Case 1:16-cv-00830-RGA Document 28 Filed 07/10/17 Page 1 of 5 PageID #: 2183
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`SIPCO, LLC, and IP CO., LLC (d/b/a
`INTUS IQ),
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`Plaintiffs,
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`STREETLINE, INC.; KAPSCH
`TRAFFICCOM HOLDING CORP.; and
`KAPSCH TRAFFICCOM U.S. CORP.,
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`Defendants.
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`Civ. No. 1: 16-cv-00830-RGA
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`PLAINTIFF SIPCO’S RESPONSE TO DEFENDANTS’
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`MOTION FOR EXTENSION OF TIME TO REPOND TO COMPLAINT
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`Dated: July 10, 2017
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`George Pazuniak DE (No. 478)
`Daniel P. Murray (DE No. 5785)
`O’Kelly Ernst & Joyce, LLC
`901 N. Market Street, Suite 1000
`Wilmington, Delaware 19801
`(302) 478-4230 / 778-4000
`(302) 295-2873 (facsimile)
`gp@del-iplaw.com
`dmurray@oeblegal.com
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`Case 1:16-cv-00830-RGA Document 28 Filed 07/10/17 Page 2 of 5 PageID #: 2184
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`Plaintiffs SIPCO, LLC and IP CO, LLC (collectively, “Plaintiffs”) hereby submit this
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`Memorandum in opposition to the Motion For Extension Of Time To Respond To The Second
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`Amended Complaint, filed by Defendants Streetline, Inc., Kapsch TrafficCom Holding Corp.
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`and Kapsch TraffiCom U.S. Corp. (collectively “Defendants”) (“Motion”).
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`I. DEFENDANTS FAILED TO COMPLY WITH LOCAL RULE 7.1.1
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`Defendants’ Motion includes a purported “Rule 7.1.1 Statement.” (DI 27 at p. 4).
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`Defendants failed to comply with Local Rule 7.1.1, however, and Defendants’ statement is
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`insufficient to allow consideration of Defendants’ Motion.
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`Local Rule 7.1.1 requires “oral communication that involves Delaware counsel for any
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`moving party and Delaware counsel for any opposing party.” No such communications were
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`ever proposed or took place. Further, the Rule provides that “[u]nless otherwise ordered, failure
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`to so aver may result in dismissal of the motion.” In view of the failure to have the necessary
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`oral communication and failure to so aver, the Motion should be dismissed.
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`The failure to comply with the Rule is not merely a matter of form. As shown in the
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`emails attached to Defendants’ Motion, Plaintiffs were questioning “why do you need more
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`time,” and particularly an additional month, to which Defendants never responded. (DI 27-1,
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`Exhibit A). Proper engagement could have resolved the issues.
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`II. DEFENNDATS DO NOT JUSTIFY A MONTH DELAY
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`As Defendants admit, Plaintiffs agreed to afford Defendants a 28-day extension to answer
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`the Second Amended Complaint. But, Defendants never provided any reasons for why
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`Defendants required an additional 28 days to otherwise respond to the Complaint, if Defendants
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`would not answer the Complaint.
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`Case 1:16-cv-00830-RGA Document 28 Filed 07/10/17 Page 3 of 5 PageID #: 2185
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`Defendants’ Motion for the first time states that Defendants require the additional month
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`to determine whether Plaintiffs’ claim charts, which Plaintiffs attached to the Complaint, “allege
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`sufficient facts to state a plausible claim for infringement under Twombly/Iqbal.” (DI 27 p. 2).
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`Defendants’ argument is meritless. Even a cursory review of the Second Amended complaint
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`and the attached claim charts demonstrates that there 284 pages of charts, and that every element
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`of every claim in each of the asserted patents is tied to Defendants’ Streetline parking system and
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`method of using that system. (DI 25, 26). There can be no legitimate question that, by providing
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`the detailed claim charts which tie every claim element to the Accused Instrumentalities,
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`Twombly/Iqbal has been more than satisfied.
