Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 1 of 10 Page ID #:46928
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`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`Kevin P.B. Johnson (Bar No. 177129)
`kevinjohnson@quinnemanuel.com
`Todd M. Briggs (Bar No. 209282)
`toddbriggs@quinnemanuel.com
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
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`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`Eric Huang (pro hac vice)
`erichuang@quinnemanuel.com
`51 Madison Avenue, 22nd Floor
`New York, New York 10010
`Telephone: (212) 849-7000
`Facsimile: (212) 849-7100
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`Attorneys for Plaintiffs
`NANTWORKS, LLC and NANT
`HOLDINGS IP, LLC
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`UNITED STATES DISTRICT COURT
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`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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` CASE NO. 2:20-cv-7872-GW-PVC
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`PLAINTIFFS’ EX PARTE
`APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’
`EXCESSIVE NUMBER OF
`DISPOSITIVE MOTIONS
`
`Hon. George H. Wu
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`NANTWORKS, LLC, a Delaware
`limited liability company, and NANT
`HOLDINGS IP, LLC, a Delaware
`limited liability company,
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`Plaintiffs,
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`vs.
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`BANK OF AMERICA
`CORPORATION, a Delaware
`corporation, and BANK OF
`AMERICA, N.A., a national banking
`association,
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`Defendants.
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`
`07553-00012/14884106.2
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case No. 2:20-cv-7872-GW-PVC
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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 2 of 10 Page ID #:46929
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`Pursuant to Local Rule 7-19, Plaintiffs NantWorks, LLC, and Nant Holdings
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`IP, LLC (together, “NantWorks”) respectfully submit this application for relief from
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`the excessive number of dispositive motions filed by Defendants Bank of America
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`Corp. and Bank of America, N.A. (together, “Bank of America”) on May 3-4, 2024
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`(re-filed on May 6, 2024), which are noticed to be heard June 6, 2024. Bank of
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`America filed eight dispositive motions (and three Daubert motions) on May 3 and 4,
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`2024, giving Nantworks under three weeks to oppose these motions and the Court less
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`than a week to prepare to hear these motions after briefing is complete. The number
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`of motions is excessive and not feasible under the current case schedule.
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`In order to keep the case on schedule and address the excessive burden imposed
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`by Bank of America’s filings, NantWorks seeks an expedited order directing Bank of
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`America to identify, by May 10, 2024, three of the eight dispositive motions it filed
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`on which to proceed. The number of motions Bank of America filed is calculated to
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`exceed the word limits imposed by Local Rule 11-6.1, and is onerous and burdensome
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`to both NantWorks, who must oppose eight dispositive motions by May 23, 2024, and
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`the Court who is set to hear argument on these motions on June 6, 2024. NantWorks
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`respectfully requests that this application be heard on Thursday, May 9, 2024 or at the
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`Court’s earliest convenience. NantWorks has conferred with Bank of America, as
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`discussed in more detail below, and Bank of America has indicated that it opposes the
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`relief sought in this Application and plans to file a response.
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`Background and the Parties’ Efforts to Resolve the Issue
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`This is a patent infringement and breach of contract case involving five
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`patents-in-suit set for trial August 20, 2024. Dispositive motions were due on May
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`3, 2024. Dkt. 315. The parties conferred on their planned dispositive and Daubert
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`motions on May 1, 2024. In advance of the call, NantWorks sent an email
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`identifying the motions it planned to file: one dispositive motion and one motion to
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`exclude expert opinions relating to damages. It also identified a motion to strike
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`07553-00012/14884106.2
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
`
`Case No. 2:20-cv-7872-GW-PVC
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`

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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 3 of 10 Page ID #:46930
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`that had been the subject of previous correspondence. Thirty minutes before the
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`meet and confer, Bank of America sent its email and identified nine dispositive
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`motions and three motions to exclude expert opinions.1 This email, two days
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`before the deadline for these motions, was the first time that Bank of America
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`disclosed the number and content of the motions it intended to file.
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`During the call,2 NantWorks expressed concern that Bank of America’s
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`anticipated motions were numerous and calculated to evade the word limits under
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`L.R. 11-6.1, which imposes a 7,000-word limit on dispositive and Daubert briefs.
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`On the evening of May 2, 2024, NantWorks reiterated its concern in writing and
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`asked that Bank of America limit the number of its dispositive motions to, at most,
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`five motions, believing it to be fair given the grounds Bank of America raised. Bank
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`of America did not respond to NantWorks’ email.
