`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`SIPCO LLC, and
`IP CO., LLC (d/b/a INTUS IQ)
`
`Plaintiffs,
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`
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`v.
`
`EMERSON ELECTRIC CO., FISHER-
`ROSEMOUNT SYSTEMS, INC., and
`ROSEMOUNT INC.,
`
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
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`Civil Action No. 6:15-CV-907-JRG-KNM
`
`
`
`
`MOTION OF EMERSON ELECTRIC CO.,
`FISHER-ROSEMOUNT SYSTEMS, INC. AND ROSEMOUNT INC.
`TO STAY THIS ACTION PENDING DISMISSAL OR TRANSFER
`
`Defendants Emerson Electric Co., Fisher-Rosemount Systems, Inc., and Rosemount Inc.
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`(collectively “Emerson”) respectfully request that this Court stay this action pending resolution
`
`of the Emerson’s motion to dismiss or transfer.
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`A district court has general discretionary power to stay proceedings before it in the
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`control of its docket and in the interests of justice. McNight v. C.H. Blanchard, 667 F.2d 477,
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`479 (5th Cir. 1982). The court must “weigh competing interests and maintain an even balance”
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`between the party advocating a stay and the party opposing the stay. Landis v. North American
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`Co., 229 U.S. 248, 254-55 (1936). As between pending actions in federal district courts, “the
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`general principle is to avoid duplicative litigation.” Evanston Insurance Co. v. Jimco, Inc., 844
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`F.2d 1185, 1190 (5th Cir. 1988) (quoting Colorado River Water Conservation District v. United
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`States, 424 U.S. 800, 817 (1976). In deciding to stay proceedings pending resolution of a request
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`to transfer, courts generally consider three factors: (1) potential prejudice to the non-movant; (2)
`
`
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`Case 1:16-cv-02690-AT Document 13 Filed 12/10/15 Page 2 of 4
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`hardship and inequity to the movant if the action is not stayed; and (3) the judicial resources that
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`would be saved by avoiding duplicative litigation. Hernandez v. ASNI, Inc., 2015 WL 3932415
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`(D. Nev. 2015) (staying proceedings pending resolution of a request to transfer to a MDL).
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`In the instant action, Plaintiffs have initiated a second action in which they assert
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`numerous patents from the same two patent families already at issue in the Northern District of
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`Georgia, the first-filed action (Action No. 1:15-cv-00319-AT). Given the substantial overlap of
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`issues presented in these two cases, Emerson has moved this Court to dismiss or transfer the
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`allegations brought by Plaintiffs in this action. See Emerson’s Motion to Dismiss or Stay, filed
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`concurrently. This action should be stayed while that motion is pending. A stay at this early
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`junction will conserve the resources of this Court and the parties and will not prejudice Plaintiffs.
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`The Plaintiffs have it within their own power to shorten any delay by expediting their response to
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`the motion to dismiss or stay. Further, Plaintiffs cannot be heard to complain any delay that
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`might be occasioned by resolution of that motion as it was the Plaintiffs who created the problem
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`by filing related infringement claims in two different forums.
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`For the foregoing reasons, Emerson respectfully requests that this Court stay this action
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`pending resolution of the Emerson’s motion to dismiss or transfer.
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`-2-
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`
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`Case 1:16-cv-02690-AT Document 13 Filed 12/10/15 Page 3 of 4
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`Dated: December 10, 2015
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`
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`
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`Respectfully submitted,
`
`/s/_Melissa R. Smith
`Melissa R. Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`Email: melissa@gillamsmithlaw.com
`
`
`Donald L. Jackson
`James D. Berquist
`J. Scott Davidson
`DAVIDSON BERQUIST JACKSON &
`GOWDEY, LLP
`8300 Greensboro Dr., Suite 500
`McLean, VA 22102
`
`Attorneys for Defendants Emerson Electric
`Co., Fisher-Rosemount Systems, Inc., and
`Rosemount Inc.
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on this 10th day of December, 2015, a true and
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`correct copy of the foregoing document has been served via the Court’s ECF system to all
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`counsel of record.
`
`/s/ Melissa R. Smith______________
`Melissa R. Smith
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`-3-
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`Case 1:16-cv-02690-AT Document 13 Filed 12/10/15 Page 4 of 4
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`CERTIFICATE OF CONFERENCE
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`
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`Pursuant to L.R. CV-7(i), the undersigned hereby certifies that counsel for Defendants
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`met and conferred on December 10, 2015 and have complied with L.R. CV- 7(h). Plaintiff
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`opposes the motion, conclusively leaving the parties at an impasse, and an open issue for the
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`Court to resolve.
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`
`
`/s/ Melissa Smith
`Melissa Smith
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`-4-
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`
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