`
`IN THE UNITED STATES COURT OF FEDERAL CLAIMS
`
`
`E-NUMERATE SOLUTIONS, INC. and
`E-NUMERATE, LLC,
`
`
`
`
`
`THE UNITED STATES,
`
`
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`No. 19-859 C
`
`Judge Lydia Kay Griggsby
`
`
`JOINT MOTION FOR AN ENLARGEMENT OF TIME OF THE BRIEFING
`SCHEDULE FOR DEFENDANT’S MOTION TO DISMISS
`PURSUANT TO RCFC 12(b)(6) AND 35 U.S.C. § 101
`
`
`
`
`Plaintiffs e-Numerate Solutions, Inc. and e-Numerate, LLC (collectively “e-Numerate”)
`
`and Defendant United States (“the Government”) jointly move this Court for an enlargement of
`
`time for e-Numerate to file its Answering Brief on the Government’s Motion to Dismiss pursuant
`
`to Rule 12(b)(6) of the Rules of the Court of Federal Claims and 35 U.S.C. § 101 and for the
`
`Government to file its Reply Brief on said motion. Specifically, the parties jointly request: (1)
`
`that e-Numerate’s Answering Brief be due on December 20, 2019; and (2) that the Government’s
`
`Reply Brief be due on January 24, 2020. This is the first request by the parties for an extension
`
`of the response and reply deadlines for this motion. The grounds for this motion are as follows.
`
`E-Numerate filed this suit on June 11, 2019 (D.I. 1) accusing the Government of
`
`infringing seven patents. E-Numerate asserted a total of 77 claims in those patents in its
`
`Complaint. The Government requested an enlargement of 60 days to move, answer or otherwise
`
`respond to the Complaint on a variety of grounds. See D.I. 5. E-Numerate did not oppose this
`
`request. See D.I. 6. As a result, the Government was effectively given 120 days to prepare its
`
`Motion to Dismiss after the filing of the Complaint.
`
`1
`
`
`
`Case 1:19-cv-00859-RTH Document 9 Filed 11/04/19 Page 2 of 3
`
`E-Numerate’s Response Brief is presently due on November 8, 2019 absent an
`
`enlargement. This is four weeks from the date the Government filed its motion to dismiss the
`
`Complaint in its entirety. E-Numerate’s Request seeks an additional 42 days to prepare its
`
`Answering Brief. This enlargement is roughly commensurate with the additional time the
`
`Government was granted to prepare its Motion to Dismiss beyond the original due date for its
`
`response to the Complaint.
`
`E-Numerate’s Request is additionally supported on the grounds that the issues involved
`
`in the Government’s motion are complex in that there are seven patents-in-suit and a total of 77
`
`presently asserted claims that have different claim language. Each patent must be addressed in
`
`response to the Government’s motion.
`
`E-Numerate is amenable to enlarging the deadline for the Government’s Reply Brief until
`
`January 24, 2020. If e-Numerate’s response brief is filed on December 20, 2019, the
`
`Government’s reply brief would be due on January 3, 2020, absent an enlargement. Thus, if the
`
`Court extends the response brief deadline, the parties jointly request that the Court also extend
`
`the reply brief deadline by 21 days, to January 24, 2020. The reason for this enlargement is to
`
`avoid the Government’s time for replying to Plaintiffs’ response largely running during year-end
`
`holidays.
`
`Granting this enlargement does not prejudice either party. There is no Scheduling Order
`
`in place and formal discovery has not yet commenced.
`
`For the above reasons, e-Numerate and the Government respectfully request that this
`
`motion be granted and that the briefing schedule on the Government’s Motion To Dismiss be
`
`enlarged as follows: (1) e-Numerate’s Answering Brief is due on December 20, 2019; and (2)
`
`the Government’s Reply Brief is due on January 24, 2020.
`
`2
`
`
`
`Case 1:19-cv-00859-RTH Document 9 Filed 11/04/19 Page 3 of 3
`
`
`
`Dated: November 4, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`November 4, 2019
`
`
`
`Of Counsel:
`SHAHAR HAREL
`Department of Justice
`
`RICHARD M. HUMES
`Associate General Counsel
`GEORGE C. BROWN
`Assistant General Counsel
`NELSON KUAN
`Senior Counsel
`Office of the General Counsel
`U.S. Securities and Exchange
`Commission
`
`
`
`Respectfully submitted,
`
`O’KELLY ERNST & JOYCE, LLC
`
`/s/Sean T. O’Kelly
`Sean T. O’Kelly
`901 N. Market Street, Suite 1000
`Wilmington, Delaware 19801
`(302) 778-4000
`(302) 295-2873 (facsimile)
`sokelly@oelegal.com
`
`and
`
`O’ROURKE LAW OFFICE, LLC
`Gerard M. O'Rourke
`1201 N. Orange Street
`Suite 7260
`Wilmington, DE 19801-1186
`(484) 770-8046
`gorourke@orourkefirm.com
`
`Attorneys for Plaintiffs e-Numerate
`Solutions, Inc. and e-Numerate LLC
`
`
`
`
`
`JOSEPH H. HUNT
`Assistant Attorney General
`
`GARY L. HAUSKEN
`Director
`
`s/Scott Bolden
`SCOTT BOLDEN
`Deputy Director
`Commercial Litigation Branch
`Civil Division
`Department of Justice
`Washington, DC 20530
`Email:
`Scott.Bolden@USDOJ.gov
`Telephone:
`(202) 307-0262
`Facsimile:
`(202) 307-0345
`
`COUNSEL FOR THE UNITED STATES OF
`AMERICA
`
`
`
`
`
`3
`
`