Smith & Nephew, Inc. v. Surgical Solutions, Inc.

MOTION for Extension of Time to File Markman Briefs

D. Mass.May 3, 2005

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ____________________________________ ) SMITH & NEPHEW, INC., ) ) Plaintiff, ) ) v. ) Docket No. 03-CV-12310 NG ) SURGICAL SOLUTIONS, LLC, ) CLASSIC WIRE CUT COMPANY, INC. ) and DEPUY MITEK, INC., ) ) Defendants. ) ____________________________________) DEFENDANT DEPUY MITEK, INC.’S OPPOSED MOTION FOR AN EXTENSION OF TIME TO FILE MARKMAN BRIEFS Defendant DePuy Mitek (“Mitek”) hereby moves for an extension of time to file its Markman brief, and Defendants Surgical Solutions, LLC (“Surgical Solutions”) and Classic Wire Cut Company, Inc. (“Classic Wire”) hereby move for an extension of time to file their consolidated Markman brief. Plaintiff Smith & Nephew, Inc. (“Smith & Nephew”) opposes this motion. In accordance with Judge Gorton’s March 22, 2005 Status Conference, (a) Mitek’s Markman brief was due on April 29, 2005, (b) Surgical Solutions and Classic Wire’s consolidated Markman brief was due on April 29, 2005, (c) Smith & Nephew’s responsive brief was due on May 20, 2005, and (d) a Markman hearing was scheduled for June 9, 2005. Judge Gorton’s Order of Recusal was then entered on April 13, 2005, and Judge Lasker was assigned to the case. On April 20, 2005, Mitek moved for a one-week extension to May 6, 2005 to file its Markman brief, and a one-week extension to May 27, 2005 for Smith & Nephew to file its responsive Markman brief. Smith & Nephew assented. On April 20, 2005, Smith & Nephew Case 1:03-cv-12310-NG Document 150 Filed 05/03/2005 Page 1 of 4 2856523.1 - 2 - and Surgical Solutions agreed that if the motion was granted, Surgical Solutions’ consolidated Markman brief would also be due on May 6, 2005. Judge Lasker granted the motion for a one- week extension on April 26, 2005. At Mitek’s request, Judge Lasker scheduled a conference with the parties for May 2, 2005 to confirm the June 9, 2005 scheduled Markman hearing. That conference was cancelled by the court, and Judge Lasker’s Order of Recusal was entered on May 3, 2005. Judge Gertner was assigned to the case on May 3, 2005. In view of the reassignment of the case, and the potential for a delay in the scheduled June 9, 2005 Markman hearing, Mitek, Surgical Solutions and Classic Wire hereby move for an extension of time to file their respective Markman briefs. Mitek, Surgical Solutions and Classic Wire further request a scheduling conference with the Court (a) to set a Markman briefing schedule, and (b) to determine when the Markman issues will be heard. WHEREFORE, for the reasons stated above, Mitek, Surgical Solutions and Classic Wire respectfully request an order regarding the following matters and dates, subject to the approval of the Court: (PROPOSED) ORDER 1. DePuy Mitek, Inc.’s, Surgical Solutions’ and Classic Wire’s opposed motion for an extension of time is GRANTED. 2. A scheduling conference with the Court is set for ____________ at _______. Case 1:03-cv-12310-NG Document 150 Filed 05/03/2005 Page 2 of 4 2856523.1 - 3 - Dated: May 3, 2005 Respectfully submitted, DEPUY MITEK, INC. By its attorneys, /s/ Thomas E. Peisch Thomas E. Peisch (BBO# 393260) Jacob A. Labovitz (BBO# 646967) CONN KAVANAUGH ROSENTHAL PEISCH & FORD, LLP Ten Post Office Square Boston, MA 02109 (617) 482-8200 John M. DiMatteo Diane C. Ragosa David D. Lee WILLKIE FARR & GALLAGHER LLP 787 Seventh Avenue New York, New York 10019-6099 (212) 728-8000 SURGICAL SOLUTIONS, LLC and CLASSIC WIRE CUT COMPANY, INC. By its attorneys, /s/ Joseph C. Andras Joseph C. Andras Vic Lin MYERS, DAWES. ANDRAS, & SHERMAN, LLP 19900 MacArthur Boulevard, 11th Floor Irvine, CA 92612 (949) 223-9600 Louis M. Ciavarra (BBO No. 546,481) Monica Grewal BOWDITCH & DEWEY LLP 161 Worcester Road Framingham, MA 01701-9320 (508) 416-2475 Case 1:03-cv-12310-NG Document 150 Filed 05/03/2005 Page 3 of 4 2856523.1 - 4 - Certification Pursuant To Local Rule 7.1(a)(2) Undersigned counsel hereby certifies that before filing this Motion, counsel for the parties conferred, and on May 3, 2005, Counsel for Defendant Smith & Nephew, Inc., Mark J. Hebert, Esq., opposed this motion via e-mail. /s/ Diane C. Ragosa Diane C. Ragosa Case 1:03-cv-12310-NG Document 150 Filed 05/03/2005 Page 4 of 4