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`On May 3 and 4, 2024, Bank of America filed eight dispositive motions (Dkt.
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`319, 336, 345, 354, 364, 367, 377, and 382)3 and three motions to exclude certain
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`expert opinions (Dkt. 316, 325, and 346), to be heard June 6, 2024. NantWorks
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`filed one dispositive motion (Dkt. 355), one motion to exclude (Dkt. 327), and one
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`motion to strike on May 3, 2024 (Dkt. 334). The parties also have two motions to
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`1 Bank of America had identified on May 1 two separate motions concerning NantWorks’ breach
`of contract claim. It appears the subject matter for those motions was combined into Dkt. 377
`when the motions were filed.
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`2 In early April 2024, the parties discussed these motions, including the Court’s approach to
`such motions. The parties agreed that it was not clear from the rules whether the parties were
`limited in the number of dispositive motions filed, and NantWorks agreed that the rules and Judge
`Wu’s prior practice did not appear to limit the parties to one dispositive motion per side. At no
`time, however, did NantWorks agree to an unlimited number of dispositive motions or waive the
`word count limits
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`3 Bank of America refiled corrected versions of four of its dispositive motions on May 6 and
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`May 7 due to documents that were, in error, initially filed on the public docket.
`07553-00012/14884106.2
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`Case No. 2:20-cv-7872-GW-PVC
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 4 of 10 Page ID #:46931
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`strike already pending that are also noticed to be heard on June 6, 2024. As a
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`result, sixteen motions are noticed to be heard June 6.4
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`In an email on May 4, NantWorks reiterated its objection to the number and
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`nature of the motions Bank of America filed because they circumvent the word
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`limits of L.R. 11-6.1 by splitting single issues into separate motions and because the
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`number of motions will burden both the Court and the parties with work that cannot
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`be completed within the small window of time provided under the current case
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`schedule. In this email NantWorks informed BoA that if it did not agree to agree to
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`jointly seek the Court's assistance in resolving this issue, that NantWorks intended
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`to file an ex parte application for relief. NantWorks also proposed approaching the
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`Court and possibly submitting a joint stipulation to help the parties resolve the
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`dispute.
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`On May 5, Bank of America responded via email, arguing that NantWorks
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`effectively consented to the numerous dispositive motions, that Bank of America
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`had no time to change course on its briefing when it was informed of the issue, and
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`that there was no other recourse for Bank of America to resolve the issues raised in
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`the motions it has filed, and suggesting that NantWorks concede the grounds of at
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`least four of the eight motions filed by Bank of America to resolve this issue.
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`The parties conferred on Monday, May 6, at 11 a.m. Eastern Time. During the
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`conference, Bank of America reiterated its position and denied that the motions
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`were filed to evade page limits. It was not able to articulate, however, a reason why
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`the motions on single issues such as invalidity were filed in separate motions other
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`than to say that it had a right to seek resolution of all these issues. Because of the
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`urgency, NantWorks proposed a joint stipulation to Bank of America to present the
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`4 In addition to the motions filed May 3 by the parties, NantWorks’ Motion to Strike Certain
`Opinions of Dr. Polish, Dkt. 302, and BoA’s Motion to Strike Certain Opinions of Dr. Schonfeld,
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`Dkt. 311, are also set to be heard by the Court on June 6.
`07553-00012/14884106.2
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case No. 2:20-cv-7872-GW-PVC
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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 5 of 10 Page ID #:46932
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`issue to the Court and sent the draft insert to Bank of America just prior to the call.
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`Bank of America suggested on the call reaching out to the Courtroom Deputy for
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`guidance. NantWorks agreed but also informed Bank of America that given the fast-
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`approaching deadline for opposition briefs that an ex parte application for relief
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`would be necessary if a different process was not suggested by the Court. As of the
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`close of business May 7, the parties have not heard from the Court. Because of the
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`urgency and because there appears to be no other applicable procedure, NantWorks
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`makes this application seeking urgent resolution of the issue by the Court. The
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`parties discussed the substantive relief sought by phone on May 6, 2024. On May
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`7, 2024, Nantworks sent Bank of America an email confirming that it intended to
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`file this application and Bank of America responded to the email indicating that it
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`opposes the relief sought and would file a response, but did not indicate it opposed
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`the process for seeking such relief. Eric Huang, counsel for NantWorks
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`subsequently called Dustin Edwards, counsel for Bank of America to confirm orally
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`in a voice mail that NantWorks planned to file this ex parte application.
