Case: 1:15-cv-00799 Document #: 112 Filed: 11/30/15 Page 1 of 4 PagelD #:506
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`ROSETTA-WIRELESS CORP., an Illinois
`Corporation,
`
`Plaintiff
`
`V.
`
`APPLE INC., a California Corporation
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`
`Civil Action No. 15-cv-00799
`
`Judge Joan H. Lefkow
`
`MOTION FOR RECONSIDERATION OF COURT’S ORDER REGARDING MOTION
`TO SEVER
`
`Pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff Rosetta-Wireless Corp.
`
`("Rosetta") respectfully requests that the Court reconsider the procedural portion of its Order
`
`(Dkt. # 109) granting Defendants’ motion to sever. In particular, Rosetta requests that rather
`
`than effectuating severance by dismissing the severed Defendants without prejudice, the Court
`
`instead order that those Defendants are severed and instruct Rosetta to file amended complaints
`
`against each of them under new case numbers with such new cases being deemed continuations
`
`of the original case. In further support of its motion, Rosetta states as follows:
`
`On November 10, 2015, the Court granted Defendants’ motion to sever. (Dkt. #
`
`.
`
`109).
`
`2.
`
`In the Order, the Court stated "Because Rosetta does not oppose severance, the
`
`court will exercise its discretion under Rule 21 to sever the claims against the five
`
`defendant groups[.]" Dkt. # 109 at 5. However, in specifying the procedure for
`
`severance, the Court stated (without further comment) that "The claims against the
`1
`
`LG Electronics, Inc. et al.
`EXHIBIT 1028
`IPR Petition for
`U.S. Patent No. 7,149,511
`Page 1 of 31
`
`

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`Case: 1:15-cv-00799 Document #: 112 Filed: 11/30/15 Page 2 of 4 PagelD #:507
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`following defendant groups are dismissed without prejudice: [listing Samsung, Motorola,
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`LG and HTC]." Id. at 10. The Court did not dismiss Rosetta’s claims against Apple,
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`thereby allowing that case to move forward immediately.
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`3. For the reasons stated in greater detail in Rosetta’s Memorandum In Support Of
`
`Plaintiff’ s Motion For Reconsideration Of Court’s Order Regarding Motion To Sever, the
`
`current form the dismissal will create confusion about the status of service and the
`
`deadlines for discovery and disclosure; delay adjudication of the severed cases; make
`
`coordination between the cases needlessly complex; trigger disputes regarding the scope
`
`of Rosetta’s damages; and lead to uncertainty about the deadline for the fling of an inter
`
`partes review with the United States Patent and Trademark Office under the America
`
`Invents Act.
`
`4. For the reasons stated in greater detail in Rosetta’s Memorandum In Support Of
`
`Plaintiff’s Motion For Reconsideration Of Court’s Order Regarding Motion To Sever,
`
`Seventh Circuit law requires that these prejudicial consequences be avoided by the Court
`
`either severing the case or clarifying that the cases refiled following its dismissal order
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`are continuations of the original case.
`
`WHEREFORE, pursuant to Federal Rule of Civil Procedure 60(b), Rosetta respectfully
`
`requests that the Court reconsider the procedural portion of its Order granting Defendants’
`
`motion to sever and issue a revised Order:
`
`(1) Severing Rosetta’s claims against HTC, LG, Samsung and Motorola from Case No.
`
`15-cv-00799;
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`(2) Ordering Rosetta to file a Second Amended Complaint for each severed Defendant
`
`group, with each filed under its own case number;
`
`2
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`Page 2 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112 Filed: 11/30/15 Page 3 of 4 PagelD #:508
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`(3) Clarifying that the severance order does not nullify the filing and service of the
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`earlier-filed complaints or the other proceedings that occurred prior to severance, and
`
`providing that the severed actions shall be treated as continuations of the earlier
`
`actions;
`
`(4) Deeming Rosetta’s prior filing of separate complaints in Case Nos. 1 : 15-cv- 10603,
`
`1:15-cv-10605, 1:15-cv-10608, 1:15-cv-10611 to be in compliance with the above;
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`and
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`(5) Requiring that the parties make their Initial Disclosures and Patent Local Rule 2.1
`
`disclosures within seven days of the Court’s reconsideration order.
