Free Order on Motion for Miscellaneous Relief - District Court of California - California

Case 3:07-cv-05626-SI

Document 58 56

06/19/2008 Filed 06/13/2008

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Linda J. Thayer (SBN 195,115) FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P 3300 Hillview Avenue Palo Alto, California 94304 Telephone: (650) 849-6600 Facsimile: (650) 849-6666 [email protected] Roger D. Taylor (Admitted Pro Hac Vice) FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P 303 Peachtree Street, N.E. Atlanta, GA 30308-3263 Telephone: (404) 653-6400 Facsimile: (404) 653-6444 [email protected] Attorneys for Plaintiff MARVELL SEMICONDUCTOR, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MARVELL SEMICONDUCTOR, INC., Plaintiff, v. WI-LAN, INC., Defendant. CASE NO. C07-05626 SI MARVELL SEMICONDUCTOR, INC.'S ADMINISTRATIVE MOTION FOR LEAVE TO FILE SURREPLY, SUPPORTING DECLARATION OF LINDA J. THAYER, [PROPOSED] ORDER

Pursuant to Civil Local Rule 7-11, Marvell Semiconductor, Inc. ("Marvell") respectfully requests leave of Court to file a surreply in response to Wi-LAN, Inc.'s Reply in Support of Its Motion to Dismiss Marvell Semiconductor, Inc.'s Suit for Declaratory Relief. The surreply that Marvell requests leave to file is submitted herewith as Exhibit A. There is good cause for filing the proposed surreply. Wi-LAN's Reply was served on June 6, 2008. On that same day, Wi-LAN sent Marvell a new covenant not to sue ("the June 6th Covenant") and filed the June 6th Covenant as Exhibit A to the Reply. In its Reply, Wi-LAN's makes arguments 1
ADMIN. MOT. TO FILE SURREPLY

Case No. C07-05626 SI

Case 3:07-cv-05626-SI

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in support of its Motion to Dismiss with reference to the June 6th Covenant. The June 6th Covenant is new information that Marvell did not have on May 30, 2008, when it filed its Opposition. Marvell requests leave to file a surreply to address facts and misleading arguments relating to the new June 6th Covenant not to sue. 1 For example, Wi-LAN argues that, with the June 6th Covenant, there is no remaining controversy between the parties. This is not true, and Marvell seeks leave to file a surreply to respond to this argument. Marvell's attorneys provided Wi-LAN's attorneys with a copy of the proposed surreply (Exhibit A) and asked that Wi-LAN stipulate to its filing, but Wi-LAN refused to stipulate. Marvell respectfully requests that, if this Motion is granted by the Court, the Court direct the Clerk to enter into the record the surreply in Exhibit A. SUPPORTING DECLARATION OF LINDA J. THAYER I, LINDA J. THAYER, declare as follows: 1 I am an attorney licensed to practice before this Court and all courts of the State of

14 California, and am a member of Finnegan, Henderson, Farabow, Garrett & Dunner L.L.P., counsel 15 for Marvell in the above-entitled action. 16 2. 17 witness, would testify as to the following statements. 18 3. 19 4. 20 contacted Wi-LAN's counsel and requested that Wi-LAN stipulate to Marvell's filing of a surreply. 21 5. 22 the surreply that Marvell intended to file before Wi-LAN would stipulate. 23 6. 24 Exhibit A, and requested that Wi-LAN stipulate to its filing. 25 26 27 28 By addressing only this issue in the surreply, Marvell does not suggest that the Reply contains no other matters requiring response. Marvell believes it can address those issues at the hearing. 2
ADMIN. MOT. TO FILE SURREPLY
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The matters stated herein are based upon my personal knowledge, and if called as a

Exhibit A is a copy of the surreply that Marvell requests leave to file. On June 6, 2008, shortly after receiving Wi-LAN's Reply and new covenant, I

On June 9, 2008, Wi-LAN's counsel responded that they needed to review a copy of

Early today, I emailed Wi-LAN's attorneys a copy of the surreply, filed herewith as

Case No. C07-05626 SI

Case 3:07-cv-05626-SI

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06/19/2008 Filed 06/13/2008

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7.

This afternoon, I received an email from John B. Campbell of McKool Smith, P.C.

stating that Wi-LAN would not stipulate to Marvell's filing of a surreply. 8. The representations made above in this Administrative Motion and declaration are

true and correct to the best of my knowledge and belief. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and this declaration was executed this 13th day of June, 2008, at Palo Alto, California. ______________________/s/__________________________ Linda J. Thayer

[PROPOSED] ORDER Upon good cause shown, IT IS HEREBY ORDERED that the Surreply attached as Exhibit A be filed in this case by the Clerk. IT IS SO ORDERED. Dated: ____________, 2008 ___________________________________ Susan Illston United States District Judge

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ADMIN. MOT. TO FILE SURREPLY

Case No. C07-05626 SI