Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2975 Page 1 of 44
`
`EXHIBIT K
`
`Exhibit K, page 225
`
`Prime Focus Ex 1027-1
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2976 Page 2 of 44
`
`IN THE SUPERIOR COURT OF GWINNETT COUNTY
`STATE OF GEORGIA
`
`Civil Action
`
`File No. 10-A-11197-7
`
`N4D, LLC, a Delaware Limited
`Liability Company,
`
`Plaintiff,
`
`v.
`
`CHARLES GREGORY PASSMORE )
`)
`a/k/a GREG PASSMORE, an (cid:9)
`)
`individual; BIRD ROCK (cid:9)
`)
`MULTIMEDIA, INC. d/b/a (cid:9)
`)
`PASSMORE LAB and/or Z (cid:9)
`)
`MEDIA, a California corporation; (cid:9)
`)
`and DOES 1-50, inclusive, (cid:9)
`)
`)
`)
`
`Defendants. (cid:9)
`
`PLAINTIFF'S MOTION FOR LEAVE TO ADD NEW PARTY
`DEFENDANT AND INCORPORATED BRIEF
`
`Plaintiff N4D, Inc. ("N4D") hereby moves the Court for an order allowing
`
`the addition of Legend3D, Inc. ("Legend3D") as a party defendant pursuant to
`
`O.C.G.A. §§ 9-11-15 and 9-11-21.
`
`Statement of Facts
`
`This is an action by Plaintiff N4D, Inc. for breach of contract, fraud and
`
`related claims arising out of a seven-year software development agreement with
`
`defendants Charles Gregory Passmore and Bird Rock Multimedia, Inc. dba
`
`Passmore Labs (collectively, "Passmore Labs"). N4D, and 3DH Communications,
`
`LA 130,146,123v 3-4-12
`
`Exhibit K, page 226
`
`Prime Focus Ex 1027-2
`Prime Focus v Legend3D
`IPR2016-01243
`
`(cid:9)
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2977 Page 3 of 44
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`Inc., paid Passmore Labs over $7.2 million for the development of 2D-to-3D
`
`conversion technology for use primarily in the film and medical industries.
`
`Formal discovery with Passmore Labs, and informal conversations with
`
`Legend3D, have recently disclosed that Passmore Labs has apparently transferred
`
`the 2D-to-3D conversion and related technology to Legend3D, Inc., which is
`
`successfully using it in the film industry on hit 3D movies such as Martin
`
`Scorsese's recent Academy Award winning "Hugo," Tim Burton and Disney's
`
`cutting edge "Alice in Wonderland," the most recent "Transformers" and "Pirates
`
`of the Caribbean" franchises, and others. The proposed First Amended Complaint
`
`adds Legend3D on a new tenth count only for misappropriation of N4D's trade
`
`secrets, i.e., the 2D-to-3D conversion and related technology.
`
`Legend3D will not be surprised or prejudiced by being added as a defendant.
`
`Legend3D has been aware of this lawsuit since its inception:
`
`1. Before filing this lawsuit on December 15, 2010, N4D on October 5,
`
`2010 sent Passmore Labs a cease and desist letter. Passmore Labs' original
`
`lawyer, Dana Cotman of ARC IP Law, PC, responded at the time on behalf of
`
`Passmore Labs, and then surfaced again in 2011 as Legend3D's lawyers. In other
`
`words, Passmore Labs and Legend3D share the same lawyer.
`
`2.
`
`Legend3D was served with a subpoena for documents and depositions
`
`on August 8, 2011. Passmore Labs filed a motion to quash the subpoena on
`
`LA 130,146,123v 3-4-12
`
`2
`
`Exhibit K, page 227
`
`Prime Focus Ex 1027-3
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2978 Page 4 of 44
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`Legend3D, among other motions. Therefore, Legend3D requested, and N4D
`
`agreed, to postpone Legend3D's production of documents and deposition until
`
`after Passmore Labs' motion to quash the subpoena was decided. The Special
`
`Master denied the motion to quash, among other rulings, in his February 1, 2012
`
`Special Master Report and Ruling which became the Order of the Court.
`
`Legend3D is currently in the process of producing the subpoenaed documents.
`
`3.
