Free Memorandum in Opposition - District Court of California - California

Case 5:07-cv-05248-JW

Document 115

Filed 02/20/2008

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13

HAROLD J. MCELHINNY (CA SBN 66781) [email protected] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: 415.268.7000 Facsimile: 415.268.7522 KENNETH A. KUWAYTI (CA SBN 145384) [email protected] MARC DAVID PETERS (CA SBN 211725) [email protected] MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, CA 94304-1018 Telephone: 650-813-5600 Facsimile: 650-494-0792 Attorneys for Defendants ADVANCED MICRO-FABRICATION EQUIPMENT, INC. CHINA, ADVANCED MICRO-FABRICATION EQUIPMENT, INC. ASIA, and ADVANCED MICROFABRICATION EQUIPMENT INC. UNITED STATES DISTRICT COURT

14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN JOSE DIVISION 16 17 APPLIED MATERIALS, INC., 18 Plaintiff, 19 v. 20 21 22 23 Defendants. 24 25 26 27 28
AMEC'S OPPOSITION TO AMAT'S MOTION TO FILE SUR-REPLY CASE NO. C07-05248 JW (PVT) sf-2470168

Case No.

C 07-05248 JW (PVT)

ADVANCED MICRO-FABRICATION EQUIPMENT, INC. CHINA, ADVANCED MICRO-FABRICATION EQUIPMENT, INC. ASIA, ADVANCED MICRO-FABRICATION EQUIPMENT INC.,

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO FILE SUR-REPLY TO DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE DECLARATIONS Date: February 25, 2008 Time: 9:00 a.m. Courtroom: 8, 4th Floor

Case 5:07-cv-05248-JW

Document 115

Filed 02/20/2008

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants AMEC Inc., AMEC Asia, and AMEC China collectively oppose plaintiff Applied Materials, Inc.'s ("Applied's") motion to file a sur-reply brief. Applied claims that it has filed the brief because defendants "improperly raise numerous arguments for the first time" in their reply briefs. Motion for Leave to File Sur-Reply at 1. In fact, as the sur-reply brief itself shows, the sur-reply is simply an attempt to get the last word on nearly every argument raised in the opening briefs. Most seriously, the sur-reply attaches two substantive declarations, introducing new evidence to which defendants will have no opportunity to respond. The surreply brief should not be considered, and the declarations should be stricken. The sur-reply brief is not directed at arguments "made for the first time" on reply. Section I of the sur-reply brief devotes three pages to re-arguing the legal standard for this motion and why plaintiffs should win, repeating the arguments from their opposition brief. Compare Sur-Reply at 1-3 with Opposition to Motion to Dismiss at 7-9. That defendants responded to plaintiff's position does not make this a "new" argument that plaintiffs are entitled to address again. See AMEC-China Reply at 2. Similarly, section II of the sur-reply is nothing more than an attempt to get the last word on defendants' response to plaintiff's alter ego argument which did not rely upon any new facts. See AMEC Inc. Reply at 1-6. Section III of the sur-reply is directed to the "effects" test, which was raised by defendant AMEC Asia and AMEC China's opening briefs. See, e.g., AMEC China Motion at 3-7. Section IV is addressed to the "reasonableness" of exercising jurisdiction -- a section of defendant AMEC China's reply that did not raise a single new fact or argument. See AMEC China Reply at 10. Section V is supposedly addressed to "Defendants' Attempt to Fortify Their `Extraterritoriality' Argument" with additional cases (Sur-Reply at 7), which is by definition not a new argument. Section VI discusses forum non conveniens, addressed in detail in AMEC Inc.'s opening brief filed in November 2007. See AMEC Inc. Motion at 12-17. Most seriously, Applied has improperly attached two substantive declarations to its surreply papers. A party's "attempt to introduce new evidence in connection with their reply papers is improper." Contratto v. Ethicon, Inc., 227 F.R.D. 304, 309 n.5 (N.D. Cal. 2005). The first declaration, the Declaration of Roger Lindley, makes various claims about Applied's contacts with California and China, and its current and former employees. (See Docket Item No. 113-3.)
AMEC'S OPPOSITION TO AMAT'S MOTION TO FILE SUR-REPLY sf-2470168

1

Case 5:07-cv-05248-JW

Document 115

Filed 02/20/2008

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

It is directly responsive to AMEC Inc.'s November 2007 motion papers regarding the market for Applied's products and the location of Applied's former employees. See AMEC, Inc. Motion at 15-16. Applied does not even attempt to justify this declaration on the grounds of new evidence. There is no reason it could not have been filed in the two-and-a-half months between the filing of AMEC Inc's opening brief and the filing of Applied's opposition, and it should be stricken. The second declaration, the Declaration of Mingtao Wang, addresses the impact of China's state secrets laws on discovery in this case. (See Docket Item No. 113-4.) Applied has been aware since mid-November 2007 of defendants' concern that they may not be able to proceed with discovery in this case because of China's state secrets laws.1 Applied again fails to justify its nearly three-month delay in filing a declaration on pertinent Chinese laws. Defendants accordingly request that the Court deny Applied's motion to file its sur-reply brief and strike the accompanying declarations. In the alternative, if the Court is inclined to consider the sur-reply brief and declarations, defendants request that they be provided with a reasonable opportunity to respond. Dated: February 20, 2008 HAROLD J. MCELHINNY KENNETH A. KUWAYTI MARC DAVID PETERS MORRISON & FOERSTER LLP

By:

/s/ KENNETH A. KUWAYTI Kenneth A. Kuwayti Attorneys for Defendants ADVANCED MICROFABRICATION EQUIPMENT, INC. CHINA, ADVANCED MICROFABRICATION EQUIPMENT, INC. ASIA, and ADVANCED MICROFABRICATION EQUIPMENT INC.

1

(See AMEC-Shanghai's Sur-Reply to Plaintiff's Motion to Expedite Discovery at 5, Docket Item No. 47.)

AMEC'S OPPOSITION TO AMAT'S MOTION TO FILE SUR-REPLY sf-2470168

2