ALMONDNET, INC., INTENT IQ, LLC, and
`DATONICS LLC,
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`Plaintiffs,
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`C.A. No. 24-376-MN
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`JURY TRIAL DEMANDED
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`Case 1:24-cv-00376-MN Document 27 Filed 10/15/24 Page 1 of 3 PageID #: 608
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`v.
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`LOTAME SOLUTIONS, INC.,
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`Defendant.
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`PLAINTIFFS’ OPPOSED MOTION FOR LEAVE TO FILE A SUR-REPLY IN
`OPPOSITION TO DEFENDANT’S MOTION TO DISMISS1
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`Plaintiffs AlmondNet, Inc., Intent IQ, LLC, and Datonics LLC (“AlmondNet”) respectfully
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`request, pursuant to Local Rule 7.1.2(b), for leave to file the attached (Exhibit 1 hereto) proposed
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`Sur-reply in Opposition to Lotame’s Motion to Dismiss. The basis for AlmondNet’s request for
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`such leave is set forth below.
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`Delaware District Court Local Rule 7.1.3(c)(2) provides that “[t]he party filing the opening
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`brief shall not reserve material for the reply brief which should have been included in a full and
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`fair opening brief.” “This provision exists, in part, to prevent litigants from engaging in
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`impermissible ‘sandbagging,’ reserving crucial arguments for a reply brief to which an opponent
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`cannot respond.” Chervon (HK) Ltd. v. One World Techs., Inc., 2022 WL 14812531, at *2 (D. Del.
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`Oct. 26, 2022). Similarly, this Court’s Policies and Procedures (Section II.B.2) state that “[reply]
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`briefs must be concise and address only [] issues raised by opposing counsel.”
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`1 Pursuant to D. Del. LR 7.1.1, the parties met and conferred on this motion and Defendant
`indicated that it opposes the relief sought herein.
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`Case 1:24-cv-00376-MN Document 27 Filed 10/15/24 Page 2 of 3 PageID #: 609
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`Courts in this District allow leave to file sur-reply briefs “where the proposed brief
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`responds to new evidence, facts, or arguments raised for the first time in the moving party’s reply
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`brief.” EMC Corp. v. Pure Storage, Inc., 154 F. Supp. 3d 81, 103 (D. Del. 2016); see St. Clair
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`Intellectual Prop. Consultants, Inc. v. Samsung Elecs. Co., 291 F.R.D. 75, 80 (D. Del. 2013) (“A
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`Court may grant leave to file a sur-reply if it responds to new evidence, facts, or arguments.”).
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`Courts in this District have also granted leave to file sur-reply briefs when those briefs have been
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`helpful to the Court in resolving the parties’ dispute. See e.g., Intellectual Ventures I LLC v.
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`Symantec Corp., 2019 WL 1332356, at *4 (D. Del. Mar. 25, 2019); Auer v. Lanier Worldwide,
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`Inc., 2009 WL 2169058, at *2 (D. Del. Jul. 20, 2009).
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`Lotame’s Reply (D.I. 479) improperly raises two new arguments that would have been
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`more properly (but were not) included in Lotame’s opening brief. First, Lotame alleges that past
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`damages should not be allowed because “AlmondNet initially asserted both apparatus and method
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`claims” in its complaint. (D.I. 25 at 7.) Lotame had not previously alleged that AlmondNet had
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`asserted any apparatus claims; instead, Lotame’s motion to dismiss was based on the theory that
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`the patents included both method and apparatus claims. D.I. 21 at 15-16. Indeed, Lotame’s motion
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`acknowledged that AlmondNet was “only asserting the method claims of these patents.” Id. 15
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`(“That AlmondNet is only asserting the method claims of these patents is of no matter….”); id.
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`(alleging: “AlmondNet’s assertion that the marking statute does not apply because it has only
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`asserted method claims in this suit is contrary to law.”) (internal citations omitted).
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`Second, Lotame’s Reply alleges that “[w]ithout an indirect infringement claim, AlmondNet
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`cannot continue to assert the ’445 Patent.” (D.I. 25 at 8.) This is a new argument; Lotame’s motion
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`set forth separate arguments regarding direct infringement (D.I. 21 at 8-10) and indirect
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`2
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`Case 1:24-cv-00376-MN Document 27 Filed 10/15/24 Page 3 of 3 PageID #: 610
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`infringement (id. at 11-16), and never implied that a dismissal of indirect infringement claims
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`would have any impact on direct infringement claims.
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`Because these arguments were newly raised in Lotame’s Reply brief, AlmondNet did not
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`have an opportunity to respond and thus requests leave to file the attached sur-reply (Exhibit 1)
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`that addresses these new arguments.
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`The parties met and conferred regarding AlmondNet’s request. Lotame indicated that it
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`believed the arguments discussed above were properly raised in Lotame’s opening brief, and
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`Respectfully submitted,
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`FARNAN LLP
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`/s/ Michael J. Farnan
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 777-0300
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
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`Attorneys for Plaintiffs
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`opposes this motion.
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`Dated: October 15, 2024
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`Of Counsel:
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`Reza Mirzaie
`Ben Wang
`James Milkey
`Amy Hayden
`James Tsuei
`Daniel Kolko
`Jason Wietholter
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard 12th Floor
`Los Angeles, California 90025
`Tel: 310-826-7474
`Fax: 310-826-6991
`rmirzaie@raklaw.com
`bwang@raklaw.com
`jmilkey@raklaw.com
`ahayden@raklaw.com
`jtsuei@raklaw.com
`dkolko@raklaw.com
`jwietholter@raklaw.com
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`3
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