`
`In Passmore Labs' recent supplemental interrogatory responses, it
`
`disclosed for the first time that yet another 2D to 3D conversion patent application,
`
`called the "Director's Style," was filed on February 1, 2011, and was then assigned
`
`to Legend3D, needless to say without N4D's knowledge or consent.
`
`4.
`
`In a recent February 29, 2012 letter, Passmore Labs first disclosed that
`
`on February 6, 2012, Gregory Passmore or Passmore Labs filed and assigned to
`
`Legend3D another patent application related to 2D to 3D conversion technologies
`
`entitled "System And Method For Rapid Image Sequence Depth Enhancement
`
`With Translucent Elements."
`
`5.
`
`Since the Special Master's February 1, 2012 ruling on the long
`
`pending discovery issues, including the motion to quash the Legend3D subpoena,
`
`document discovery and depositions in this action are finally commencing and
`
`being scheduled in earnest. For example, Passmore Labs has now noticed eight
`
`depositions in Georgia the week of March 19, 2012. All parties should participate
`
`LA 130,146,123v 3-4-12
`
`3
`
`Exhibit K, page 228
`
`Prime Focus Ex 1027-4
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2979 Page 5 of 44
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`in this document and deposition discovery at one time rather than have serial and
`
`duplicative discovery as new parties are added.
`
`6. (cid:9)
`
`Over at least the last three months, N4D's and Legend3D's principals
`
`have had multiple discussions and meetings regarding this lawsuit. This case was
`
`settled in principle on the morning of the third day of defendant Gregory
`
`Passmore's deposition in November 2011, but Passmore Labs and Mr. Passmore
`
`subsequently reneged on the settlement. Even with Legend3D's attempted
`
`assistance, negotiations have stalled, and the settlement has not been
`
`consummated.
`
`Legend3D will not be the only new defendant recently added to this matter.
`
`Passmore Labs in the related California action, which is being treated as
`
`consolidated with this action for discovery purposes, has recently filed a First
`
`Amended Complaint in which Passmore Labs itself added three new defendants to
`
`this dispute — Anthony Balakian, the Balakian Family LLC, and Symphony 3D
`
`Technologies, LLC. None of these three new defendants have yet responded to the
`
`recently served Passmore Labs' complaint. Therefore, further discovery in both
`
`this action and the related California action will also be delayed while those three
`
`new defendants, recently added by Passmore Labs, appear and gear up to
`
`participate in discovery.
`
`LA 130,146,123v 3-4-12
`
`4
`
`Exhibit K, page 229
`
`Prime Focus Ex 1027-5
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2980 Page 6 of 44
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`In these circumstances, it is in the best interest of the existing parties, both
`
`this Court and the California Court, and the newly added defendants to grant this
`
`motion, and bring all the parties into the existing litigation so a single trial or
`
`settlement will resolve the matter once and for all. There is certainly no prejudice
`
`to adding the appropriate co-defendants at this time.
`
`Argument and Citations to Authority
`
`In order for a party to be added to an existing lawsuit by amendment, leave
`
`of court must first be sought pursuant to 0.C.G.A. §§ 9-11-15 and 9-11-21. In
`
`accordance with O.C.G.A. § 9-11-15(a), leave shall be freely given when justice so
`
`requires.
`
`Georgia courts have held that in determining whether to add a party pursuant
`
`to O.C.G.A. § 9-11-21, the court should consider whether the party sought to be
`
`added "knew or should have known that the [action] would have been brought
`
`against it." Hall v. Scott USA, Ltd., 198 Ga. App. 197, 199, 400 S.E.2d 700
`
`(1990). Additional factors for the trial court to consider in determining whether to
`
`allow an amendment to add a new party are whether the new party will be
`
`prejudiced and whether the moving party has some excuse or justification for
`
`having failed to name and serve the new party. See Aircraft Radio Sys., Inc. v. Von
`
`Schlegell, 168 Ga. App. 109, 308 S.E.2d 211 (1983). "The trial court must
`
`exercise its sound discretion in allowing the addition of parties, and denial of
`
`LA 130,146,123v 3-4-12
`
`5
`
`Exhibit K, page 230
`
`Prime Focus Ex 1027-6
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2981 Page 7 of 44
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`joinder is an abuse of discretion where delay is the sole reason for denial . . . ."
