Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Case No. 1:17-cv-02097-RBJ
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`Plaintiff,
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`v.
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`REALTIME ADAPTIVE STREAMING
`LLC,
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`SLING TV L.L.C.,
`SLING MEDIA, L.L.C.,
`DISH NETWORK L.L.C.,
`DISH TECHNOLOGIES L.L.C. AND
`ARRIS GROUP, INC.,
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`Defendants.
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`JOINT MOTION TO CONSOLIDATE RELATED CASES
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`
`
`Case No. 1:17-cv-02097-RBJ
`
`
`Plaintiff,
`
`
`
`v.
`
`REALTIME ADAPTIVE STREAMING
`LLC,
`
`
`
`
`
`SLING TV L.L.C.,
`SLING MEDIA, L.L.C.,
`DISH NETWORK L.L.C.,
`DISH TECHNOLOGIES L.L.C. AND
`ARRIS GROUP, INC.,
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`Defendants.
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`JOINT MOTION TO CONSOLIDATE RELATED CASES
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`Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 2 of 8
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`Pursuant to Federal Rules of Civil Procedure 42 and D.C.COLO.LCivR 42.1, Plaintiff
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`Realtime Adaptive Streaming LLC (“Realtime”), defendant Polycom, Inc. in D. Colo. Case No.
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`1:17-cv-02692-RBJ, and defendant Apple Inc. (collectively, “Parties”) in D. Colo. Case No.
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`1:17-cv-02869-MSK-STV seek consolidation of this action with two related cases pending in
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`this District, for pre-trial scheduling purposes. The three related cases are:
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`• Realtime Adaptive Streaming LLC v. Sling TV L.L.C. et al., Civil Action No. 1:17-cv-
`02097-RBJ;
`• Realtime Adaptive Streaming LLC v. Polycom, Inc., Civil Action No. 1:17-cv-02692-
`RBJ; and
`• Realtime Adaptive Streaming, LLC v. Apple Inc., Civil Action No. 1:17-cv-02869-
`MSK-STV.
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`Defendants in the Sling Matter have indicated that they do not oppose this motion.
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`I.
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`BACKGROUND
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`Parties seek to consolidate this action, Realtime Adaptive Streaming LLC v. Sling TV
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`L.L.C. et al., Civil Action No. 1:17-cv-02097-RBJ, filed on August 31, 2017 (the “Sling
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`Matter”), with two co-pending actions: Realtime Adaptive Streaming LLC v. Polycom, Inc. (Civil
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`Action No. 1:17-cv-02692-RBJ), filed on November 10, 2017 (the “Polycom Matter”), and
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`Realtime Adaptive Streaming, LLC v. Apple Inc. (Civil Action No. 1:17-cv-02869-MSK-STV),
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`filed on November 30, 2017 (the “Apple Matter”) (collectively, the “Related Cases”).
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`The Sling Matter and the Polycom Matter are both pending before The Honorable R.
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`Brooke Jackson. The Apple Matter is currently pending before The Honorable Marcia S. Krieger
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`and referred to The Honorable Scott T. Varholak, Magistrate Judge. All three matters are in
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`relatively early phases.
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`Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 3 of 8
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`The Parties have met and conferred and agree that consolidation as to schedule would be
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`appropriate including, for example, joint hearings on common issues. However, defendants
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`would retain their rights to conduct separate discovery and motions practice and receive the full
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`scope of discovery allowable under the federal and local rules. Thus, for example, Apple and
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`DISH would have the option to file their own claim construction briefs and the defendants would
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`receive individual time allocations for depositions, consistent with the Federal and Local Rules.
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`Where practicable, defendants would coordinate discovery efforts as necessary to avoid
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`duplicative discovery on common issues. The three matters would not be consolidated for trial.
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`Scheduling Conferences have not yet occurred in the three matters and are set for March
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`7, 2018 in the Sling and Polycom matters and for March 12, 2018 in the Apple matter.
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`Because these matters are pending in the same judicial district, the Parties seek
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`consolidation of the three matters for pre-trial proceeding purposes so as to have all three cases
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`in front of a single judge according to a single, consolidated schedule up to and until the dates of
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`trial. See FED. R. CIV. P. 42(a); see also D.C. COLO. L. CIV. R. 42.1 (“MOTION TO
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`CONSOLIDATE: A motion to consolidate shall be decided by the district judge to whom the
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`lowest numbered case included in the proposed consolidation is assigned. A motion to
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`consolidate shall be given priority. Consolidated cases shall be reassigned to the judicial
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`officer(s) to whom the lowest numbered consolidated case was assigned.”). The district judge
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`assigned to the lowest numbered case is The Honorable R. Brooke Jackson, who currently
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`presides over both the Sling Matter and the Polycom Matter.
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`The following patents are at issue:
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`2
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`Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 4 of 8
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`• Sling Matter: U.S. Patent Nos. 8,934,535 (“the ’535 patent”) and 8,867,610
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`(“the ’610 Patent”);
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`• Polycom Matter: the ’535 patent and U.S. Patent Nos. 7,386,046 (“the ’046 patent”),
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`8,929,442 (“the ’442 patent”), 9,762,907 (“the ’907 patent”), and 9,769,477
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`(“the ’477 patent”);
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`• Apple Matter: the ’535, ’046, ’442, and ’477 patents, as well as U.S. Patent Nos.
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`8,634,462 (“the ’462 patent”), 9,578,298 (“the ’298 patent”).
