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

MOTION for Leave to File A Response to Plaintiff's Opposition to Defendant's Motion for Leave to File Counterclaims

D. Mass.July 30, 2004

{ J:\CLIENTS\lit\303669\0001\00451686.DOC;1} IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SMITH & NEPHEW, INC., ) ) Plaintiff, ) ) v. ) Civil Action No. 03CV 12310 NMG ) SURGICAL SOLUTIONS, LLC, ) ) Defendant. ) MOTION FOR LEAVE TO FILE A RESPONSE TO PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR LEAVE TO FILE COUNTERCLAIMS Defendant, Surgical Solutions, Inc. hereby requests leave of Court to file a response to Plaintiff’s Opposition to Surgical Solutions’ Motion for Leave to File Counterclaims. Following the receipt of initial discovery, Surgical Solutions promptly filed a Motion to add counterclaims seeking a declaratory judgment that the patent in suit is unenforceable due to Plaintiff’s inequitable conduct and invalid under applicable patent law. In its Opposition, Plaintiff argued that the draft counterclaims are deficient as a matter of law and should not be allowed in this case. In its initial motion, Surgical Solutions presented its proposed counterclaims and, relying upon Rule 15(a), sought leave to file the counterclaims because there would be no prejudice to the Plaintiff in doing so. As a result, it did not anticipate nor address the arguments raised in Plaintiff’s Opposition and therefore, requires this reply to address the arguments raised by the Plaintiff. As the Court will see, the Reply addresses the alleged deficiencies and establishes that in order for there to be a full and final resolution between the parties, the counterclaim should be added at this time. WHEREFORE, Defendant, Surgical Solutions, Inc. requests leave to file its reply to Plaintiff’s Opposition to its Motion for Leave to File Counterclaims. Case 1:03-cv-12310-NG Document 44 Filed 07/30/2004 Page 1 of 2 { J:\CLIENTS\lit\303669\0001\00451686.DOC;1} 2 Date: July 30, 2004 SURGICAL SOLUTIONS, LLC, By Its Attorney, /S/: Louis M. Ciavarra Louis M. Ciavarra (BBO No. 546481) BOWDITCH & DEWEY, LLP 311 Main Street, P.O. Box 15156 Worcester, MA 01615-0156 Tel: (508) 926-3408 Fax: (508) 929-3011 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing will be served on the following counsel on the date indicated below via Federal Express to: Ahmed J. Davis, Esq. FISH & RICHARDSON 1425 K Street N.W., Suite 1100 Washington, DC 20005 Dated: July 30, 2004 /S/: Louis M. Ciavarra Case 1:03-cv-12310-NG Document 44 Filed 07/30/2004 Page 2 of 2