Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01501-KAJ Document 28 Filed 03/30/2005 Page 1 of 4
Ass-1BY 6. GEDDES
J\`I"l°GRNE'\*5 AND GDUNBELLDRB AT LAW TELEPHONE
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WILMINGTON. DELAWARE mess
Mach 30, 2005
The Honorable Kent A. Jordan HAND DELIVERY
United States District Court
844 King Street
Wilmington, DE 19.801
Re: Future- Fibre Technologies Ply. Ltd v. Oprellios Incorporated,
CA. No. 04-1501-KA]
Dear Judge Jordan:
On behalf ofthe plaintiff, Future Fibre Technologies. Pty; Ltd. ("FFT"), we are writing
regarding a dispute concerning the date by which motions to amend the pleadings-will need to be
tiled inthe above action. Although a scheduling order has not yet been `entered in this case (the
patties could not reach agreement on certain deadlines, and the Court still has the matter under
advisement), the amendment of pleadings deadline in the proposed scheduling order is
tomorrow, March 31, 20.05. We regret having to burden the Court with a dispute- that we believe
the parties easily should have been able to resolve ontheir own, but we appear to beatan
impasse, and FFT therefore respectfully requests Your Honor’-s assistance.
The pertinent background is that the complaint alleges =`tl1e‘ft of propriety technology and
business secrets, and includes, among other things, claims for nstisallpropriation of trade secrets,
breach of eontract,.and Lanham Act violations. Optellios has counterclaimed, seeking, inter alto,
.a declaratory judgment of-patent invalidity in connection with a patent not in suit, and FFT has
moved to dismiss that invalidity counterclaim. The motion to dismiss has notyet been decided
by the Court.
FFT respectfully requests that the originallyproposed amendment of pleadings deadline
be extended until June 15, 2005, for two. reasons.
First, although We do not believe that patent. issues- should be a part of this case, if the
Court denies our motion to dismiss the invalidity- counterclaim, then FFT uuderstaridably will
want, in fairness, the right to amend its complaint to allege infringement of the- patent in
question. Moreover, if the counterclaim is- allowed, then FFT’s infringement claim may- well be
compulsory under Rule l3.‘and subject to-` forfeiture if not pled. Until the Court decides the

Case 1 :04-cv—01501-KAJ Document 28 Filed 03/30/2005 Page 2 of 4
The Honorable Kent A. Jordan
March 30, 2005
Page 2
motion to-dismiss, however, we do not know if there is a need to amend the complaint to allege
infringement, and we therefore propose extending the amendment deadline to-avoid the problem.
Second, FFT and Optellios exchanged initial written discovery requests in mid-March,
but neither will have received responses fhy .tomorrow’s amendment deadline, nor will any
depositions have been taken. Thus, neither party yet can make an adequately informed judgment
about whether to amend its pleadings, and with aproposed discovery- cut—off of August 15, 20.05,
there does not appear to be- any reason why the amendment deadline should not be later in the
schedule. Suche change actually would be beneiicialto beth parties, and would not be
prejudicial to either party since there would remain further time for discovery after any
_am.endments-. On the- other hand, not settzinga. later amendment deadline potentially creates
substantial prejudice for FFT.
Optellios,. for reasons that frankly are not clear to us,.strengly-·o‘bjects to this request. A
copy of its- counsel’s March 29,2005 letter to us. is attached for the Courtis review.
We appreciate the C`ourt’s consideration of this request, and we will be available at`Your
l—lonor’s convenience in the event the Court has questions or wishes to discuss this matter iinther.
Respectfully,
Steven J . Balick
SJB/dmf
Attachment
155231.:
cc Clerk ofthe Court (by ECP file and serve)
Daniel V. Felt, Esquire (by hand)
Stephan P. Gribok, Esquire [via facsimile)
Marc B. Tucker, Esquire (via facsimile)

` Case 1 :04-cv—015Q,1-KAJ Document 28 Filed 03/30/2005 Page 3 of 4
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Mr. Steven J. Balick, Esq. mtmmm
Ashby & Geddes-
17th Floor
222 Delaware Avenue
-P.O. Box 1l5O
Wilmington, DE 19899
Re: Future Fibre Technolog; "es Pg;. Ltd. v. Optellies-, Inc.
Dear Steve:
I understand that you contacted my ofiiee to request an extension of the date to amend or
add parties. I am the only person authorized to approve such a request and, as John Day- may
have told you,_I am out ofthe ofiice on vacation this week. Regardless,. we cannot agree to your
request and should you contact the court about it please indicate. our opposition.
The reason you provided was that plaintiff wants to extend the date to permit it the
opportunity to add a claim for patent infringement should your motion to dismiss our
counterclaim for non-infringement be denied. We {ind no small irony in that justification. It was
odd enough for your client to bring a trade secrets claim without the coniidence to accompany it
with an infringement claim. But your client went further and sought to dismiss our counterclaim
for noneinfringement on technical grounds. How, under such circumstances, can your client
seriously ask us to agree to an extension to. permit them the-Opportunity to reverse course after
opposing the patent side of the; litigation and opposing our attempts to conform the schedule to
one typically us-ed for patent litigation? Your client has insisted upon a tight schedule -- it would
not even spl-it the difference —- and we will not hear it cry foul now.
If, on the other hand, your client has simply miscalculated and now realizes the
importance ofthe patent side. of things, I would be· willing- to go back to our client and request
permission to permit amendment unopposed if your client immediately withdrawsthat portion of
its pending motion to dismiss the declaratory judgment action. Should your client be unwilling
to do so, and instead insists on maintaining the motion while simultaneously trying to extend the
schedule to permit FFT -the opportiuiity to tlip positions should the issue be decided adversely,
then we can offer you no assistance;
DUANE MORR1`S_1.LP
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Case 1 :04-ov-01501-KAJ Document 28 Filed 03/30/2005 Page 4 of 4
| inane Morris
Mr. Steven J. Balick, Esq.
March 29-, 2005
Page 2
Ifyou write or move- the court prior to my return to the United States on Monday, April
4th, plea-se indicate that we oppose your motion and that I will reply to the- Court in- writing
immediately upon my return.
Sincerely,
_ . rl
Daniel V. Folt
DICTATED BUT NOT READ DUE
TO ABSENCE FROM OFFICE
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