Case 3:18-cv-00347-CAB-MDD Document 23 Filed 03/14/18 PageID.1011 Page 1 of 6
`
`
`NIMALKA R. WICKRAMASEKERA (SBN: 268518)
`nwickramasekera@winston.com
`STEPHEN R. SMEREK (SBN: 208343)
`ssmerek@winston.com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile:
`(213) 615-1750
`
`Attorneys for Defendants
`ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`SAN DIEGO DIVISION
`
`Plaintiff,
`
`NUVASIVE, INC., a Delaware
`corporation,
`
`
`v.
`
`ALPHATEC HOLDINGS, INC., a
`Delaware corporation and ALPHATEC
`SPINE, INC., a California corporation,
`
`Defendants.
`
`
`
`
`Case No. 3:18-CV-00347-CAB-MDD
`
`[Assigned to Courtroom 4C – Honorable
`Cathy Ann Bencivengo]
`
`DEFENDANTS ALPHATEC
`HOLDINGS, INC. AND ALPHATEC
`SPINE, INC.’S OPPOSITION TO
`REQUEST FOR ENTRY OF
`DEFAULT
`
`
`Complaint Filed: February 13, 2018
`
`
`
`DEFENDANTS ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.’S
`OPPOSITION TO REQUEST FOR ENTRY OF DEFAULT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 23 Filed 03/14/18 PageID.1012 Page 2 of 6
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Plaintiff NuVasive, Inc.’s (“NuVasive”) Request for Entry of Default against
`Alphatec Holdings, Inc. and Alphatec Spine, Inc. (collectively, “Alphatec”) is both
`legally and factually unwarranted.
`First, there is no question that a motion pursuant to Federal Rule of Civil
`Procedure (“Rule”) 12(b)(6) is a legally sufficient response to a complaint. Indeed,
`courts in this District consistently follow the majority view that a partial motion to
`dismiss tolls the time to answer the complaint:
`Federal Rule of Civil Procedure 12(a)(4) provides that a Rule
`12 motion tolls the time period within which a defendant must
`file a responsive pleading. Fed. R. Civ. P. 12(a)(4). The
`majority of courts have concluded that Rule 12(a)(4) also
`applies to a partial Rule 12(b) motion, tolling the time period
`for filing an answer to all claims contained in the complaint,
`not just the claims for which the motion seeks dismissal. . .
`. [T]his Court concludes in accordance with the majority rule
`. . . Defendants are not required to answer any part of the
`[Complaint] prior to the Court’s decision on Defendants’
`Motion to Dismiss Portions of Plaintiff’s [Complaint].
`Ingram v. Sterling, 3:14-cv-02691-GPC-DHB, at 2–3 (S.D. Cal. Aug. 16, 2016)
`(emphasis added). (Attached as Exhibit A.) Other courts in this Circuit agree.1
`
`1 See, e.g., In re Premera Blue Cross Customer Data Security Breach Litigation, 198 F.
`Supp. 3d 1183, 1191 n.15 (D. Ore. 2016) (citing ThermoLife Int’l, LLC v. Gaspari
`Nutrition, Inc., No. CV 11-01056-PHX-NVW, 2011 WL 6296833, at *5 (D. Ariz. Dec.
`16, 2011)) (following the “[m]any district courts [that] have held that a motion to
`dismiss filed by a defendant that is directed against less than all of the claims alleged
`by a plaintiff suspends the time for that defendant to answer the unchallenged claims”);
`Abbott v. Rosenthal, 2 F. Supp. 3d 1139, 1142-43 (D. Idaho 2014) (citing ThermoLife,
`2011 WL 6296833, at *5) (“[T]he majority of courts have expressly held that even
`though a pending motion to dismiss may only address some of the claims alleged, the
`motion to dismiss tolls the time to respond to all claims.”); Talbot v. Sentinel Ins. Co.,
`Ltd., No. 2:11-cv-01766- KJD-CWH, 2012 WL 1068763, at *4 (D. Nev. Mar. 29, 2012)
`(collecting cases and agreeing “with the majority of courts that have held that a pending
`motion to dismiss, although it may only address some of the claims alleged, tolls the
`time to respond to all claims under Rule 12(a)(4)”); Palantir Techs., Inc. v. Palantir.net,
`Inc., No. C 10-04283, 2011 WL 62411 (N.D. Cal. Jan. 7, 2011) (quoting Batdorf v.