`
`Smith v. Vencare, Inc., 238 Ga. App. 621, 519 S.E.2d 735 (1999) (citations
`
`omitted).
`
`The Court should grant N4D leave to add Legend3D as a defendant for
`
`several reasons. First, Legend3D has been well aware of this dispute and lawsuit
`
`even before the Complaint was filed on December 15, 2010. Indeed, it was served
`
`with a subpoena in August 2011 and has engaged in multiple substantive and
`
`settlement discussions with both N4D and Passmore Labs. Thus, Legend3D will
`
`not be surprised or prejudiced by being added as a defendant. In addition, N4D's
`
`failure to include Legend3D as a defendant in its original Complaint is justified.
`
`Mr. Passmore's recent deposition testimony, Passmore Labs' responses to
`
`interrogatories, and the court-ordered production of documents have only recently
`
`more fully-disclosed Legend3D's uses and misappropriations of the 2D-to-3D
`
`conversion and related technology. Accordingly, the above-enunciated factors for
`
`granting leave militate in favor of granting leave in this case.
`
`Conclusion
`
`N4D respectfully requests that the Court grant N4D leave to amend its
`
`Complaint to add Legend3D, Inc. as a defendant. A copy of the proposed First
`
`Amended Complaint, which is substantially identical to the pending complaint
`
`LA 130,146,123v 3-4-12
`
`6
`
`Exhibit K, page 231
`
`Prime Focus Ex 1027-7
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2982 Page 8 of 44
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`except for the addition of Legend3D as a defendant in the new Tenth Count for
`
`misappropriation of trade secrets, is attached hereto as Exhibit A.
`
`Respectfully submitted, this r-1111 day of March, 2012.
`01Pkov4 0,04
`peAmtublot.
`
`Mark G. Trigg
`Ga. Bar No. 716295
`
`GREENBERG TRAURIG, LLP
`The Forum
`3290 Northside Parkway, Suite 400
`Atlanta, Georgia 30327
`678/553-2100 (o)
`678/553-2416 (f)
`
`GREENBERG TRAURIG, LLP
`2450 Colorado Avenue
`Suite 400 East
`Santa Monica, California 90404
`310/586-7713 (o)
`310/586-0213 (f)
`
`Counsel for Plaintiff
`
`0)14_16 clu-cl‹,
`UJA (cid:9)
`peA4.440-e4...
`George M. Belfie d (admitted pro hac vice)
`Jordan D. Grotzinger (admitted pro hac
`vice)
`
`LA 130,146,123v 3-4-12
`
`7
`
`Exhibit K, page 232
`
`Prime Focus Ex 1027-8
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2983 Page 9 of 44
`
`IN THE SUPERIOR COURT OF GWINNETT COUNTY
`STATE OF GEORGIA
`
`CIVIL ACTION
`
`FILE NO. 10-A-11197-7
`
`N4D, LLC, a Delaware Limited
`Liability Company,
`
`Plaintiff,
`
`v.
`
`CHARLES GREGORY PASSMORE
`a/k/a GREG PASSMORE, an
`individual; BIRD ROCK
`MULTIMEDIA, INC. d/b/a
`PASSMORE LABS and/or
`Z MEDIA, a California corporation;
`LEGEND3D, INC., a California
`corporation, and DOES 1-50,
`inclusive,
`
`Defendants.
`
`CERTIFICATE OF SERVICE
`
`This is to certify that I have this day served a true and correct copy of the
`
`foregoing PLAINTIFF'S MOTION FOR LEAVE TO ADD NEW PARTY
`
`DEFENDANT AND INCORPORATED BRIEF upon opposing counsel by
`
`depositing a copy of same in the U.S. mail, postage prepaid and addressed to:
`
`Brendan J. McCarthy, Esq.
`ANDRE & BLAUSTEIN, LLP
`The Candler Building
`127 Peachtree Street, N.E., Suite 700
`Atlanta, Georgia 30303-1848
`
`LA 130,146,123v 3-4-12
`
`8
`
`Exhibit K, page 233
`
`Prime Focus Ex 1027-9
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2984 Page 10 of 44
`
`Philip H. Dyson, Esq.