`
`Date: November 30, 2015
`
`KOBRE & KIM LLP
`
`/s/ Michael Ng_
`Michael Ng (pro hac vice)
`Daniel A. Zaheer (pro hac vice)
`Michael C. Fasano (pro hac vice)
`Kobre & Kim LLP
`150 California, 19th Floor
`San Francisco, California 94111
`michael.ng@kobrekim, corn
`daniel.zaheer@kobrekim.com
`michael, fasano@kobrekim.com
`(415) 582-4803
`
`STADHEIM & GREAR, LTD.
`
`Rolf O. Stadheim
`Kyle L. Harvey
`Robert M. Spalding
`Christopher H. St. Peter
`400 North Michigan Avenue, Suite 2200
`Chicago, Illinois 60611
`stadheim@stadheimgrear, corn
`harvey@stadheimgrear, corn
`spalding@stadheimgrear, corn
`3
`
`Page 3 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112 Filed: 11/30/15 Page 4 of 4 PagelD #:509
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`stpeter@ stadheimgrear, com
`(312) 755-4400
`
`A ttorneys for Plaintiff Rose tta- Wireless Corp.
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 30, 2015, I electronically filed Rosetta-Wireless
`
`Corp.’s Motion for Reconsideration of the Court’s Order Regarding Motion to Sever with the
`
`Clerk of the Court using the CM/ECF system, which will send notification of such filing to all
`
`counsel of record.
`
`/s/ Michael NJZ
`Michael Ng (pro hac vice)
`
`Page 4 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 1 of 10 PagelD #:510
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`ROSETTA-WIRELESS CORP., an Illinois
`Corporation,
`
`Plaintiff
`
`V.
`
`APPLE INC., a California Corporation
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No. 15-cv-00799
`
`Judge Joan H. Lefkow
`
`MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR
`RECONSIDERATION OF COURT’S ORDER REGARDING MOTION TO SEVER
`
`Pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff Rosetta-Wireless Corp.
`
`("Rosetta") respectfully requests that the Court reconsider the procedural portion of its Order
`
`(Dkt. # 109) granting Defendants’ motion to sever. In particular, Rosetta requests that rather
`
`than effectuating severance by dismissing the severed Defendants without prejudice, the Court
`
`instead order that those Defendants are severed and instruct Rosetta to file amended complaints
`
`against each of them under new case numbers with such new cases being deemed continuations
`
`of the original case.
`
`This apparently minor change in procedure will have maj or consequences on the
`
`efficiency and speed of adjudication of this case. As explained in greater detail below, in its
`
`current form the dismissal will create confusion about the status of service and the deadlines for
`
`discovery and disclosure; delay adjudication of the severed cases; make coordination between
`
`the cases needlessly complex; trigger disputes regarding the scope of Rosetta’s damages; and
`
`lead to uncertainty about the deadline for the filing of an interpartes review with the United
`1
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`Page 5 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 2 of 10 PagelD #:511
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`States Patent and Trademark Office under the America Invents Act. These concerns are not
`
`theoretical--Defendants have already asserted that the Court’s Order requires the parties to start
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`this case over anew, as if the months of progress in the litigation that occurred prior to the
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`Court’s order never happened. See Declaration of Daniel Zaheer in Support of Motion for
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`Reconsideration, Exhibits 1 - 5.
`
`That senseless result can be easily avoided by merely severing the parties instead of
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`dismissing them--a typical procedure for severance that has been adopted in other cases. See,
`
`e.g., Mafibu Media, LLC v. Doe 5, No. 1:12-CV-263, 2013 WL 2250236, *2 (N.D. Ind., May 21,
`
`2013) (ordering that "all remaining Defendants are SEVERED from this case with the exception
`
`of Doe No. 6" and directing the plaintiff"to file separate amended complaints containing only its
`
`claims against each Defendant"). Indeed, in circumstances analogous to those here, the Seventh
`
`Circuit has held that "the district court is duty-bound to prevent [prejudice] by severing rather
`
`than dismissing claims." Elmore v. Henderson, 227 F.3d 1009, 1012 (7th Cir. 2000). That
`
`approach would provide the Defendants with the full relief they sought in the motion, while
`
`leaving the Court and the parties with a clear and streamlined process for moving forward with
`
`the litigation. Notably, Rosetta has already filed the separate actions,1 so the Court’s order
`
`need only specify that the already filed actions are deemed to be in compliance with the
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`severance procedure outlined above.
`
`I.
`
`BACKGROUND
`
`On January 27, 2015, Rosetta filed its complaint alleging patent infringement against
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`several defendants including, relevant here, Apple Inc. ("Apple"); Samsung Electronics Co. Ltd.
