Case 2:15-cv-01470-JRG-RSP Document 65 Filed 06/01/17 Page 1 of 6 PageID #: 2674
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:15-CV-1470-JRG-RSP
`
`TICKETNETWORK, INC., ET AL.
`
`Plaintiffs,
`
`v.
`
`CEATS, INC.
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
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`§
`§
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`PLAINTIFFS’ MOTION FOR VOLUNTARY DISMISSAL OF COMPLAINT
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`Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, Plaintiffs
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`TicketNetwork, Inc. and Ticket Software LLC (together, “TicketNetwork”), hereby move to
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`voluntarily dismiss the Complaint against Defendant, CEATS, Inc. (“CEATS”). In support
`
`hereof, TicketNetwork asserts as follows:
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`1.
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`TicketNetwork’s Complaint contains three counts. (Dkt. No. 1). Count One seeks
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`a declaratory judgment that royalty obligations set forth in the parties’ Settlement and License
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`Agreement are unenforceable based upon a prior judgment invalidating certain claims of patents
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`purportedly owned by CEATS (“Count One”). Count Two seeks a declaratory judgment of non-
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`infringement of patents purportedly owned by CEATS (the “CEATS Patents”). Count Three
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`seeks a declaratory judgment of invalidity of the CEATS Patents.
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`2.
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`CEATS has both filed an Answer and asserted a counterclaim. Its counterclaim
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`alleges that TicketNetwork breached the parties’ Settlement and License Agreement and CEATS
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`seeks an accounting (“Counterclaim”). (Dkt. No. 26). In its answer to the Counterclaim,
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`TN-1013
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:15-CV-1470-JRG-RSP
`
`TICKETNETWORK, INC., ET AL.
`
`Plaintiffs,
`
`v.
`
`CEATS, INC.
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`PLAINTIFFS’ MOTION FOR VOLUNTARY DISMISSAL OF COMPLAINT
`
`Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, Plaintiffs
`
`TicketNetwork, Inc. and Ticket Software LLC (together, “TicketNetwork”), hereby move to
`
`voluntarily dismiss the Complaint against Defendant, CEATS, Inc. (“CEATS”). In support
`
`hereof, TicketNetwork asserts as follows:
`
`1.
`
`TicketNetwork’s Complaint contains three counts. (Dkt. No. 1). Count One seeks
`
`a declaratory judgment that royalty obligations set forth in the parties’ Settlement and License
`
`Agreement are unenforceable based upon a prior judgment invalidating certain claims of patents
`
`purportedly owned by CEATS (“Count One”). Count Two seeks a declaratory judgment of non-
`
`infringement of patents purportedly owned by CEATS (the “CEATS Patents”). Count Three
`
`seeks a declaratory judgment of invalidity of the CEATS Patents.
`
`2.
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`CEATS has both filed an Answer and asserted a counterclaim. Its counterclaim
`
`alleges that TicketNetwork breached the parties’ Settlement and License Agreement and CEATS
`
`seeks an accounting (“Counterclaim”). (Dkt. No. 26). In its answer to the Counterclaim,
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`Case 2:15-cv-01470-JRG-RSP Document 65 Filed 06/01/17 Page 2 of 6 PageID #: 2675
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`TicketNetwork denied CEATS’ claims for relief and asserted affirmative defenses barring
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`CEATS’ claims based on waiver and estoppel, among others grounds. (Dkt. No. 28).
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`3.
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`During a Scheduling Conference held before Judge Payne on May 12, 2016, the
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`parties agreed, for efficiency purposes, to bifurcate the claims at issue in this action. The Court
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`thereafter entered an Order instructing the parties to “complete any necessary discovery and
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`disclosures” limited to the contractual issues raised in TicketNetwork’s Count One and in
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`CEATS’ Counterclaim (the “Order”). (Dkt. No. 32). The Order further instructed the parties to
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`file motions for summary judgment on the contractual issues by September 9, 2016, with a
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`hearing on October 13, 2016. (Id.). Counts Two and Three of TicketNetwork’s Complaint were
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`expressly omitted from this discovery and summary judgment briefing schedule and effectively
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`stayed. (Id.).