`LAW OFFICES OF PHILIP H. DYSON
`8461 La Mesa Blvd.
`La Mesa, California 91941
`
`This t144` day of
`
`, 2012.
`
`01.09vip (cid:9)
`41,02.14117%
`Mark G. Trigg
`Ga. Bar No. 716295
`
`v
`
`GREENBERG TRAURIG, LLP
`The Forum
`3290 Northside Parkway, Suite 400
`Atlanta, Georgia 30327
`678/553-2100 (o)
`6781553-2416 (f)
`
`Counsel for Plaintiff
`
`LA 130,146,123v 3-4-12
`
`9
`
`Exhibit K, page 234
`
`Prime Focus Ex 1027-10
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2985 Page 11 of 44
`
`EXHIBIT L
`
`Exhibit L, page 235
`
`Prime Focus Ex 1027-11
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2986 Page 12 of 44
`
`IN THE SUPERIOR COURT OF GWINNETT COUNTY
`
`STATE OF GEORGIA
`
`N4D, LLC, a Delaware limited liability (cid:9)
`company, (cid:9)
`
`Plaintiff, (cid:9)
`
`v. (cid:9)
`
`CHARLES GREGORY PASSMORE
`a/k/a GREG PASSMORE, an
`individual, BIRD ROCK
`MULTIMEDIA, INC., d/b/a
`PASSMORE LABS, and/or Z MEDIA,
`
`Defendants.
`
`10-A-11197-7
`
`)
`)
`) CIVIL ACTION
`)
`) (cid:9) FILE NO.: (cid:9)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`DEFENDANTS CHARLES GREGORY PASSMORE'S AND BIRD ROCK
`MULTIMEDIA, INC.'S OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO
`ADD NEW PARTY DEFENDANT
`
`Defendants CHARLES GREGORY PASSMORE and BIRD ROCK
`
`MULTIMEDIA, INC. dba PASSMORE LAB and Z MEDIA (collectively, "Defendants")
`
`respectfully submit the following opposition to Plaintiff N4D, LCC'S ("N4D") Motion for
`
`Leave to Add New Party Defendant.
`
`I.
`
`INTRODUCTION
`
`N4D has been aware of Legend3D, Inc.'s ("Legend3D") connection to this dispute
`
`since at least 2010, well before it commenced this action. N4D has provided no sufficient
`
`justification for its grossly belated request to add Legend3D as a defendant to this action.
`
`Moreover, Legend3D will be detrimentally prejudiced if added at this late juncture as
`
`substantial and extensive motion work and discovery has already been undertaken.
`
`Exhibit L, page 236
`
`Prime Focus Ex 1027-12
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2987 Page 13 of 44
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`Additionally, this court has no jurisdiction over Legend3D, which is California
`
`corporation that has conducted no business whatsoever in Georgia. Permitting N4D to add
`
`Legend3D as a defendant would, therefore, be a futile act, wasteful of this court's and the
`
`parties' time and money.
`
`Moreover, the addition of this California corporation to this action will not only
`
`severely delay this action, which is currently scheduled to be set for trial this summer, but
`
`will likely result in this action being stayed pursuant to OCGA § 9-10-31.1 (a), as the
`
`interests of justice and the balance of the conveniences would, in such case, overwhelmingly
`
`weigh in favor of this action moving forward in California, instead of Georgia.
`
`Given the foregoing, Passmore Lab respectfully requests that this court deny N4D's
`
`motion for leave to add Legend3D as a defendant to this action.
`
`H.
`
`THIS COURT SHOULD DENY N4D'S MOTION
`
`When a party seeks to add a new party by amendment, 0.C.G.A. § 9-11-15 must be
`
`read in pari materia with O.C.G.A. § 9-11-21, which allows the dropping and adding of
`
`parties only "by order of the court on motion of any party." Laches and inexcusable delay
`
`may bar a proposed amendment. But "laches [and inexcusable delay do] not consist of mere
`
`lapse of time. . . There also must be prejudice or injury to the party sought to be added
`
`resulting from that passage of time." (Black & White Constr. Co. v. Bolden Contractors, 187
`
`Ga. App. 805, 806-807.)