`Trans Union, No. C 00–0501 CRB, 2000 WL 635455, at *5 (N.D. Cal. May 8, 2000))
`(following majority rule that “[t]he filing of a motion to dismiss the other causes of
`action enlarged the time for [the defendant] to respond to the entire complaint, including
`-1-
`DEFENDANTS ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.’S
`OPPOSITION TO REQUEST FOR ENTRY OF DEFAULT
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 23 Filed 03/14/18 PageID.1013 Page 3 of 6
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Notably, none of these cases required similarity or overlap to conclude that Rule
`12(a)(4) tolled the response period for unchallenged claims.
`NuVasive’s out-of-circuit cases do not warrant a different result. None of these
`cases grants the extraordinary relief NuVasive seeks here—a default judgment. Indeed,
`NuVasive’s primary case for the impact of a partial motion to dismiss on a defendant’s
`obligation to answer—Gerlach v. Michigan Bell Tel. Co., 448 F. Supp. 1168 (E.D.
`Mich. 1978)—has been flatly rejected by courts in this Circuit. See, e.g., Lopez v.
`County, 2016 WL 7391036, at *4, n.37 (D. Nev. Dec. 20, 2016) (“[Gerlach] appears to
`have been overwhelmingly rejected across the nation”); Pestube, 2006 WL 1441014, at
`*7 (“[Gerlach] is clearly the minority position and the recent authority is clearly
`opposed to any such holding.”). NuVasive’s reliance on Coca-Cola Fin. Corp. et al. v.
`Pure Tech Plastics LLC, which follows the rejected minority position in Gerlach, is
`also misplaced. No. 1:12-cv-00949-SJC (N.D. Ga., July 9, 2012). Far from having
`“similar circumstances,” as NuVasive asserts, the Coca-Cola case involved two sets of
`claims brought by two separate plaintiffs (Coca-Cola Recycling and Coca-Cola
`Financial). (Doc. No. 21-4 at 3.) That is not the case here.
`Second, Alphatec timely responded to the Complaint without seeking an
`extension of time—exactly as it had represented. Moreover, while Alphatec had no
`legal obligation to do so, in an effort to avoid exactly this type of dispute, it made clear
`that it would meet and confer with NuVasive about a potential early answer to the
`remainder of the Complaint:
`In any event, to be clear, we have certainly not “refused to
`even consider NuVasive’s proposal.” To the exact contrary,
`we have repeatedly responded that while we are in complete
`compliance with the federal rules (and have not misled
`anyone), we are willing to meet and confer to determine how
`
`those causes of action it did not move to dismiss”); Pestube Sys., Inc. v. HomeTeam
`Pest Defense, LLC, No. CIV-05-2832-PHX-MHM, 2006 WL 1441014, at *7 (D. Ariz.
`May 24, 2006) (collecting cases showing “majority of courts have expressly held that
`even though a pending motion to dismiss may only address some of the claims alleged,
`the motion to dismiss tolls the time to time to respond to all claims”).
`-2-
`DEFENDANTS ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.’S
`OPPOSITION TO REQUEST FOR ENTRY OF DEFAULT
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 23 Filed 03/14/18 PageID.1014 Page 4 of 6
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`to narrow or resolve the instant dispute. We are by no means
`taking off the table that we might agree to separately answer
`the utility patent claims even before a resolution of the
`pending motion to dismiss. We could also discuss the timing
`of your threatened motion for preliminary injunction.
`(Doc. No. 21-4 at 3 (emphasis added).) NuVasive refused Alphatec’s proposal to
`meet and confer and, instead, filed the present Request the very next day.