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`4.
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`On September 9, 2016, TicketNetwork filed a Motion for Partial Summary
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`Judgment as to Count One. (Dkt. No. 38). On that same day, CEATS filed a Motion for
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`Summary Judgment, seeking judgment in its favor on that same count. (Dkt. No. 35). CEATS
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`did not move for summary judgment or seek discovery in support of its Counterclaim. Neither
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`party moved for summary judgment or pursued discovery as to Counts Two and Three.
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`5.
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`Following a hearing, the Court entered a Recommended Ruling on October 25,
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`2016, denying both motions for summary judgment. (Dkt. No. 56). The Court held that neither
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`party had met its burden under Rule 56(a) of the Federal Rules of Civil Procedure. (Id.). The
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`Court further held determining the enforceability of the royalty provisions of the Settlement and
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`License Agreement would require further discovery and expert testimony as to the effect of the
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`Case 2:15-cv-01470-JRG-RSP Document 65 Filed 06/01/17 Page 3 of 6 PageID #: 2676
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`prior court judgment invalidating certain claims of the CEATS Patents on the 400-plus
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`remaining claims of the CEATS Patents. (Dkt. No. 56 at 4, 7).
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`6.
`
`On May 24, 2017, the Court entered a Docket Control Order providing, among
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`other things, a trial date of January 8, 2018 and scheduling a Markman hearing for July 14, 2017.
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`(Dkt. No. 64).
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`7.
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`As of the date of this Motion, the parties have not engaged in any further
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`discovery on Count One of TicketNetwork’s Complaint since cross-motions for summary
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`judgment were filed by both parties on September 9, 2016.
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`8.
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`Also, there has been no discovery or briefing of any type directed to Counts Two
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`and Three of TicketNetwork’s Complaint, as those claims were bifurcated.
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`9.
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`Throughout the pendency of this action, and particularly during the time period
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`between the Court’s summary judgment ruling in October 2016 and issuance of the Docket
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`Control Order on May 24, 2017, TicketNetwork has engaged in good faith efforts with CEATS
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`to work toward a potential resolution of each party’s respective claims. To date, those efforts
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`have not been successful, although the discussions are continuing.
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`10.
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`Prior to engaging in extensive fact and expert discovery, briefing and hearings
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`directed to claim construction of over 400 claims of the CEATS’ Patents, TicketNetwork reached
`
`the decision to seek voluntarily dismissal of its Complaint.
`
`11.
`
`Pursuant to Rule 41(a)(2), voluntary dismissal “should be freely granted unless
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`the non-moving party will suffer some plain legal prejudice…” Test Masters Educ. Servs. v.
`
`Robin Singh Educ. Servs., 799 F.3d 437, 448 (5th Cir. 2015). CEATS will not suffer plain legal
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`Case 2:15-cv-01470-JRG-RSP Document 65 Filed 06/01/17 Page 4 of 6 PageID #: 2677
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`prejudice as a result of the requested dismissal pursuant to the terms set forth in the
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`accompanying Proposed Order.
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`12.
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`As set forth in the Proposed Order, TicketNetwork requests that Count One of its
`
`Complaint be dismissed with prejudice. Count One asserts a claim for declaratory relief that the
`
`royalty provisions of the Settlement and License Agreement are unenforceable based on a prior
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`court judgment invaliding certain claims of the CEATS Patents. There is no plain legal prejudice
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`to CEATS from this dismissal as there is no concern that TicketNetwork will re-file that claim in
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`this Court or in another jurisdiction. Additionally, CEATS’ Counterclaim will remain pending
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`for adjudication, should CEATS decide to continue to pursue it.
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`13.
