Case 9:19-cv-81160-RS Document 918 Entered on FLSD Docket 05/07/2021 Page 1 of 6
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`Plaintiff,
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`APPLE INC.,
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`v.
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`CORELLIUM, LLC,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`CASE NO: 9:19-cv-81160-RS
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`Defendant.
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`__________________________________/
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` CORELLIUM, LLC’S EXPEDITED MOTION FOR LEAVE TO FILE
`MOTION FOR PARTIAL SUMMARY JUDGMENT AND
`INCORPORATED MEMORANDUM OF LAW
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`Defendant, Corellium, LLC (“Corellium”), by and through undersigned counsel, hereby
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`moves on an expedited basis under Local Rules 7.1(c)(2) and (d)(2) for leave to move for partial
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`summary judgment against the claim for violation of 17 U.S.C. § 1201(b) as set forth in the Fourth
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`Claim for Relief in the First Amended Complaint of Plaintiff, Apple Inc. The proposed Motion
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`for Partial Summary Judgment and Incorporated Memorandum of Law and Statement of Material
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`Facts is submitted herewith as Exhibit A (“Proposed Motion”). As further set forth in paragraph
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`1 below, Corellium requests that the Court set an expedited schedule for a response to this Motion
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`for Leave to File, so that the Court may have sufficient time to consider the Motion for Partial
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`Summary Judgment.
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`The reasons supporting this Expedited Motion for Leave are as follows:
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`1.
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`Pursuant to Local Rule 7.1(d)(2), Corellium requests this Court’s expedited
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`consideration of this instant Motion for Leave, specifically, by May 14, 2021. The Proposed
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`Motion may significantly streamline the issues for trial. The Court’s expedited consideration of
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`Plaintiff,
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`APPLE INC.,
`
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`v.
`
`CORELLIUM, LLC,
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`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`CASE NO: 9:19-cv-81160-RS
`
`
`Defendant.
`
`__________________________________/
`
`
`
`
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` CORELLIUM, LLC’S EXPEDITED MOTION FOR LEAVE TO FILE
`MOTION FOR PARTIAL SUMMARY JUDGMENT AND
`INCORPORATED MEMORANDUM OF LAW
`
`Defendant, Corellium, LLC (“Corellium”), by and through undersigned counsel, hereby
`
`moves on an expedited basis under Local Rules 7.1(c)(2) and (d)(2) for leave to move for partial
`
`summary judgment against the claim for violation of 17 U.S.C. § 1201(b) as set forth in the Fourth
`
`Claim for Relief in the First Amended Complaint of Plaintiff, Apple Inc. The proposed Motion
`
`for Partial Summary Judgment and Incorporated Memorandum of Law and Statement of Material
`
`Facts is submitted herewith as Exhibit A (“Proposed Motion”). As further set forth in paragraph
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`1 below, Corellium requests that the Court set an expedited schedule for a response to this Motion
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`for Leave to File, so that the Court may have sufficient time to consider the Motion for Partial
`
`Summary Judgment.
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`
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`The reasons supporting this Expedited Motion for Leave are as follows:
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`1.
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`Pursuant to Local Rule 7.1(d)(2), Corellium requests this Court’s expedited
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`consideration of this instant Motion for Leave, specifically, by May 14, 2021. The Proposed
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`Motion may significantly streamline the issues for trial. The Court’s expedited consideration of
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`
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`Case 9:19-cv-81160-RS Document 918 Entered on FLSD Docket 05/07/2021 Page 2 of 6
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`this Motion for Leave thus is necessary, in advance of the approaching July 6, 2021 trial date, to
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`afford the Parties an opportunity to fully brief Corellium’s Proposed Motion, and thereafter for the
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`Court to weigh the issues raised.
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`2.
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`Substantively, Local Rule 7.1(c)(2) requires a litigant to seek leave of court before
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`filing a second summary judgment motion: “Filing and service of multiple motions for partial
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`summary judgment is prohibited, absent prior permission of the Court. This prohibition does not
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`preclude a party from filing both a motion for summary judgment asserting an immunity from suit
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`and a later motion for summary judgment addressing any issues that may remain in the case.”
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`3.
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`On May 11, 2020, Corellium filed a Motion for Summary Judgment against all
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`claims in the First Amended Complaint. [D.E. 456].
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`4.
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`On December 29, 2020, the Court issued its Order on the Parties’ Motions for
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`Summary Judgment [D.E. 784], denying Apple’s motion in its entirety, granting Corellium
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`summary judgment against Apple’s First, Second, and Third Claims for Relief (alleging copyright
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`infringement), and denying Corellium’s motion with respect to Apple’s Fourth Claim for Relief
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`under the Digital Millennium Copyright Act (“DMCA”). See generally, Order.
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`5.
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`The Court granted Corellium summary judgment against Apple’s copyright claims
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`based upon its holding that “Corellium has met its burden of establishing fair use. Thus, its use of
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`iOS in connection with the Corellium Product is permissible.” Order, at 33.
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`6.
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`As explained in Corellium’s Proposed Motion, fair use is an express exception from
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`and limitation of the rights of a copyright owner. Apple thus has no right of a copyright owner to
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`protect against Corellium’s fair use. Accordingly, Apple cannot satisfy an essential element of a
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`claim under Section 1201(b)(1)(A)-(C) of the DMCA – which proscribes distribution of tools to
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`Case 9:19-cv-81160-RS Document 918 Entered on FLSD Docket 05/07/2021 Page 3 of 6
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`the public only with respect to the circumvention of a technological measure “that effectively
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`protects a right of a copyright owner under this title….”