`
`and Samsung Electronics America, Inc. (collectively, "Samsung"); Motorola Mobility LLC
`
`1 See Case Nos. 1:15-cv-10603, 1:15-cv-10605, 1:15-cv-10608, 1:15-cv-10611.
`2
`
`Page 6 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 3 of 10 PagelD #:512
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`("Motorola"); LG Electronics Co. and LG Electronics USA Inc. (collectively, "LG"); and HTC
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`Corporation and HTC America Inc. (collectively, "HTC"). Dkt. # 1. Rosetta filed an
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`amended complaint on June 1, 2015. Dkt. # 82.
`
`On June 18, 2015, Defendants filed a Motion to Sever under 35 U.S.C. § 299 and
`
`F.R.C.P. 21. Dkt. # 93. In the motion, Defendants specifically requested the "remedy of
`
`severance" under Rule 21. Id. at 4, 8. Only one defendant, HTC, requested (in a footnote)
`
`that the severance be effectuated through a dismissal. See id. at 1 n. 1. HTC did so without
`
`comment and without explaining the potential impact that this form of severance would have on
`
`the progress of this action or on the scope of damages available to Rosetta. Notably, HTC had
`
`also separately moved to dismiss based upon improper venue. See Dkt. # 96. The other
`
`Defendants did not j oin HTC’s request to have the cases severed through dismissal.
`
`In ruling on the motion, the Court stated: "Because Rosetta does not oppose severance,
`
`the court will exercise its discretion under Rule 21 to sever the claims against the five defendant
`
`groups[.]" Dkt. # 109 at 5. However, in specifying the procedure for severance, the Court
`
`stated (without further comment) that "The claims against the following defendant groups are
`
`dismissed without prejudice: [listing Samsung, Motorola, LG and HTC]." Id. at 10. The
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`Court did not dismiss Rosetta’s claims against Apple, thereby allowing that case to move
`
`forward immediately.
`
`II.
`
`LEGAL STANDARD
`
`Under Federal Rule of Civil Procedure 60, a court may modify a prior order based upon,
`
`inter aBa, "mistake, inadvertence, surprise, or excusable neglect" or based upon "any other
`
`reason that justifies relief." A motion to reconsider is proper where the court has "made a
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`decision outside the adversarial issues presented to the Court by the parties, or has made an error
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`3
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`Page 7 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 4 of 10 PagelD #:513
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`not of reasoning but of apprehension." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906
`
`F.2d 1185, 1191 (7th Cir. 1990). Under Rule 60, a district court "has broad authority to review
`
`its prior orders and enjoys a wide degree of discretion to reconsider dismissal orders[.]" Hanley
`
`v. Green Tree Servicing, LLC, 934 F.Supp.2d 977, 985 (N.D. Ill. 2013).
`
`III. DISCUSSION
`
`The Court’s decision to execute the severance through a dismissal rather than amendment
`
`will inevitably slow the progress of this case as the parties hash out myriad unnecessary disputes
`
`over deadlines and discovery obligations. Such inefficiencies run counter to the very purpose
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`of Rule 21 severance, to "serve the ends of justice and facilitate the prompt and efficient
`
`disposition of the litigation." Mafibu Media, LLC v. John Does 1-14, 287 F.R.D. 513,522
`
`(N.D. Ind. 2012). If the Court’s dismissals were deemed to restart all of the severed cases, they
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`would wipe away the progress made by the parties prior to the grant of the severance motion,
`
`resulting in needless delay and repetition. If the Court’s dismissals are construed as setting new
`
`file dates for Rosetta’s complaints against the severed parties, they would also substantially limit
`
`Rosetta’s damages. All of these consequences would be prejudicial to Rosetta, therefore
`
`violating the rule that "in formulating a remedy for a misjoinder the judge is required to avoid
`
`gratuitous harm to the parties." Elmore, 227 F.3d at 1012. Accordingly, Rosetta respectfully
`
`requests that the Court modify its order to be structured as a severance with instructions to refile
`
`a second amended complaint.2
`
`Such structure is not only permitted but--in circumstances such as exist here in which a
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`2 This is a common procedure for effectuating severance. See, e.g., Berry v. Illinois Dep’t of Human Servs., No.
`
`00-5538, 2001 WL 111035, at "18 (N.D. Ill. Feb. 2, 2001); Malibu Media, LLC, 2013 WL 2250236, at *2.
`Alternatively, the Court could order that the severed actions are deemed continuations of the original one. See
`BMGMusic v. Does 1-4, No. 3:06-CV-01579-MHP, 2006 WL 7132629, at *3 (N.D. Cal. Aug. 1, 2006) (holding
`that timely filed severed actions would "be deemed a continuation of the original action for purposes of the statute of
`limitations").