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`TicketNetwork requests that Counts Two and Three of the Complaint be
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`dismissed without prejudice. These Counts assert claims for declaratory relief of non-
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`infringement and invalidity of the CEATS Patents. Dismissal without prejudice is appropriate
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`given that those claims have been bifurcated from the contract claims and there has been no
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`discovery or other proceedings related to these two claims in this action to date. Further,
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`TicketNetwork’s claims for declaratory judgments of non-infringement and invalidity were
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`premised on allegations of patent infringement made by CEATS in a July 31, 2015 letter directed
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`to TicketNetwork. (See Ex. C to Complaint, Dkt. No. 1). TicketNetwork understands that
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`CEATS’s claims against TicketNetwork have been limited to royalties under the Settlement and
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`License Agreement and that there is no present intent to assert claims for patent infringement
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`against TicketNetwork. To the extent CEATS later elects to assert such patent infringement
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`claims, TicketNetwork should be entitled to assert defenses of non-infringement and invalidity.
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`Case 2:15-cv-01470-JRG-RSP Document 65 Filed 06/01/17 Page 5 of 6 PageID #: 2678
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`14.
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`In light of the absence of any plain legal prejudice to CEATS arising from this
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`dismissal, TicketNetwork requests that the dismissal order provide that all taxable costs and
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`attorneys’ fees shall be paid by the party incurring those fees and costs.
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`WHEREFORE, Plaintiffs TicketNetwork, Inc. and Ticket Software LLC respectfully
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`request that its Motion for Voluntary Dismissal of its Complaint be granted. A Proposed Order
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`accompanies this filing.
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`Dated: June 1, 2017
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`Respectfully submitted:
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`By: /s/ Benjamin C. Jensen ___________
`Benjamin C. Jensen
`Kristopher I. Moore
`Robinson & Cole LLP
`280 Trumbull Street
`Hartford, CT 06103-3597
`Tel. No.: (860) 275-8200
`Fax No.: (860) 275-8299
`E-mail: bjensen@rc.com;
`kmoore@rc.com
`
`Jennifer Truelove
`Texas State Bar No. 24012906
`jtruelove@mckoolsmith.com
`104 E. Houston St., Suite 300
`Marshall Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`ATTORNEYS FOR THE PLAINTIFFS
`TICKETNETWORK, INC. and TICKET
`SOFTWARE LLC
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`Case 2:15-cv-01470-JRG-RSP Document 65 Filed 06/01/17 Page 6 of 6 PageID #: 2679
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the above and foregoing document was
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`filed electronically in compliance with Local Rule CV-5(a). All counsel of record who are
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`deemed to have consented to electronic service have been served with a copy of this document
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`on this 1st day of June, 2017.
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`/s/ Benjamin C. Jensen
`Benjamin C. Jensen
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`CERTIFICATE OF CONFERENCE
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`I hereby certify that I communicated with counsel for Defendant, CEATS, Inc., on June
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`1, 2017 and that Defendant does not oppose Plaintiffs’ Motion for Voluntary Dismissal of
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`Complaint.
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`/s/ Benjamin C. Jensen
`Benjamin C. Jensen
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`Case 2:15-cv-01470-JRG-RSP Document 65-1 Filed 06/01/17 Page 1 of 1 PageID #: 2680
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:15-CV-1470-JRG-RSP
`
`TICKETNETWORK, INC., ET AL.
`
`Plaintiffs,
`
`v.
`
`CEATS, INC.
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`ORDER GRANTING PLAINTIFFS’
`MOTION FOR VOLUNTARY DISMISSAL OF COMPLAINT
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`The Court has fully considered Plaintiffs’ Motion for Voluntary Dismissal of Complaint,
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`and the Court concludes that the Motion should be GRANTED. Therefore, it is ORDERED that
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`Plaintiffs’ Complaint (Dkt. No. 1) shall be dismissed on the following conditions. Count One of
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`Plaintiffs’ Complaint is dismissed with prejudice. Counts Two and Three of Plaintiffs’
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`Complaint are dismissed without prejudice. Defendant’s Counterclaim remains pending. Each
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`party will bear its own costs and attorneys’ fees with respect to the dismissed claims.
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