`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`CARIS MPI, INC.,
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`Plaintiff,
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`v.
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`FOUNDATION MEDICINE, INC.,
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`Defendant.
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`C.A. No. 1:17-cv-12194-MLW
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`JURY TRIAL DEMANDED
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`
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`CARIS MPI, INC.’S UNOPPOSED MOTION FOR LEAVE TO FILE A SURREPLY
`IN OPPOSITION TO FOUNDATION MEDICINE INC.’S MOTION TO DISMISS
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`Pursuant to Local Rule 7.1(b)(3), Plaintiff Caris MPI, Inc. (“Caris”) hereby moves this
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`Court for leave to file the attached brief surreply in opposition to Foundation Medicine Inc.’s
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`motion to dismiss the Complaint.
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`On January 16, 2018, Defendant filed a Motion to Dismiss Caris’ Complaint and an
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`accompanying brief in support thereof. (ECF Nos. 22 and 23.) On March 1, 2018, Caris filed an
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`opposition to Defendant’s motion. (ECF No. 31.) On March 20, 2018, Defendant filed a motion
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`for leave to file a reply brief, which was attached as Exhibit A. (ECF Nos. 33 and 33-1.) The
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`Court granted Defendant’s motion on April 2, 2018. (ECF No. 34.) The attached surreply is
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`necessary to allow Caris to address several errors of law and fact set forth in Defendant’s reply
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`brief, including misstatements of the applicable case law and disputed facts. For example,
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`Defendant’s brief quotes a dissent from a Federal Circuit opinion, misrepresenting the dissent as
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`the holding of the case. In addition, Defendant’s brief addresses certain additional new caselaw
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`from the Federal Circuit for the first time, requiring Caris to respond with its position thereon.
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`A copy of the proposed surreply brief is attached hereto as Exhibit A. Caris has conferred
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`with counsel for Defendant and Defendant does not oppose this motion.
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`Case 1:17-cv-12194-MLW Document 35 Filed 04/03/18 Page 2 of 3
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`Dated: April 3, 2018
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`Respectfully submitted,
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`By:
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`/s/ Adam J. Kessel
`Adam J. Kessel (BBO #661,211)
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Tel: (617) 542-5070
`FAX: (617) 542-8906
`kessel@fr.com
`
`Jonathan Singer (admitted pro hac vice)
`FISH & RICHARDSON P.C.
`12390 El Camino Real
`San Diego, CA 92130
`(858) 678-5070
`singer@fr.com
`
`Corrin Drakulich (admitted pro hac vice)
`Christina Brown-Marshall (admitted pro hac vice)
`Dexter Whitley (admitted pro hac vice)
`FISH & RICHARDSON P.C.
`1180 Peachtree Street, NE, 21st Floor
`Atlanta, GA 30309
`(404) 892-5005
`drakulich@fr.com
`brown-marshall@fr.com
`whitley@fr.com
`
`William R. Woodford (admitted pro hac vice)
`Tasha Francis (admitted pro hac vice)
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(612) 335-5070
`woodford@fr.com
`tfrancis@fr.com
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`ATTORNEYS FOR PLAINTIFF
`CARIS MPI, INC.
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`
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`Case 1:17-cv-12194-MLW Document 35 Filed 04/03/18 Page 3 of 3
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`CERTIFICATION PURSUANT TO L.R. 7.1
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`Pursuant to Local Rule 7.1, the undersigned certifies that counsel for Defendant does not oppose
`this motion.
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`/s/ Adam J. Kessel
`Adam J. Kessel
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`
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`CERTIFICATE OF SERVICE
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`I hereby certify that this document and its attachment filed through the ECF system will be sent
`electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
`and paper copies will be sent to those indicated as non-registered participants on April 3, 2018.
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`
`
`/s/ Adam J. Kessel
`Adam J. Kessel
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