`
`4
`
`Page 8 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 5 of 10 PagelD #:514
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`dismissal would be prejudicial--they are required. Elmore, 227 F.3d at 1012. "Rule 21 not
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`only requires that orders adding or dropping parties be made ’on such terms as are just,’ but also
`
`expressly allows the judge to sever the misjoined party’s claim rather than dismiss it." Id. In
`
`Elmore, the Seventh Circuit held that "[t]he judge could and should have" severed a defendant
`
`rather than dismissing it, so that the plaintiff would not be prejudiced by the statute of
`
`limitations. Id. The court further explained that the appropriate form of severance would
`
`leave the severed suit "[a]s an offshoot of the original suit" which "would have been a
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`continuation of the original suit." Id.
`
`Defendants in this case are simply wrong that the Court’s Rule 21 severance should be
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`deemed to require the parties to restart the litigation. "The filing of new complaints under new
`
`case numbers is not to be considered the dismissal of the original case and the refiling of new
`
`cases; it is a severance pursuant to Rule 21 ." Berry v. Illinois Dep’t ofHuman Servs., No.
`
`00-5538, 2001 WL 111035, at * 18 (N.D. Ill. Feb. 2, 2001). Accordingly, where a Rule 21
`
`severance occurs, "[t]he new complaints should be considered to be the continuation of the case
`
`subjudice." Id.
`
`Notwithstanding these legal principles, the Court’s Order flaming the severance as a
`
`dismissal has already triggered a multitude of disputes and is likely to create more in the future.
`
`First, all of the severed Defendants have asserted that the service of the original complaints was
`
`nullified and that they must be re-served. Because several of those parties are foreign
`
`companies, the progress of the cases could be delayed for months while re-service is completed,
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`such that litigation of those cases would not start in earnest until more than a year after they were
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`originally filed.
`
`Second, Defendants have asserted that the dismissals mean that the discovery and
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`5
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`Page 9 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 6 of 10 PagelD #:515
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`disclosure deadlines have been re-set and that each case must start over from the beginning.
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`Prior to the dismissals the parties (including the severed parties) had conducted their F.R.C.P.
`
`26(f) conference, were close to agreeing upon a scheduling order and were just days away from
`
`making initial disclosures and Local Patent Rule disclosures. There is no legitimate reason to
`
`require the parties to redo all of this work. To the contrary, the Local Patent Rules explicitly
`
`provide for early disclosure--often even before the defendant answers. See Local Patent Rule
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`2.1 (providing for initial disclosures and document disclosures "within fourteen (14) days after
`
`the defendant files its answer or other response" (emphasis added)). Defendants responded to
`
`Rosetta’s complaint long ago; they should not be permitted to delay their disclosure obligations
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`and the start of discovery by months due to the happenstance of the form of severance chosen by
`
`the Court.
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`Third, any delay of the severed cases would put them weeks and perhaps months behind
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`the un-severed case against Apple. This would make coordination of the cases unnecessarily
`
`complex. The Court will recall that Rosetta has previously requested that each of the five cases
`
`be consolidated for pretrial proceedings, including a common schedule, coordinated discovery,
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`consolidated depositions and consolidated Markman proceedings. See Dkt. # 100 at 1-2. The
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`Defendants largely concurred, asserting that the "cases should be structured as efficiently as
`
`possible to avoid any unnecessary costs for the parties and the Court." Dkt. # 103 at 1. The
`
`Court indicated that it was also inclined to agree, noting in the severance order that
`
`"consolidation ... may serve the interest of judicial economy and allow the cases to be efficiently
`
`resolved." Dkt. # 109 at 5. Notwithstanding this statement, Defendants now claim that the
`
`Court’ s Order should be read to create massive inefficiencies, in which the Court would
`
`potentially be asked to hear the same discovery, Markman and summary judgment motions twice
`
`6
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`Page 10 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 7 of 10 PagelD #:516
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`in two parallel but out-of-synch sets of litigation. The Court should modify its Order to avoid
`
`such waste.
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`Fourth, the form of severance could prejudice Rosetta’s substantive rights to obtain full
`
`recovery of its damages in this case. Under 35 U.S.C. § 286, Rosetta is barred from recovering
`
`damages for "any infringement committed more than six years prior to the filing of the
`
`complaint." If the Court’s dismissal is deemed to have nullified the filing of the original
`
`complaint such that the damages period runs backwards from the filing of the most recent
`
`complaints, that would mean that Rosetta would be deprived of recovering damages for
`
`approximately 10 months of the severed Defendants’ sales.