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`7.
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`The argument presented in Corellium’s Proposed Motion has not been previously
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`presented to the Court. To counsel’s knowledge, no other court has ever been presented with the
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`precise question that Corellium’s Proposed Motion poses to the Court.
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`8.
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`Corellium’s Proposed Motion can be decided as a pure question of statutory
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`interpretation based on the Court’s finding that use of the Corellium Program constitutes fair use.
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`No additional findings of fact are necessary.
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`9.
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`Although Corellium’s Proposed Motion comes after the initial round of dispositive
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`motions, we respectfully submit it remains timely and appropriate. First, Corellium seeks through
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`its Proposed Motion to narrow and simplify the issues to be presented to the jury at trial. If the
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`Court grants Corellium’s Proposed Motion, then the jury will only be required to address Apple’s
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`claim under Section 1201(a)(2). Such streamlining of issues before trial is consistent with the
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`purpose of pretrial procedures, such as those specified in Fed. R. Civ. P. 16(c)(2). Second, the
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`issue presented to the Court in the Proposed Motion arises from this Court’s determination of fair
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`use. In that respect, it is only natural that the Court consider the further impact of its prior rulings
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`upon the remainder of the case.
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`10.
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`Finally, consideration of the Proposed Motion will not delay trial in this matter.
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`The Proposed Motion presents a straightforward issue of law that can be addressed prior to trial.
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`WHEREFORE, Defendant Corellium, LLC respectfully requests that the Court grant this
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`Expedited Motion for Leave to file, and instruct the Clerk of the Court to accept the filing of the
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`attached Motion for Partial Summary Judgment.
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`Case 9:19-cv-81160-RS Document 918 Entered on FLSD Docket 05/07/2021 Page 4 of 6
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`LOCAL RULE 7.1(A)(3) CERTIFICATION
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`Pursuant to Local Rule 7.1(a)(3), the undersigned counsel verifies that counsel for
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`Defendant conferred via telephone with counsel for Plaintiff on May 6, 2021, as well as on May
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`7, 2021 via email regarding the relief sought herein. Plaintiff opposes the Motion and the relief
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`requested herein.
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`Date: May 7, 2021
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`Respectfully submitted,
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`/s/ Seth Greenstein
`CONSTANTINE CANNON LLP
`1001 Pennsylvania Avenue, NW
`Suite 1300N
`Washington, D.C. 20004
`202-204-3500
`Seth D. Greenstein Pro hac vice
`sgreenstein@constantinecannon.com
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`and
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`/s/ Justin B. Levine
`COLE, SCOTT & KISSANE, P.A
`Esperante Building
`222 Lakeview Avenue, Suite 120
`West Palm Beach, Florida 33401
`Telephone (561) 612-3459
`S. Jonathan Vine
`Florida Bar. No.: 10966
`Jonathan.vine@csklegal.com
`Justin B. Levine
`Florida Bar No.: 106463
`Justin.levine@csklegal.com
`Lizza C. Constantine
`Florida Bar No.: 100294
`Lizza.constantine@csklegal.com
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`and
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`/s/ David Hecht
`HECHT PARTNERS LLP
`125 Park Ave., 25th Floor
`New York, NY 10017
`Telephone (212) 851-6821
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`Case 9:19-cv-81160-RS Document 918 Entered on FLSD Docket 05/07/2021 Page 5 of 6
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`David Hecht, Pro hac vice
`dhecht@hechtpartners.com
`Maxim Price, Pro hac vice
`mprice@hechtpartners.com
`Conor McDonough, Pro hac vice
`cmcdonough@hechtpartners.com
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`Attorneys for Defendant, Corellium, LLC
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`CERTIFICATE OF SERVICE
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`IT IS HEREBY CERTIFIED that on May 7, 2021, the foregoing document was filed
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`electronically with the Clerk of the Court using CM/ECF. It is also certified the foregoing
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`document is being served on all counsel of record identified on the attached Service List in the
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`manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or
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`by some other authorized manner, or a combination thereof, so as to comply with the requirements
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`of Local Rule 5.4 and other applicable rules and procedures.
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`SERVICE LIST
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`
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`Martin B. Goldberg
`mgoldberg@lashgoldberg.com
`rdiaz@lashgoldberg.com
`Emily L. Pincow
`epincow@lashgoldberg.com
`gizquierdo@lashgoldberg.com
`LASH & GOLDBERG LLP
`100 Southeast Second Street
`Miami, FL 33131
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`Kathryn Ruemmler (pro hac vice)
`kathryn.ruemmler@lw.com
`Sarang Vijay Damle (pro hac vice)
`sy.damle@lw.com
`Elana Nightingale Dawson (pro hac vice)
`elana.nightingaledawson@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street NW, Suite 1000
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`Case 9:19-cv-81160-RS Document 918 Entered on FLSD Docket 05/07/2021 Page 6 of 6
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`Washington, DC 20004
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`Andrew M. Gass (pro hac vice)
`andrew.gass@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
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`Jessica Stebbins Bina (pro hac vice)
`jessica.stebbinsbina@lw.com
`LATHAM & WATKINS LLP
`10250 Constellation Blvd., Suite 1100
`Los Angeles, CA 90067
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`Attorneys for Plaintiff,
`Apple Inc.
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