`
`A. (cid:9)
`
`N4D is Guilty of Inexcusable Delay in Adding Legend3D to This Action
`
`N4D has been well aware of Legend3D's connection to this dispute for years. On
`
`October 5, 2010, N4D sent a demand letter to Passmore Lab. In that letter, N4D stated:
`
`- 2 -
`
`Exhibit L, page 237
`
`Prime Focus Ex 1027-13
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2988 Page 14 of 44
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`[N4D] believes that Passmore and PassmoreLab have intentionally
`misappropriate the technology, and used it for their own purposes, including
`in connection with their recent 2D to 3D conversion activities for Legend
`3D, and possibly others.
`
`(Dyson Aff., Exhibit 1 thereto, Pg. 1.)
`
`Yet, N4D filed its Complaint in this action, on December 15, 2010, nearly 16 months
`
`ago, failing to name Legend3D as a party. Confirming once again that it was aware of
`
`Legend3D's connection to this action, N4D mentioned Legend3D specifically and detailed
`
`Legend3D's involvement in this action over nine times in its Complaint:
`
`Passmore Labs secretly filed and concealed from Plaintiff at least four
`separate patent application... and have converted the technology and software
`to their own uses, including selling, license or empowering other companies
`with the technology including Hollywood studios and film companies,
`including Legend 3D.... (See N4D's Complaint filed in this action
`("Complaint") Pg. 2, Para. 1.)
`
`Passmore Labs and Passmore breached the exclusivity provision of the
`Amendment to Consulting Agreement (T 1, Exhibit C) by working for Legend
`3D... (Complaint, Pg. 28, ¶ 41(b).)
`
`Passmore Labs... breach the exclusivity, confidentiality, and other provisions
`of the agreement by providing the 2D to 3D technology... to film,
`entertainment and other companies within other industries, including Legend
`3D... without 3DH or N3D's knowledge or consent, and without paying 3DH
`and N4D the money owed to N4D and/or 3DH under the agreements.
`(Complaint, Pg. 30, ¶ 41(g).)
`
`Passmore Labs... breach the exclusivity, confidentiality, and other provisions
`of the agreements by contracting with and developing 2D to 3D technology
`for Legend 3D that has in turn been used for such films as Disney's "Alice
`in Wonderland" 3D and other studio and independent productions.
`(Complaint, Pg. 30, ¶ 41(h).)
`
`Passmore in general minimized the value of the 2D to 3D technology; he did
`not disclose the pending patent application; and he did not disclose the interest
`of, or commercial possibilities, with Legend 3D... (Complaint, Pg. 35-36,
`¶58.)
`
`- 3 -
`
`Exhibit L, page 238
`
`Prime Focus Ex 1027-14
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2989 Page 15 of 44
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`Passmore... misrepresented and concealed the fact that... the technology was
`commercially valuable and being used improperly by Passmore and Passmore
`Labs to compete with, and divert business opportunities from, 3DH and N4D
`including with respect to Legend 3D... (Complaint, Pg. 37, ¶ 60.)
`
`Passmore and Passmore Labs again failed to disclose and said nothing about
`the pending patent application and the status of... 2D to 3D conversion... and
`related technology and intellectual property and contracts and customers such
`as Legend 3D... (Complaint, Pg. 39, ¶ 63.)
`
`...Passmore Labs and Passmore were in contact and negotiations with Legend
`3D... regarding the use, license or sale of the 2D to 3D conversion... and
`related technology, but Passmore failed and refused to disclose and concealed
`these activities and opportunities from 3DH and later N4D. (Complaint, Pg.
`39, 1165.)
`
`If 3DH had known of the pending patent application and/or the status of
`Passmore Labs and Passmore's contacts, negotiations and business with
`Legend 3D... 3DH and N4D would have acted differently... (Complaint, Pg.
`40, ¶ 66.)
`
`...Defendants have failed and refused... to return possession and title of [the
`2D to 3D conversion and related technology] to Plaintiff, and instead are using
`it for Defendants' own purposes and benefit including with Legend 3D...
`(Complaint, Pg. 43, ¶ 77.)
