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`Case 5:20-cv-05676-EJD Document 29 Filed 10/16/20 Page 1 of 5
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`IRELL & MANELLA LLP
`Morgan Chu (70446)
`MChu@irell.com
`Benjamin W. Hattenbach (186455)
`BHattenbach@irell.com
`C. Maclain Wells (221609)
`MWells@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile:
`(310) 203-7199
`
`Attorneys for Defendant
`DEMARAY LLC
`
`APPLIED MATERIALS, INC.,
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`
`Plaintiff,
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`Case No. 5:20-cv-05676-EJD
`
`DEMARAY LLC’S OBJECTION TO
`APPLIED MATERIALS’ REPLY
`EVIDENCE
`
`The Honorable Edward J. Davila
`
`Hearing Date: November 12, 2020
`Hearing Time: 9:00 a.m.
`
`DEMARAY LLC’S OBJECTION TO REPLY EVIDENCE
`(Case No. 5:20-cv-05676-EJD)
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`DEMARAY LLC,
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`vs.
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`Defendant.
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`10883879
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`

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`Case 5:20-cv-05676-EJD Document 29 Filed 10/16/20 Page 2 of 5
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`Defendant Demaray LLC (“Demaray”) hereby objects under N.D. Cal. Local Rule 7-
`3(d)(1) to new evidence submitted in reply by Plaintiff Applied Materials, Inc.’s (“Applied”) in
`support of Applied’s Motion for Preliminary Injunction. Dkt. No. 14 (“Motion”). Applied
`improperly waited until submitting its reply and corrected reply (Dkt. Nos. 26 (“Reply”), 28
`(“Corrected Reply”)) to submit the vast majority of the evidence on which it now purports to base
`its Motion, including all seven fact declarations on which it relies and, as an example, an Applied
`employment agreement submitted as support for its meritless licensing/ownership allegations. See,
`e.g., Dkt. Nos. 26-6, 8, 10, 12, 14. It is well-established in this district that “new evidence cannot
`be attached to a reply.” Lam Research Corp. v. Schunk Semiconductor, 2014 WL 1995799, at *2
`(N.D. Cal. May 15, 2014) (declining to consider new evidenced attached to reply in support of
`motion); see also Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273 n.3 (9th Cir. 1993) (“To the extent
`that the [reply] brief presents new information, it is improper.”). The Court should strike Applied’s
`untimely purported evidence.
`I.
`BACKGROUND
`On September 1, 2020, Applied filed its Corrected Declaratory Judgement Complaint and
`three days later filed its Motion, attaching a single attorney declaration and exhibits A-J that its
`cites in support of arguments relating to convenience of the parties. See Dkt. Nos. 14-2 through 14-
`11; Motion at 17-18. Demaray’s Opposition responded to the arguments and evidence that
`Applied’s Motion timely raised.
`Recognizing that the arguments in its opening brief had been soundly refuted, Applied—the
`movant for a preliminary injunction—attempted a near-complete evidentiary redo in its Reply brief.
`With that Reply, Applied submitted four brand new fact declarations, one from Applied itself and
`three from the defendants in the earlier-filed cases in Texas, Intel and Samsung. See, e.g., Dkt. Nos.
`26-8, 10, 12, 14.1 Applied also submitted an employment agreement and an email communication
`that Applied could have, but did not, submit with its opening filing. See Dkt. Nos. 26-6, 27-02. In
`
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`1 Applied has submitted confidential and non-confidential versions of the declarations and
`submitted certain of the declarations again in its Corrected Reply. All copies should be stricken.
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`10883879
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`DEMARAY LLC’S OBJECTION TO REPLY EVIDENCE
`(Case No. 5:20-cv-05676-EJD)
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`Case 5:20-cv-05676-EJD Document 29 Filed 10/16/20 Page 3 of 5
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`its opening brief, Applied confirmed that it is coordinating with Intel and Samsung. Dkt. No. 14 at
`12, n. 3. Thus, each piece of evidence offered was either in Applied’s possession or Applied had
`access to it at the time of its opening filing. In case that was not bad enough, on October 14,
`Applied filed a “Corrected” Reply with which it submitted three additional, brand new
`declarations from other new witnesses at various Samsung entities. See, e.g., Dkt. No. 28-10
`through 28-12.
`
`All seven of Applied’s reply declarations are from new witnesses who submitted no
`declaration attached to Applied’s opening filing. Each makes multiple new assertions that Applied
`argues support its Motion.
`II.
`LEGAL STANDARDS
`Under this Court’s local rules, “[i]f new evidence has been submitted in the reply, the
`opposing party may file and serve an Objection to Reply Evidence….” N.D. Cal. L.R. 7-3(d)(1).
`This is because “new evidence cannot be attached to a reply.” Lam Research, 2014 WL 1995799 at
`*2; see also Tovar, 3 F.3d at 1273 n.3. This Court frequently strikes, or otherwise disregards, new
`evidence submitted in reply. Id.; see also Tae Youn Shim v. Lawler, 2019 WL 2996443, at *7 (N.D.
