Case 3:18-cv-00347-CAB-MDD Document 16 Filed 02/28/18 PageID.933 Page 1 of 4
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`NIMALKA R. WICKRAMASEKERA (SBN: 268518)
`nwick.ramasekera@winston.com
`STEPHEN R. SMEREK (SBN: 208343)
`ssmerek@wi nston. com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile:
`(213) 615-1750
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`Attorney:s for Defendants
`ALPI-IATEC HOLDINGS, INC. AND ALPHA TEC SPINE, INC.
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`UNITED ST ATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`SAN DIEGO DIVISION
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`NUV ASIVE, INC., a Delaware
`corporation
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`Plaintiff,
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`v.
`ALPHA TEC HOLDINGS, INC., a
`Delaware corporation and ALPHA TEC
`SPINE, INC., a California corporation,
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`Defendants.
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`Case No. 3:18-CV-00347-CAB-MDD
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`[Assigned to Courtroom 4C - Honorable
`Cathy Ann Bencivenga]
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`[Magistrate: Hon. Mitchell D. Dembin]
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`DEFENDANTS' RESPONSE TO
`PLAINTIFF'S NOTICE OF INTENT
`TO SEEK PRELIMINARY
`INJUNCTION AND REQUEST FOR
`EXPEDITED CASE MANAGEMENT
`CONFERENCE WITH DISTRICT
`COURT JUDGE
`
`Complaint Filed: February 13, 2018
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`DEFENDANT'S REsPONSE TO PLAINTIFF'S NOTICE OF INTENT TO SEEK PRELIMINARY INJUNCTION AND REQUEST FOR
`EXPEDITED CASE MANAGEMENT CONFERENCE W ITH DISTRICT COURT JUDGE
`
`

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`Case 3:18-cv-00347-CAB-MDD Document 16 Filed 02/28/18 PageID.934 Page 2 of 4
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`Defendants Alphatec Holdings, Tnc. and Alphatec Spine, Inc. (collectively,
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`"Alphatec") respectfully submit this response to P1aintiff s Notice of Intent to Seek
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`Preliminary Injunction and Request for Expedited Case Management Conference with
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`4 District Court Judge (Dkt. 10). NuVasive has made no showing that would justify
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`altering the normal schedule dictated by the Federal Rules of Civil Procedure and the
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`6 Civil Local Rules of this Court for this case. Alphatec will timely respond to the
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`7 Complaint without seeking an extension of time and believes the parties should
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`engage in the meet and confer process and prepare for and participate in the Early
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`9 Neutral Evaluation ("ENE") Conference under CivLR 16. l(c)(l) in the nonnal course.
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`Indeed, holding the ENE Conference after Alphatec responds to the Complaint and
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`11 NuVasive files its threatened motion for preliminary injunction (if it still intends to do
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`so) would put the parties in the best position to attempt to make progress on an early
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`resolution of this case.
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`Moreover, NuVasive provides no reason to alter the normal briefing schedule if
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`it ultimately files a preliminary injunction motion. While Alphatec disagrees there is
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`any basis for NuVasive to seek a prelimjnary injunction, NuVasive's own delay
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`demonstrates no urgency that warrants an expedited schedule. Specifically, according
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`to its own Complaint, Nu Vasive waited almost a year after the allegedly infringing
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`19 Battalion Lateral System™ was publicly launched on a limited basis in April 2017
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`(Dkt. 1, ~~ 43, 131) and nearly 6 months after the Battalion Lateral System™ was
`fully launched in October 2017 (Dkt. 1, ~43) before filing this suit. In fact, it did so at
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`least two years after NuVasive investigated Alphatec's product portfolio in January
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`2016 as a result ofNuVasive's interest in acquiring Alphatec (Dkt. 1, ~~116-119). It
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`has now been nearly two weeks since Nu Vasive filed this suit (Dkt. 1 ), and almost one
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`25 week since it notified this Court that it "intends to promptly seek a preliminary
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`injunction." (Dkt. 10 at 2.) To date, NuVasive has not filed its motion. Asfilng this
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`27 Court to hold a conference on an urgent basis before Alphatec has responded to the
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`28 Complaint (due in just over one week) is not justified in light ofNuVasive's
`- 1·
`DEFENDANT'S RESPONSE TO PLAINTIFF'S NOTICE Of INTENT TO SEEK PRELIMINARY INJUNCTION AND REQUEST FOR
`EXPEDITED CASE MANAGEMENT CONFERENCE WITH DISTRICT. COURT JUDGE
`
`

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`Case 3:18-cv-00347-CAB-MDD Document 16 Filed 02/28/18 PageID.935 Page 3 of 4
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`continued willingness to sit on its hands.
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`For at least these reasons, Alphatec respectfully requests that this Court deny
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`3 NuVasive' s request and allow the case to proceed in the normal course under the
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`Federal R ules of Civil Procedure and the Local Rules of this Court.
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`6 Dated: February 28, 2018
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`WINSTON & STRAWN LLP
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`By: ls/Nimalka R. Wickramasekera
`NIMALKA R. WtCKRAMASEKERA
`STEPHEN R. SMEREK
`Attorneys for Defendants
`ALPHATEC HOLDINGS, INC. AND
`ALPHATEC SPINE, INC.
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`-2-
`DEFENDANT'S RESPONSE TO Pi,AINTIFF'S NOTICE OF INTENT TO SClEK PRELIMINARY INJUNCTION AND REQUEST FOR
`EXPEDITED CASE M ANAGEMENT CONFERENCE WlTII DISTRICT COURT JUOOE
`
`

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`Case 3:18-cv-00347-CAB-MDD Document 16 Filed 02/28/18 PageID.936 Page 4 of 4
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`CERTIFICATE OF SERVICE
`I, Mina Tunson, certify and declare as follows:
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`I am over the age of 18 years and not a party to this action. My business
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`address is 333 South Grand Avenue, 381h Floor, Los Angeles, California 90071. On
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`5 February 28, 2018, I electronically filed DEFENDANTS' RESPONSE TO
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`6 PLAINTIFF'S NOTICE OF INTENT TO SEEK PRELIMINARY
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`7
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`INJUNCTION AND REQUEST FOR EXPEDITED CASE MANAGEMENT
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`8 CONFERENCE WITH DISTRICT COURT JUDGE with the Clerk of the court
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`by using the CM/ECF system which then sent a notification of such filing to the
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`following:
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`Paul D. Tripodi II
`Wilson Sonsini Goodrich & Rosati P.C.
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Telephone: (3230 210-2900
`Facsi.1:11ile: (866) 974-7329
`Email: ptripodi@wsgr.com
`
`Wendy L. Devine
`Wilson Sonsini Goodrich & Rosati P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Telephone: (415) 947-2000
`Facsimile: (415) 947-2099
`Email: wdevine@wsgr.com
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`I declare under penalty of perjury under the laws of the State of California and
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`the United States that the foregoing is true and correct.
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`Executed on February 28, 2018 at Los Angeles, California.
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`By: s/s Mina Tunson
`Mina Tunson
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`-3-
`D EFENDANT'S RESPONSE TO PLAINTIFF'S NOTICE OF INTENT TO SEEK PRELIMINARY INJUNCTION AND REQUEST FOR
`EXPEDITED CASE M ANAGEMENT' CONFERENCE WITH D ISTRICT COURT JUDGE
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