`
`N4D's contention that it only recently became aware of Legend3D's connection to
`
`this action is wholly disingenuous as its October 2010 demand letter and its Complaint filed
`
`in this action nearly 16 months ago confirm. N4D's proposed First Amended Complaint is
`
`grounded on these exact same allegations. N4D has delayed adding Legend3D as a
`
`defendant without sufficient justification.
`
`The party offering the amendment adding a new party must demonstrate that the party
`
`has not been guilty of inexcusable delay. (Horne v. Carswell, 167 Ga. App. 229 (1983).)
`
`N4D has failed to demonstrate the same.
`
`- 4 -
`
`Exhibit L, page 239
`
`Prime Focus Ex 1027-15
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2990 Page 16 of 44
`
`B. (cid:9)
`
`Legend3D Will Suffer Severe Prejudice if Added to the Action at this Late
`Juncture
`
`1. (cid:9)
`
`Significant Motion Work and Discovery Has Already Transpired
`
`This action has been pending for nearly 16 months. Since the commencement of this
`
`action, the parties have engaged in extensive motion work and discovery. These motions
`
`include motions to dismiss, motions to continue the trial, a motion for a protective order, and
`
`a motion to compel discovery responses. (See, Affidavit of Philip H. Dyson filed herewith
`
`("Dyson Aff.").)
`
`A Special Master has been appointed in this case in response to the parties' discovery
`
`motions. The Special Master has already heard and ruled on numerous discovery disputes.
`
`(Dyson Aff.)
`
`Passmore Lab has produced over 26,700 pages of bate stamped documents in this
`
`case, which does not even account for the additional thousands of pages of documents
`
`Passmore Lab produced which were not able to be bate stamped. Passmore Lab has spent an
`
`incredible amount of time in not only assimilating, reviewing and producing these
`
`documents, but also in responding to N4D's written discovery requests and subsequent
`
`demands for additional information and documents. (Dyson Aff.)
`
`Further, Passmore Lab has had to compel 3DH Communications Inc.'s responses to
`
`discovery in the related action pending in California (Bird Rock Multimedia, Inc. v. 3DH
`
`Communications, Inc., et al. ("3DI-1 Action"), wherein discovery is coordinated with this
`
`action. 3DH Communications Inc. finally produced approximately 2,989 pages of bate
`
`stamped documents and provided responses to Passmore Lab's written discovery. (Dyson
`
`Aff.)
`
`- 5 -
`
`Exhibit L, page 240
`
`Prime Focus Ex 1027-16
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2991 Page 17 of 44
`
`Additionally, Mr. Passmore has already provided two days of deposition testimony in
`
`this case and is scheduled to complete his deposition in the first week of April. Passmore
`
`Lab has deposed numerous witnesses, including Brian Lanehart, Carroll Lastinger, Cliff
`
`Parker, Andrew Enyart, James Ranking and Lester Wilson. Discovery has been well and
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`significantly underway. (Dyson Aff.)
`
`In sum, this action has been pending for a well over a year and the parties have
`
`conducted extensive discovery, preparing for a trial that this court indicated will commence
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`sometime this summer. Adding a new defendant at this late juncture will, therefore, severely
`
`prejudice that new defendant and significantly delay this action as this new defendant
`
`attempts to get up to speed and participate in this complex action.
`
`2. (cid:9)
`
`The Addition of Parties to the 3DH California Action Does Not Justify
`Overlooking the Prejudice to Le2end3D if Added as a Party to This
`Action
`
`N4D contends that its delay should be overlooked because Passmore Lab recently
`
`added Anthony Balakian, The Anthony and Vincent Balakian Family LLC, and Symphony
`
`3D Technologies, LLC to the separate 3DH Action pending in California.
`
`Yet, Anthony Balakian and both of these entities are represented by the very same
`
`counsel that represents N4D and 3DH, i.e. George Belfield of Greenberg Traurig, LLP.
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`Further, Anthony Balakian has sat in on every single deposition that has gone forward to
`
`date. Additionally, Anthony Balakian is a managing member of The Anthony and Vincent
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`Balakian Family LLC and is believed to be a principal of Symphony 3D Technologies, LLC.
`
`(Dyson Aff.)
