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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`IN RE PERSONALWEB
`TECHNOLOGIES, LLC, ET AL., PATENT
`LITIGATION
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`Case No. 18-md-02834-BLF
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`ORDER GRANTING IN PART AND
`DENYING IN PART PERSONALWEB'S
`ADMINISTRATIVE MOTION FOR
`RELIEF
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`Currently before the Court is PersonalWeb Technologies, LLC and Level 3
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`Communications LLC (collectively, “PersonalWeb”) administrative motion for relief related to
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`Amazon.com, Inc. and Amazon Web Services, Inc. (collectively, “Amazon”) reply in support of
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`Amazon’s motion for summary judgment. ECF No. 354 (“Mot.”). PersonalWeb requests that the
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`Court strike Section H of Amazon’s reply, or in the alternative PersonalWeb requests leave to file
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`a sur-reply. For the reasons stated below, the Court DENIES PersonalWeb’s request to strike and
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`GRANTS PersonalWeb’s request to file a sur-reply.
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`I.
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`DISCUSSION
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`A. Request to Strike
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`PersonalWeb argues that Amazon’s reply improperly raised for the first time the issue of
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`whether PersonalWeb has standing to assert patent infringement regarding CloudFront. Mot. at 1.
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`See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider
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`arguments raised for the first time in a reply brief.”).
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`In the motion for summary judgment, Amazon “request[ed] that the Court . . . bar
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`PersonalWeb from asserting any claim against Amazon or its customers that relates to the use or
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`operation of S3.” ECF No. 315 at 2. PersonalWeb’s opposition argued that claim preclusion did
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`Case 5:18-md-02834-BLF Document 360 Filed 02/06/19 Page 2 of 3
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`not apply because, inter alia, Amazon “ignore[d] ‘CloudFront’ and the role that separate product
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`plays in the infringement.” ECF No. 334 at 3. In direct response to PersonalWeb’s argument,
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`Amazon’s reply brief argued that CloudFront is a content delivery network and that “PersonalWeb
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`affirmatively allege[d] that it does not assert any claims against any content delivery networks.”
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`ECF No. 350 at 8-9. Moreover, Amazon argued that PersonalWeb did not have standing to assert
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`claims related to CloudFront under the agreement between Kinetech, Inc. and Digital Island, Inc.,
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`(“Kinetech-Digital Island Agreement”) which governed PersonalWeb’s right to assert the patents-
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`in-suit. ECF No. 350 at 9-10.
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`The Court finds that Amazon’s arguments regarding CloudFront were properly limited to
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`responding to PersonalWeb’s arguments in its opposition. Accordingly, the Court denies
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`PersonalWeb’s request to strike Section H of Amazon’s reply.
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`B. Request to File a Sur-Reply
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`In the alternative, PersonalWeb requests leave to file a sur-reply. PersonalWeb argues that
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`it will be prejudiced if it is not given the opportunity to respond to Amazon’s arguments regarding
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`standing. Mot. at 1.
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`Civil Local Rule 7-3 governs filing of supplementary material and controls the analysis of
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`PersonalWeb’s request to file a sur-reply. Under Civil Local Rule 7-3, “[o]nce a reply is filed, no
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`additional memoranda, papers or letters may be filed without prior court approval.” Civ. L. R. 7-
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`3(d). When a party “raises a new argument or presents new evidence in a reply brief, a court may
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`consider these matters only if the adverse party is given an opportunity to respond.” Banga v.
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`First USA, NA, 29 F. Supp. 3d 1270, 1276 (N.D. Cal. 2014).
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`Here, Amazon’s reply brief was limited to responding to PersonalWeb’s arguments.
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`However, in doing so, Amazon presented evidence regarding the relevance of the Kinetech-Digital
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`Island Agreement. In its proposed sur-reply, PersonalWeb argues that Amazon misinterprets the
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`Kinetech-Digital Island Agreement. Accordingly, the Court finds good cause to allow
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`PersonalWeb to file a sur-reply. PersonalWeb’s motion for relief to file a sur-reply is GRANTED.
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`The Court will consider PersonalWeb’s sur-reply brief filed at ECF No. 354-1.
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`II.
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`CONCLUSION
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`Northern District of California
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`United States District Court
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`Case 5:18-md-02834-BLF Document 360 Filed 02/06/19 Page 3 of 3
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`For the foregoing reasons, PersonalWeb’s request to strike Section H of Amazon’s reply is
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`DENIED and PersonalWeb’s request for leave to file a sur-reply is GRANTED.
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`IT IS SO ORDERED.
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`Dated: February 6, 2019
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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