`Cal. July 9, 2019) (“With the reply brief filed in support of their motion for partial summary
`judgment, Plaintiffs submitted fifteen exhibits. While two of these exhibits appear to be duplicates
`of evidence already in the record, the remainder consist of new evidence that Plaintiffs did not file
`with their initial motion. ‘It is well accepted that … [the] submission of new facts in [a] reply brief
`is improper.’ The Court therefore STRIKES these new exhibits.” (citations omitted and emphasis
`in original)); Roling v. E*Trade Secs. LLC, 860 F.Supp.2d 1035, 1046 (N.D. Cal. 2012) (“As for
`the Renga reply declaration, the Court shall not consider the testimony on the date the March 2005
`fee increase was posted because Mr. Renga could have, but failed to, provide that testimony in his
`initial declaration.”).
`III. OBJECTIONS
`Demaray objects to the following untimely material and arguments based thereon, and
`respectfully requests that the Court strike them:
`• The Applied employment agreement of Mukundan Narasimhan. Dkt. No. 26-6
`DEMARAY LLC’S OBJECTION TO REPLY EVIDENCE
`(Case No. 5:20-cv-05676-EJD)
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`Case 5:20-cv-05676-EJD Document 29 Filed 10/16/20 Page 4 of 5
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`(“Exhibit N”). This is “new evidence that [Applied] did not file with [its] initial
`motion,” and “[i]t is well accepted that … [the] submission of new facts in [a] reply
`brief is improper.” Tae Youn Shim, 2019 WL 2996443, at *7 (striking thirteen
`exhibits improperly submitted for the first time in reply).
`• Applied’s communications with Dr. Demaray. Dkt. No. 27-02 (“Exhibit K”). This
`email was in Applied’s possession and Applied cites it as support for its new
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`arguments regarding subject matter jurisdiction—an issue on which it has the burden
`and should have addressed in its opening filing. This is improper. See Tae Youn
`Shim, cited supra.
`• The Declaration of Keith Miller (Dkt. No. 26-14), an Applied employee, who plainly
`could have, but did not, submit a declaration with Applied’s opening submission.
`See Rodgers v. Chevys Rests., LLC, 2015 WL 909763, at *5 (N.D. Cal. Feb. 24,
`2015) (“[R]aising new facts in a reply brief … is not permitted”).
`• The Declarations of Ryan Greuter (Dkt. No. 26-8), Do Hyung Kim (Dkt. No. 26-12),
`Ross Thompson (Dkt. No. 28-10), Brittany McElmury Dietz (Dkt. No. 28-11), and
`Terrence Cross (Dkt. No. 28-12), each of whom are employed at a Samsung entity
`with which Applied is coordinating. See Dkt. No. 26-8 (¶¶ 8-14), Dkt. No. 26-12
`(¶¶ 9-19), Dkt. No. 28-10 (¶ 7), Dkt. No. 28-11 (¶¶ 5-12), and Dkt. No. 28-12 (¶¶ 7-
`12). Such declarations could have and, if Applied wanted to rely on them, should
`have, been included in Applied’s opening filing. See Rodgers, cited supra.
`• The Declaration of Thomas Herrgott (Dkt. No. 26-10), an Intel employee, who could
`have, but did not, submit a declaration with Applied’s opening submission. This is
`improper. See Rodgers, cited supra.
`• All argument in Applied’s Reply (Dkt. No. 26-4)/Corrected Reply (Dkt. No. 28-0)
`citing,2 or otherwise relying on, the above-listed improper evidence, including at
`
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`2 All page citations to “Reply” herein correspond to both Applied’s Reply and Corrected
`Reply, which Demaray understands to be the same as the redacted version of Applied’s Reply.
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`10883879
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`DEMARAY LLC’S OBJECTION TO REPLY EVIDENCE
`(Case No. 5:20-cv-05676-EJD)
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`Case 5:20-cv-05676-EJD Document 29 Filed 10/16/20 Page 5 of 5
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`least:
`o Reply at 2-3, lines 25-2 and Reply at 14, lines 19-22 (citing Exhibit K);
`o Reply at 4, lines 6-14 (citing Declarations of Herrgott, Greuter, Kim);
`o Reply at 5, lines 5-10 (citing in part Declaration of Miller);
`o Reply at 12, lines 16-22 (citing Exhibit N); and
`o Reply at 14-15, lines 25-11 (citing Declarations of Miller, Herrgott, Kim and
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`Greuter).
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`Dated: October 16, 2020
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`Respectfully submitted,
`IRELL & MANELLA LLP
`
`By: /s/ C. Maclain Wells
`C. Maclain Wells
`Attorneys for Defendant DEMARAY LLC
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`10883879
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`DEMARAY LLC’S OBJECTION TO REPLY EVIDENCE
`(Case No. 5:20-cv-05676-EJD)
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