`
`- 6 -
`
`Exhibit L, page 241
`
`Prime Focus Ex 1027-17
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2992 Page 18 of 44
`
`In stark contrast, Legend3D's principals and/or attorneys have not been in any way
`
`involved in this lawsuit, other than responding to a subpoena that N4D served on it. (Dyson
`
`Aff.) Legend3D's response to a subpoena does not equate to Legend3D being sufficiently
`
`aware of this action to not be surprised or prejudiced by being added as a defendant at this
`
`late stage of the litigation.
`
`3. (cid:9)
`
`N4D Has Not Demonstrated that This Action Cannot be Justly
`Adiudicated Without Legend3D
`
`N4D requests that this court permit the amendment solely pursuant to 0.C.G.A §§ 9-
`
`11-15 and 9-11-21, which allows the dropping and adding of parties only "by order of the
`
`court on motion of any party." N4D does not allege that Legend3D is an indispensible party
`
`via which this action cannot be justly adjudicated without it. (See, e.g. 0.C.G.A §§ 9-11-19 -
`
`joinder of persons needed for just adjudication.)
`
`As discussed above, 0.C.G.A §§ 9-11-15 and 9-11-21 do not permit this Court to add
`
`a defendant when the requesting party has been guilty of laches and inexcusable delay.
`
`Accordingly, Legend3D cannot be added pursuant to foregoing statutes and, because there is
`
`no claim that Legend3D is indispensible to this action, this Court has no sound basis to add
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`Legend3D at this late juncture.
`
`Therefore, this Court should deny N4D's motion for leave to add Legend3D to this
`
`action. However, should this Court be inclined to allow the amendment, Passmore Lab
`
`requests that this Court order N4D to pay Passmore Lab's fees and costs arising therefrom, in
`
`accordance with 0.C.G.A § 9-10-134, as N4D has clearly been negligent and/or dilatory in
`
`its severely belated request.
`
`- 7 -
`
`Exhibit L, page 242
`
`Prime Focus Ex 1027-18
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2993 Page 19 of 44
`
`C. (cid:9)
`
`Permitting Leave to Amend Would Be a Futile Act as This Court Has No
`Jurisdiction Over Legend3D
`
`This Court does not have jurisdiction over Legend3D, which is a California
`
`corporation that conducts no business whatsoever in Georgia. O. C. G.A. § 9-10-91
`
`provides that this Court may exercise personal jurisdiction over any nonresident, as to a
`
`cause of action arising from any of the acts, omissions, ownership, use, or possession
`
`enumerated in O.C.G.A. § 9-10-91, in the same manner as if he or she were a resident of this
`
`state, if, in person or through an agent, he or she:
`
`(1) Transacts any business within this state;
`
`***
`(3) Commits a tortious injury in this state caused by an act or omission outside
`this state if the tort-feasor regularly does or solicits business, or engages in any
`other persistent course of conduct, or derives substantial revenue from goods
`used or consumed or services rendered in this state;
`
`(4) Owns, uses, or possesses any real property situated within this state;
`
`***
`(O.C.G.A. § 9-10-91.)
`
`In construing whether the non-resident defendant "transacted any business within the
`
`state," the Georgia Supreme Court set forth a three-part test to enunciate its parameters: (1)
`
`the nonresident defendant must purposely do some act or consummate some transaction in
`
`the state; (2) the cause of action must arise from or be connected with the act; and (3) the
`
`exercise of jurisdiction by the Georgia court must not offend traditional notions of fairness
`
`and substantial justice. (Davis Metals, Inc. v. Allen, 230 Ga. 62 (1979).)
`
`For instance, in determining whether it had jurisdiction over a foreign corporation, the
`
`Appellate Court held, in Hoesch Am., Inc. v. Dai Yang Metal Co., 217 Ga. App. 845, that the
`
`trial court did not err in considering such issues as whether the corporation transacted any
`
`- 8 -
`
`Exhibit L, page 243
`
`Prime Focus Ex 1027-19
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2994 Page 20 of 44
`
`business in the state, whether it maintained an office or agents in the state, where
`
`negotiations took place, where goods were shipped, whether there was a course of dealing
`
`between the parties, whether minimum contacts were shown between the corporation and the
`
`state, and whether it had availed itself of any benefits of state law. (Hoesch Am., Inc. v. Dai
`
`Yang Metal Co., 217 Ga. App. 845, 459 S.E.2d 187 (1995).)