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`Argument
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`This Court has broad authority to manage its docket and calendar. Doe K.G.,
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`2021 WL 6882383, at *1 (“The Court concludes that a decision to limit successive
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`summary judgment motions and briefing falls within its sound discretion to manage
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`its docket and secure the efficient resolution of this proceeding.”); Ancora Techs.,
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`Inc. v. TCT Mobile (US), Inc., 2020 WL 13900673, at *1 (C.D. Cal. Nov. 12, 2020)
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`(“Courts have discretion to control their dockets and ensure that their cases are
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`managed in the interest of justice.”); Johnson v. Mammoth Recreations, Inc., 975
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`F.2d 604, 607 (9th Cir. 1992) (district court has broad discretion to manage its
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`docket).
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`Although the Court and the Local Rules do not impose an express limit on the
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`number of dispositive motions a party can bring, the rules limit the word count on
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`07553-00012/14884106.2
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case No. 2:20-cv-7872-GW-PVC
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`

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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 6 of 10 Page ID #:46933
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`briefs to 7,000 words. L.R. 11-6.1. Bank of America filed 47,965 words of
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`dispositive briefing, divided into eight motions, many on the same subject.
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`Splitting up arguments to bring piecemeal motions circumvents the 7,000 word limit
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`of Local Rule 11-6.1. Many of Bank of America’s motions present alternative
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`grounds to the same issue or argument that should have been addressed in a single
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`brief.5 Of the eight dispositive motions filed on May 3 and 4, 2024 by Bank of
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`America, five motions relate to patent issues, including two separate motions
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`addressing Section 101 (Dkt. 319, 345); one motion on Section 112 (Dkt. 354); and
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`two motions addressing non-infringement (Dkt. 336, 382). There is no reason these
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`could not be brought together. The three invalidity motions relate to the same
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`experts. The motions at Dkt. 336, 382 both address non-infringement, but but Bank
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`of America divided the motions by limitation. Both motions Bank of America filed
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`that address NantWorks’ damages, Dkt. 364, 382, argue that NantWorks’ damages
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`should be limited based on purported lack of actual notice to Bank of America,
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`substantially relying on the same evidence. Separating these issues into multiple
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`motions was presumably intended to give Bank of America additional room to make
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`its arguments. Forcing NantWorks and the Court to respond and address these
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`arguments in a similar piecemeal fashion multiplies the volume of briefing,
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`increases litigation expense needlessly, and thwarts judicial and party economy.
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`Faced with similar facts suggesting an evasion of the Court’s word limit,
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`other courts have taken action to limit abuses, even without specific caps on the
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`number of motions. See, e.g., Doe K.G. v. Pasadena Hosp. Ass'n, Ltd., 2021 WL
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`6882383, at *1–3 (C.D. Cal. Nov. 3, 2021) (collecting cases and noting “Courts do
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`not typically allow a defendant to file, for example, four separate summary
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`5 Indeed, Bank of America’s decision to file one motion relating to NantWorks’ breach of
`contract claim, after first indicating on May 1 that it would file two, evinces its ability to condense
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`related arguments into one motion.
`07553-00012/14884106.2
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case No. 2:20-cv-7872-GW-PVC
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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 7 of 10 Page ID #:46934
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`judgment motions with each separate motion directed toward each of a plaintiff’s
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`four separate claims” and “this practice constitutes an end-run around the page
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`limitations set by the Local Rules”); In Re: Superior Natl Ins Gr, et al, 2:02-cv-
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`05155-PA-MLG, (C.D. Cal. Oct. 30. 2002), Dkt. 293 (striking dispositive motions
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`on different causes of action for violation of Local Rule 11-6).6
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`Finally, the schedule in this case, already condensed due to many witnesses
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`being deposed outside the fact discovery window, cannot support the excessive
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`number of dispositive motions filed by Bank of America. Opposition briefs are due
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`on May 24, 2024, giving NantWorks less than three weeks to oppose eleven
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`motions. Bank of America, in contrast, had twenty-one weeks after the close of fact
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`discovery and six weeks after the close of expert discovery to prepare its motions.