`Contrary to NuVasive’s assertions, Alphatec’s Rule 12(b)(6) motion to dismiss
`certain counts of the Complaint would streamline the issues to be decided in this case
`and foster its early resolution. Pursuant to the Local Rules of this Court, as a result of
`Alphatec’s early appearance in this case on February 28, 2018, the Early Neutral
`Evaluation conference must be scheduled, in the normal course, no later than April 27.
`Patent L.R. 2.1.a. Further, the parties must meet and confer under Rule 26(f) no later
`than April 6 (21 days before the ENE conference). A partial answer would not
`materially advance this case because, as Alphatec has already made clear, it “denies that
`it infringes any valid claim of any of the asserted patents.” (Doc. No. 20 at 5.)2
`In sum, NuVasive’s request for urgent and extraordinary relief is unfounded. It
`chose to wait nearly one year after the alleged infringement began before filing this suit
`and has continued to delay in filing its threatened motion for preliminary injunction.
`Nevertheless, Alphatec entered an early appearance in this case and timely responded
`to the Complaint without seeking any extension, consistent with the Federal Rules of
`Civil Procedure and the Local Rules of this Court. Therefore, any delay in the resolution
`of this case—including the expenditure of time and resources on NuVasive’s request
`for default judgment—is the result of NuVasive’s own doing. Accordingly, Alphatec
`
`
`2 See Ingram, 3:14-cv-02691-GPC-DHB, at 2–3 (quoting Abbott, 2 F. Supp. 3d at 1143)
`(tolling period to answer after partial motion to dismiss “further[s] the important goal
`of judicial efficiency” because “‘[o]therwise, a defendant would have to file an answer
`as to any claims not subject to the motion to dismiss, only to file a second or amended
`answer later if the motion is denied’”) (Attached as Exhibit A); Gamble v. Boyd Gaming
`Corp., No. 2:13–cv–01009–JCM–PAL, 2014 WL 1331034, at *3–4 (D. Nev. Apr. 1,
`2014)); Batdorf, 2000 WL 635455, at *5 (N.D. Cal. May 8, 2000).
`-3-
`DEFENDANTS ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.’S
`OPPOSITION TO REQUEST FOR ENTRY OF DEFAULT
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 23 Filed 03/14/18 PageID.1015 Page 5 of 6
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`respectfully requests that the Court deny NuVasive’s Request and set aside the Clerk’s
`entry of Default (Doc. No. 22).
`
`Dated: March 14, 2018
`
`WINSTON & STRAWN LLP
`
`
`By: /s/ Nimalka R. Wickramasekera
`
`NIMALKA R. WICKRAMASEKERA
`STEPHEN R. SMEREK
`Attorneys for Defendants
`ALPHATEC HOLDINGS, INC. AND
`ALPHATEC SPINE, INC.
`
`-4-
`DEFENDANTS ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.’S
`OPPOSITION TO REQUEST FOR ENTRY OF DEFAULT
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 23 Filed 03/14/18 PageID.1016 Page 6 of 6
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`CERTIFICATE OF SERVICE
`I, Mina Tunson, certify and declare as follows:
`I am over the age of 18 years and not a party to this action. My business
`address is 333 South Grand Avenue, 38th Floor, Los Angeles, California 90071. On
`March 14, 2018, I electronically filed DEFENDANTS ALPHATEC HOLDINGS,
`INC. AND ALPHATEC SPINE, INC.’S OPPOSITION TO REQUEST FOR
`ENTRY OF DEFAULT with the Clerk of the court by using the CM/ECF system
`which then sent a notification of such filing to the following:
`
`Paul D. Tripodi II
`Wilson Sonsini Goodrich & Rosati P.C.
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Telephone: (3230 210-2900
`Facsimile: (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
`I declare under penalty of perjury under the laws of the State of California and
`the United States that the foregoing is true and correct.
`Executed on March 14, 2018 at Los Angeles, California.
`
`
`By: /s/ Mina Tunson
`
`Mina Tunson
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`-5-
`DEFENDANTS ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.’S
`OPPOSITION TO REQUEST FOR ENTRY OF DEFAULT
`
`
`
`