`
`In this case, Legend3D is and always has been a California corporation. Legend3D is
`
`not incorporated in Georgia, nor qualified to do business in Georgia. Further, it has no
`
`subsidiaries incorporated or qualified to do business in Georgia. (See, Affidavit of Steve
`
`Wolkenstein filed herewith ("Wolkenstein Aff.").)
`
`Legend3D has no branch office or comparable facilities in Georgia and has no
`
`telephone listings or mailing addresses in Georgia. None of Legend3D's officers, directors
`
`or employees reside or are domiciled in Georgia. Legend3D has no bank accounts or other
`
`tangible personal or real property in Georgia. (Wolkenstein Aff.)
`
`No meetings of Legend3D's board of directors or shareholders have been held in
`
`Georgia; and none of its officers or directors has attended business conferences or similar
`
`functions within the state. (Wolkenstein Aff)
`
`Legend3D does not direct any of its business or advertising specifically toward
`
`Georgia residents or business, nor does it advertise in any publications that are directed
`
`primarily toward Georgia residents or businesses. (Wolkenstein Aff.)
`
`Most importantly, there is no contract and has never been a contract between
`
`Legend3D and 3DH, or Legend3D and N4D. Legend3D has had no direct dealings with
`
`3DH or N4D. (Wolkenstein Aff.)
`
`- 9 -
`
`Exhibit L, page 244
`
`Prime Focus Ex 1027-20
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2995 Page 21 of 44
`
`The acts or omissions for which Legend3D is sought to be held liable in this action all
`
`occurred in California. The written contracts between Legend3D and Passmore Lab, of
`
`which N4D complains, were all executed in California. The alleged "conspiring" and
`
`"agreeing" to misappropriate, occurring between Passmore Labs and Legend3D, would have
`
`had to occur in California, where all are located. (Wolkenstein Aff.)
`
`The patent applications filed in February 2011 and September 2011, of which N4D
`
`complains, were all drafted and filed in California. Legend3D's exercising of its option
`
`under the March 2009 License Agreement to purchase technology from Passmore Lab
`
`occurred in California. (Wolkenstein Aff.)
`
`Passmore Lab's selling, transferring and assigning of its rights and interest in this
`
`technology to Legend3D occurred in California. The Legend3D stock sold, transferred and
`
`assigned to Passmore Lab occurred in California. Legend3D's 2D to 3D conversion and
`
`other work are carried out in California. None of Legend3D's marketing and selling of the
`
`2D to 3D conversion and related technology and services is directed specifically toward
`
`Georgia residents or business. (Wolkenstein Aff.)
`
`In determining whether the defendant has established the minimum contacts
`
`necessary for the exercise of jurisdiction, the court looks to whether the defendant has done
`
`some act to avail the defendant of the law of the forum state, and whether the claim is related
`
`to those acts. (SES Indus., Inc. v. Intertrade Packaging Mach. Corp., 236 Ga. App. 418
`
`(1999).) Legend3D simply has not done any act related or unrelated to N4D's claim to
`
`avail Legend3D to the law of this state.
`
`- 10 -
`
`Exhibit L, page 245
`
`Prime Focus Ex 1027-21
`Prime Focus v Legend3D
`IPR2016-01243
`
`

`

`Case 3:13-cv-02656-BEN-NLS Document 28-6 Filed 01/31/14 PageID.2996 Page 22 of 44
`
`N4D's assertion, that this court has jurisdiction over Legend3D because the movies
`
`that Legend3D worked on are distributed throughout the United States, fails. Legend3D
`
`solely works on an aspect of the production of these movies. Legend3D itself does not
`
`distribute these movies and has no agents that distribute these movies on its behalf.
`
`(Wolkenstein Aff.)
`
`Where the distributors of a product are independent companies or independent
`
`contractors and are not acting on behalf of defendant, none of their sales can be considered
`
`acts of the defendant. (Smith v. Piper Aircraft Corp., 425 F.2d 823, 826 (5th Cir. 1970) -
`
`"the subsequent sales of defendant's aircraft in Georgia are carried on by independent
`
`distributors, not by agents of defendant, so that these sales do not constitute sa