange of claim terms; resumes upon entry of claim construction ruling.) Opening Claim Construction Brief by patentee (Judge Dow’s Order, ¶ 3) TBD (21 days after Joint Claim Construction Chart; LPR 4.2a specifies opening brief by accused infringer 35 days after exchange of terms) Responsive Claim Construction Brief by accused infringer (Judge Dow’s Order, ¶ 4) TBD (21 days after opening brief; LPR 4.2c specifies 28 days after filing of opening briefs) Reply Claim Construction Brief by patentee (Judge Dow’s Order, ¶ 5) TBD (14 days after responsive brief; LPR 4.2c-d specifies Reply Brief by accused infringer 14 days after filing of responsive briefs) Final Joint Claim Construction Chart and Status Report (Judge Dow’s Order, ¶ 5; LPR 4.2f) TBD (7 days after filing of reply briefs) Joint Prehearing Statement (Judge Dow’s Order, ¶ 7) TBD (two weeks before claim construction hearing) Claim Construction Hearing (LPR 4.3) TBD Claim Construction Ruling (and reinstatement of fact discovery) TBD Opening of discovery concerning opinions of counsel (LPR 3.6) TBD (35 days prior to close of fact discovery / 7 days after Claim Construction Ruling) Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 5 of 8 PageID #:1594 6 Event Date Close of Fact Discovery-Final (LPR 1.3) TBD (42 days after entry of claim construction ruling) Initial Expert Reports (LPR 5.1b) TBD (21 days after final close of fact discovery) Rebuttal Expert Reports (LPR 5.1c) TBD (35 days after initial expert reports) Depositions of Experts (LPR 5.2) TBD (completed 35 days after exchange of rebuttal reports) Final Day for Filing Dispositive Motions (LPR 6.1) TBD (28 days after end of expert discovery) Case Ready for Trial 20 weeks after filing dispositive motions A copy of the proposed scheduling order is being e-mailed to Proposed_Order_Dow@ilnd.uscourts.gov in accordance with this Court’s Case Management Procedures. Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 6 of 8 PageID #:1595 7 Dated: November 21, 2012 Respectfully submitted, /s/ David L. Witcoff David L. Witcoff dlwitcoff@jonesday.com Justin M. Philpott jmphilpott@jonesday.com Thomas W. Ritchie twritchie@jonesday.com JONES DAY 77 West Wacker Drive Chicago IL 60601-1692 Telephone: (312) 782-3939 Patrick T. Michael, Pro Hac Vice pmichael@jonesday.com Joe C. Liu, Pro Hac Vice jcliu@jonesday.com JONES DAY 1755 Embarcadero Road Palo, Alto, CA 94303 Telephone: (650) 739-3939 Attorneys for Defendant Videx, Inc. Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 7 of 8 PageID #:1596 8 CERTIFICATE OF SERVICE The undersigned attorney hereby certifies that on November 21, 2012, a true and correct copy of the foregoing VIDEX, INC.’S MOTION TO AMEND SCHEDULE was filed electronically with the Clerk of the Court and was served via the Court’s CM/ECF System which will automatically provide electronic notice upon all counsel of record. In addition, notice was also provided by hand-delivery service on November 21, 2012 pursuant to Fed. R. Civ. P. 5 to: Micro Enhanced Technology, Inc. c/o William B. Denison 701 Gullo Ave. Suite B Elk Grove Village, IL 60007 (847) 258-4474 A courtesy copy of this notice was also served on November 21, 2012 by e-mail to former counsel for Micro Enhanced Technology, Inc.: Phillip M. Pippenger Miller, Matthias and Hull One North Franklin Suite 2350 Chicago, IL 60606 (312) 676-7595 ppippenger@millermatthiashull.com /s/ Justin M. Philpott Justin M. Philpott jmphilpott@jonesday.com JONES DAY 77 West Wacker Drive Chicago IL 60601-1692 Telephone: (312) 782-3939 Attorney for Defendant Videx, Inc. Case: 1:11-cv-05506 Document #: 103 Filed: 11/21/12 Page 8 of 8 PageID #:1597