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`Defendants propose that they require time for a detailed analysis of the claim charts. But,
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`there is nothing in such analysis that can support a motion to dismiss. There may be claim
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`construction issues that may be raised in the future, and there may be disputes as to whether a
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`claim element is satisfied by the Accused Instrumentalities. But, these are not issues under
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`Twombly/Iqbal. Plaintiffs are required to plead grounds of its entitlement to relief, and, having
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`done so, that ends the Rule 12(b)(6) inquiry. The Court is not permitted to perform claim
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`constructions or to assess the merits of Plaintiffs’ infringement contentions at this stage of the
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`proceedings.
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`Defendants’ second argument, also raised for the first time in its Motion, is that one of
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`their counsel is “currently studying to take the California Bar Exam, which will be held on July
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`25.” But, Stroock & Stroock & Lavan LLP is a large law firm with hundreds of lawyers in New
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`York, Washington DC and Miami, in addition to their office in Los Angeles. Defendants should
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`not be asking for a month delay in filing a preliminary motion simply because one associate has
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`Case 1:16-cv-00830-RGA Document 28 Filed 07/10/17 Page 4 of 5 PageID #: 2186
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`moved to the Los Angeles office. Moreover, Defendants did not raise this as a justification for
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`the delay, before filing the Motion.
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`Defendants’ third argument, also raised for the first time in its Motion, is that “Plaintiffs’
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`Second Amended Complaint fails to cure the deficiencies of the prior Complaints pertaining to
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`the alleged involvement of the Kapsch Defendants in the allegedly infringing conduct.” (DI 27 p.
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`2). Defendants’ argument is self-defeating. Defendants admit that they intend to raise the same
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`issue as before. Yet, the issue was previously briefed, and the Court did not find any fault
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`Plaintiffs’ allegations against the Kapsch Defendants. (Cf., DI 24). But, even if Defendants
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`want to again raise the issue, Defendants admit that it is the same argument that they had
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`previously made. Defendants do not require a 28-day extension to repeat the same argument as
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`before.
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`Finally, Defendants allege that “Plaintiffs cannot identify any genuine prejudice that they
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`would suffer from a 28-day extension.” Plaintiffs are prejudiced. To be sure, in retrospect
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`Plaintiffs were too short in their initial Complaint. Taking seriously the Court’s initial decision,
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`Plaintiffs thought they had rectified the deficiency in the First Amended Complaint by clearly
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`identifying the Accused Instrumentalities. That Complaint turned out to be insufficient also, as
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`the Court noted that the relationship of the products and methods pled in the Complaint t the
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`asserted patent claims was not sufficiently understandable to one not skilled in the art. Plaintiffs
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`believed that Defendants should have easily understood Plaintiffs’ rationale for the allegations
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`against the Accused Instrumentalities. But, to avoid further burdening the Court, rather than
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`merely providing more detailed pleadings, Plaintiffs finalized and filed claim charts for every
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`patent, to demonstrate, element-by-element, how the previously-pled Accused Instrumentalities
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`met each claim element.
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`Case 1:16-cv-00830-RGA Document 28 Filed 07/10/17 Page 5 of 5 PageID #: 2187
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`The case has now been delayed long enough. Plaintiffs have gone far beyond what is
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`normally required of pleadings by providing claim charts to demonstrate Plaintiffs’ infringement
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`contentions. In response, Defendants provided no explanation, and did not follow Local Rule
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`7.1.1, but simply filed the Motion seeking another month’s delay, in which Defendants raised for
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`the first time arguments that are not only meritless, but should have been raised in a proper meet-
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`and confer. Defendants seek to delay based on a legally-meritless argument that a motion to
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`dismiss can be based by challenging the truth of the well-pleaded allegations of the Complaint.
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`The delay is prejudicial and Defendants have not provided any justification for the delay.
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`WHEREFORE, Plaintiffs respectfully request that the Defendants’ Motion be denied.
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`Dated: July 10, 2017
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`Respectfully submitted,
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`/s/ George Pazuniak
`George Pazuniak DE (No. 478)
`Daniel P. Murray (DE No. 5785)
`O’Kelly Ernst & Joyce, LLC
`901 N. Market Street, Suite 1000
`Wilmington, Delaware 19801
`(302) 778-4000
`(302) 295-2873 (facsimile)
`gp@del-iplaw.com
`dmurray@oeblegal.com
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