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`The Court is scheduled to hear these motions, and Daubert motions and previously
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`filed motions to strike, on June 6, 2024. Trial is set to start August 20, 2024. If
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`Bank of America’s eight dispositive motions are all addressed, the Court would be
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`faced with argument and consideration of sixteen motions on June 6: eight
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`dispositive motions and three motions to exclude filed by Bank of America, one
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`dispositive motion and one motion to exclude filed by NantWorks, and each of the
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`parties’ three motions to strike expert opinions based on untimely disclosure. The
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`parties will be hard pressed to argue all motions at the hearing, especially if other
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`matters are before the Court. The Court will also be extremely time constrained in
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`evaluating and hearing these motions by June 6, 2024. Furthermore, it will be
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`unduly burdensome for NantWorks to respond to eight dispositive motions,
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`6 See also Pinson v. 45 Dev., LLC, 2013 WL 4511321, at *3 (W.D. Ark. Aug. 23, 2013), aff’d,
`758 F.3d 948 (8th Cir. 2014) (finding “eight separate motions for partial summary judgment” “an
`unnecessary and onerous burden for Defendants in responding and for the Court in managing this
`litigation”); DeSena v. Beekley Corp., No. CIV. 09-352-P-H, 2010 WL 1049873, at *1 (D. Me.
`Mar. 17, 2010) (noting plaintiffs filed “six separate summary judgment motions to present
`segregable issues” which had the effect of “skirt[ing] the page limitation of Local Rule 7(e)” and
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`noting that this “approach violates the spirit, if not the substance, of that rule”).
`07553-00012/14884106.2
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`Case No. 2:20-cv-7872-GW-PVC
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 8 of 10 Page ID #:46935
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`including eight statements of uncontroverted fact, by May 23, 2024, and there is no
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`time to extend the schedule to mitigate the prejudice of having to respond to eight
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`dispositive motions, without altering the trial date. Nantworks has worked diligently
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`to keep the trial date on schedule, including by taking depositions of unavailable
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`Bank of America witnesses one month after the close of fact discovery and filing
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`motions before Bank of America produced its experts for deposition.
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`Requiring submission of new motions by Bank of America that comply with
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`the Local Rules cannot mitigate the prejudice from Bank of America’s numerous
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`dispositive motions because doing so would require changing the hearing date and
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`the trial. This change would unduly prejudice NantWorks, given that its claims will
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`have been pending for almost exactly four years. Accordingly, NantWorks
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`respectfully requests this Court to order that Bank of America elect to proceed on
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`only three out of the eight motions that it filed on May 3, 2024.7 The balance of
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`Bank of America’s motions can be dismissed without prejudice.
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`NantWorks provided Bank of America with notice of its position the day it
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`received the list of Bank of America’s planned motions and diligently worked to
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`resolve this issue without Court intervention. Notice of this application was served
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`on Bank of America concurrently with the filing, and pursuant to Local Rule 7-19,
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`the name, address, telephone number, and email addresses of counsel for Defendants
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`(and with whom this application has been discussed) is as follows:
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`Dustin J. Edwards
`dedwards@winston.com
`WINSTON & STRAWN LLP
`800 Capitol St., Suite 2400
`Houston, TX 77002-2925
`Telephone: (713) 651-2600
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`7 Bank of America’s eight dispositive motions cover three discrete aspects of NantWorks' claims
`at issue: liability for infringement of the asserted patents, damages from that infringement, and
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`NantWorks’ breach of contract claim.
`07553-00012/14884106.2
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`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case No. 2:20-cv-7872-GW-PVC
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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 9 of 10 Page ID #:46936
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`E. Danielle T. Williams
`dwilliams@winston.com
`WINSTON & STRAWN LLP
`300 South Tryon Street, 16th Floor
`Charlotte, NC 28202
`Telephone: (704) 350-7700
`Facsimile: (704) 350-7800
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`07553-00012/14884106.2
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`-9-
`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
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`Case No. 2:20-cv-7872-GW-PVC
`
`

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`Case 2:20-cv-07872-GW-PVC Document 408 Filed 05/08/24 Page 10 of 10 Page ID
`#:46937
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`Respectfully submitted,
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`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
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`By
`/s/ Eric Huang
`James R. Asperger
`Kevin P.B. Johnson
`Todd M. Briggs
`Eric Huang
`Rachael McCracken
`Brice C. Lynch
`
`Attorneys for Plaintiff, NANTWORKS,
`LLC and NANT HOLDINGS IP, LLC
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`1
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`DATED: May 7, 2024
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`-10-
`PLAINTIFFS’ EX PARTE APPLICATION FOR RELIEF
`REGARDING DEFENDANTS’ EXCESSIVE NUMBER OF DISPOSITIVE MOTIONS
`
`Case No. 2:20-cv-7872-GW-PVC
`
`