Case 5:18-md-02834-BLF Document 559 Filed 10/31/19 Page 1 of 3
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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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`AMAZON.COM, INC., et al.,
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`Plaintiffs,
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`v.
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`PERSONAL WEB TECHNOLOGIES, LLC,
`et al.,
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`Defendants.
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`ORDER DENYING
`PERSONALWEB’S MOTION FOR
`ENTRY OF JUDGMENT
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`[Re: ECF 538]
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`Case No. 18-cv-00767-BLF
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`[Re: ECF 152]
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`Before the Court is PersonalWeb Technologies, LLC’s (“PersonalWeb”) motion for final
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`judgment of non-infringement pursuant to Federal Rule of Civil Procedure 54(b). Mot., ECF 538.
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`Defendants Amazon.com Inc. and Amazon Web Services, Inc. (collectively, “Amazon”) oppose the
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`motion. Opp’n, ECF 547. In its reply brief, PersonalWeb changes course and asserts that “Rule
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`54(b) may not technically be the correct rule for this motion” and now seeks to “dismiss this entire
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`action pursuant to Rule 41(a)(2).” Reply at 3-4, ECF 548. Having considered the parties’ respective
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`written submissions, the Court finds the matter appropriate for submission without oral argument.
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`Civ. L.R. 7-11(b). The Court therefore VACATES the hearing scheduled for January 23, 2020. For
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`the reasons stated below, the Court DENIES PersonalWeb’s motion for entry of judgment.
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`I. BACKGROUND
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`The facts of this multidistrict litigation (“MDL”) are well known to the parties and the Court
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`need not recite them in detail here. See In re PersonalWeb Techs., LLC, et al. Patent Litig., No. 18-
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`MD-02834-BLF, 2019 WL 1455332, at *1-4 (N.D. Cal. Apr. 2, 2019). In brief, this Court issued
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`Case 5:18-md-02834-BLF Document 559 Filed 10/31/19 Page 2 of 3
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`its Claim Construction Order on August 16, 2019. ECF 485. Based on the Court’s construction of
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`the disputed terms “unauthorized or unlicensed” and “authorization” PersonalWeb conceded that it
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`cannot meet its burden of proving infringement. Mot. at 2. PersonalWeb argues that entry of final
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`judgment of non-infringement in Amazon’s favor “will allow the parties to forego further litigation
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`and conserve judicial resources in this case while preserving PersonalWeb’s right to appeal the
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`Court’s Claim Construction Order.” Id.
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`Amazon opposes for three reasons: (1) Amazon has raised additional non-infringement
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`arguments at summary judgment that are independent from the claim construction issue, (2)
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`PersonalWeb’s proposed judgment (non-infringement without prejudice) as to U.S. Patent No.
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`5,978,791 (the “’791 patent”) would give PersonalWeb the opportunity to re-assert the patent, and
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`(3) any appeal in PersonalWeb Technologies, LLC et al v. Twitch Interactive, Inc., No. 5:18-cv-
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`05619-BLF (N.D. Cal.) (the “Twitch Action”) will likely present identical claim construction issues
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`and overlapping non-infringement arguments and therefore, motions for summary judgment in both
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`actions should be heard concurrently. Opp’n at 3-4.
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`PersonalWeb responds that the Court should enter a judgment “to avoid having to work up
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`the entirety of the summary judgment motion based on issues that Amazon had never raised until
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`now—work that will be entirely wasted if Amazon prevails in the appeal on claim construction[.]”
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`Reply at 1, ECF 548. Additionally, PersonalWeb offers to modify its proposed order and final
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`judgment to include a declaratory judgment of noninfringement regarding U.S. Patent No. 7,945,544
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`(the “’544 patent”) and ’791 patents. Id. As for the Twitch Action, PersonalWeb distinguishes the
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`case that Amazon cites, but fails to provide a counter argument other than “delaying entry of
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`judgment in this action is burdensome on the parties and incongruous with protecting judicial
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`economy.” Id. at 3. Finally, PersonalWeb abandons Rule 54(b) as the basis for its motion and asks
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`this Court to dismiss “this entire action pursuant to Rule 41(a)(2).” Id. at 3-4.
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`II. DISCUSSION
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`First, the Court addresses PersonalWeb’s Rule 41(a)(2) argument—raised for the first time
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`in its reply brief. District courts need not consider arguments raised for the first time in a reply brief.
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`Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). It would be unfair to the non-moving party
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`Case 5:18-md-02834-BLF Document 559 Filed 10/31/19 Page 3 of 3
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`to decide the motion on grounds not raised in the moving papers. See Estate of Bojcic v. City of San
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`Jose, No. C05-3877 RS, 2007 WL 3232221, at *1 (N.D. Cal. Oct. 31, 2007). Accordingly, the Court
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`declines to consider PersonalWeb’s invitation to dismiss “this entire action,” which the Court
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`presumes is meant to include all cases consolidated in this MDL, under Rule 41(a)(2).1
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` As for the substance of PersonalWeb’s motion, the Court agrees with Amazon. Amazon
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`has raised additional non-infringement arguments at summary judgment that are independent from
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`the claim construction issue PersonalWeb plans to appeal. At this late stage in the litigation, the
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`Court does not see a valid reason to deprive Amazon of a ruling on its summary judgment motion,
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`which is filed and is scheduled to be heard in two weeks. Amazon is correct in noting that the
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`Federal Circuit can affirm a judgment of non-infringement based on any ground supported by the
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`record, and without a decision from this Court, Amazon will be foreclosed from raising its additional
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`arguments on appeal. See Opp’n at 3.
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`The Court also finds Amazon’s argument regarding the Twitch Action persuasive. This
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`MDL includes the Twitch Action, which the Court has designated—as a representative for the
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`numerous customer cases—to proceed along with the Amazon matter. ECF 313. Decoupling these
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`cases at this late stage will be contrary to the efficiencies desired by the parties and the Court
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`throughout this MDL.
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`III. CONCLUSION
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`For the foregoing reasons, the Court DENIES PersonalWeb’s motion for entry of judgment
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`of non-infringement.
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`IT IS SO ORDERED.
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`Dated: October 31, 2019
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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`1 PersonalWeb’s choice of Rule 41(a)(2) is puzzling to the Court. Rule 41(a)(2) is invoked “at the
`plaintiff’s request ….” Fed. R. Civ. P. 41(a)(2). Amazon (not PersonalWeb) is the plaintiff in this
`action for declaratory judgment.
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`Northern District of California
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`United States District Court
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