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`The ’535 patent is shared by all three matters and the ’046, ’442, and ’477 patents are
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`additionally shared by the Polycom Matter and the Apple Matter.
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`II.
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`THE THREE CASES SHOULD BE CONSOLIDATED FOR PRETRIAL
`SCHEDULING PURPOSES.
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`Federal Rule of Civil Procedure 42(a) provides: “If actions before the court involve a
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`common question of law or fact, the court may: (1) join for hearing or trial any or all matters at
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`issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
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`unnecessary cost or delay.” FED. R. CIV. P. 42(a). The primary aim of Rule 42(a) is to enable
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`courts to dispatch cases “with expedition and economy while providing justice to the parties.”
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`Breaux v. American Family Mut. Ins. Co., 220 F.R.D. 366, 367 (D. Colo. 2004) (quoting 9 C.
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`Wright & A. Miller, FEDERAL PRACTICE & PROCEDURE § 2381 at 427 (2nd ed. 1995)).
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`“Therefore, the Court will consider both judicial economy and fairness to the parties in
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`exercising its discretion under Rule 42(a).” Crocs, Inc. v. Effervescent, Inc., No. 06-cv-00605-
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`PAB-KMT, 2017 WL 3908110, at *1 (D. Colo. Jan. 27, 2017); see Harris v. Illinois-California
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`Exp., Inc., 687 F.2d 1361, 1368 (10th Cir. 1982) (“Consolidation of cases is permitted as a
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`3
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`Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 5 of 8
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`matter of convenience and economy…[and] accomplishes those ‘considerations of judicial
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`economy and fairness’”).
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`In exercising its discretion to consolidate, “the court should take into consideration
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`whether judicial efficiency is best served by consolidation. The court generally weighs the saving
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`of time and effort that consolidation would produce against any inconvenience, delay, or expense
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`that consolidation would cause.” Otter Prod., LLC v. Treefrog Developments, Inc., No. 11-CV-
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`02180-WJM-KMT, 2013 WL 490964, at *1 (D. Colo. Feb. 7, 2013).
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`The requirements of Rule 42(a) are met here. There are one or more common issues of
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`law, as the cases share at least one patent and there are other overlapping patents. Given that the
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`cases are pending in the same judicial district, limited consolidation before a single judge in that
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`district with respect to the governing schedule and pre-trial procedures will help conserve this
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`Court’s limited resources.
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`III. CONCLUSION
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`For the foregoing reasons, the parties respectfully request consolidation of the following
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`three cases:
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`• Realtime Adaptive Streaming LLC v. Sling TV L.L.C. et al., Civil Action No. 1:17-cv-
`02097-RBJ;
`• Realtime Adaptive Streaming LLC v. Polycom, Inc., Civil Action No. 1:17-cv-02692-
`RBJ; and
`• Realtime Adaptive Streaming, LLC v. Apple Inc., Civil Action No. 1:17-cv-02869-
`MSK-STV.
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`4
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`Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 6 of 8
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`Dated: March 6, 2018
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`Respectfully submitted,
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`
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`/s/ Jay Chung
`Marc A. Fenster (CA SBN 181067)
`Reza Mirzaie (CA SBN 246953)
`Brian D. Ledahl (CA SBN 186579)
`C. Jay Chung (CA SBN 252794)
`Philip X. Wang (CA SBN 262239)
`Timothy T. Hsieh (CA SBN 255953)
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`(310) 826-7474
`mfenster@raklaw.com
`rmirzaie@raklaw.com
`bledahl@raklaw.com
`jchung@raklaw.com
`pwang@raklaw.com
`thsieh@raklaw.com
`
`Eric B. Fenster (CO Atty Reg # 33264)
`ERIC B. FENSTER, LLC
`1522 Blake Street, Suite 200
`Denver, CO 80202
`(303) 921-3530
`Eric@fensterlaw.net
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`Attorneys for Plaintiff
`Realtime Adaptive Streaming LLC
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`/s/ Abran J. Kean
`Abran J. Kean
`Paul R. Hart
`Kelly R. Hughes
`5600 Greenwood Plaza Blvd, Suite. 200
`Greenwood Village, CO 80111
`Phone: 913.777.5600
`Facsimile: 913.777.5601
`Abran.kean@eriseip.com
`Paul.hart@eriseip.com
`Kelly.hughes@eriseip.com
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`Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 7 of 8
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`Eric A. Buresh
`7015 College Blvd., Suite. 700
`Overland Park, KS 66211
`Phone: 913.777.5600
`Facsimile: 913.777.5601
`Eric.buresh@eriseip.com
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`Counsel for Defendant Polycom, Inc.
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`HOGAN LOVELLS US LLP
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`/s/ Clayton C. James
`Clayton C. James
`clay.james@hoganlovells.com
`Srecko "Lucky" Vidmar
`lucky.vidmar@hoganlovells.com
`Aaron S. Oakley
`aaron.oakley@hoganlovells.com
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`1601 Wewatta Street, Suite 900
`Denver, CO 80202
`Telephone: (303) 899-7300
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`Attorneys for Defendant Apple Inc.
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`Case 1:17-cv-02097-RBJ Document 72 Filed 03/06/18 USDC Colorado Page 8 of 8
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`CERTIFICATE OF SERVICE
`I hereby certify that the foregoing document was served on all counsel of record via
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`electronic service on March 6, 2018.
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`/s/ Jay Chung
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