`
`This would likely exonerate
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`Defendants from liability for millions of infringing products.
`
`Accordingly, Defendants’
`
`construction of the Court’s Order violates the rule that "[s]everance is not to be effected in a
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`manner that results in a dismissal prejudicing a substantial right." Berry v. Illinois Dep’t of
`
`Human Servs., No. 00 C 5538, 2001 WL 111035, at "18 (N.D. Ill. Feb. 2, 2001); see also
`
`Elmore, 227 F.3d at 1012. And, the fact that the severed Defendants would see their liability
`
`reduced while Apple does not reflects the arbitrary nature of the impact of dismissal. This too
`
`is a factor demonstrating why severance was required and dismissal was not appropriate. Cf
`
`Elmore, 227 F.3d at 1012 (explaining that "we do not think the running of the statute of
`
`limitations should be affected by which joined plaintiffs are dismissed").
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`Finally, the severed Defendants are likely to assert that the dismissals reset the one-year
`
`deadline for Defendants to petition for an inter partes review of the patent-in-suit by the Patent
`
`Trial and Appeals Board.3 See 35 U.S.C. § 315(b). Rosetta disagrees, meaning that the parties
`
`could be forced to litigate the timeliness issue before the PTAB. And, if Defendants were to
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`3 To be clear, Rosetta believes that any assertion that the deadline would run from the service date of the
`post-severance complaints would be meritless.
`
`7
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`Page 11 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 8 of 10 PagelD #:517
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`prevail on such argument, the result would be two separate timelines for Apple and the severed
`
`Defendants in interpartes review. This would not only further multiply the proceedings in the
`
`PTAB, but it would also give rise to further disputes in front of this Court about scheduling.
`
`In briefing the motion to sever, the parties did not address the impact that the particular
`
`form of severance would have on the potential delays, inefficiencies and impacts on the merits
`
`described above. Nor did the Court’s Order address these issues in substance, or the principles
`
`articulated by the Seventh Circuit in Elmore. Because the issue was never seriously raised,
`
`reconsideration is proper and warranted.
`
`Rule 21 does not contemplate severance being used as a means to create delay and
`
`inefficiency, to prejudice a party’s fight to damages, or to require a do-over of already completed
`
`steps in the litigation. To the contrary, prevailing case law indicates that upon severance, the
`
`severed cases are continuations of the previously j oined case. Elmore, 227 F.3d at 1012; Berry,
`
`2001 WL 111035, at * 18. "[S]everance under Rule 21 creates two separate actions or suits
`
`where previously there was but one." Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424,
`
`442 (7th Cir. 2006); see also Ma#bu Media, LLC, 287 F.R.D. at 521 ("The practical effect of
`
`severance of previously-j oined claims is the creation of two or more separate actions." (citation
`
`omitted)). Accordingly, after severance is ordered the severed suit "proceeds as a discrete,
`
`independent action[.]" Gaffney, 451 F.3d at 442 (emphasis added). It does not start over from
`
`scratch. That should be the result here, and the Court’s Order should therefore be revised to
`
`clarify that the work done by the parties prior to the severance has not been undone.
`
`IV.
`
`CONCLUSION
`
`For all of the foregoing reasons, Rosetta respectfully requests that the Court revise the
`
`procedure it has adopted for severing this case. In particular, Rosetta requests that the Court
`
`8
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`Page 12 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 9 of 10 PagelD #:518
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`grant reconsideration and issue a revised Order:
`
`(1) Severing Rosetta’s claims against HTC, LG, Samsung and Motorola from Case No.
`
`15-cv-00799;
`
`(2) Ordering Rosetta to file a Second Amended Complaint for each severed Defendant
`
`group, with each filed under its own case number;
`
`(3) Clarifying that the severance order does not nullify the filing and service of the
`
`earlier-filed complaints or the other proceedings that occurred prior to severance, and
`
`providing that the severed actions shall be treated as continuations of the earlier
`
`actions;
`
`(4) Deeming Rosetta’s prior filing of separate complaints in Case Nos. 1 : 15-cv- 10603,
`
`1:15-cv-10605, 1:15-cv-10608, 1:15-cv-10611 to be in compliance with the above;
`
`and
`
`(5) Requiring that the parties make their Initial Disclosures and Patent Local Rule 2.1
`
`disclosures within seven days of the Court’s reconsideration order.
`
`Page 13 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-1 Filed: 11/30/15 Page 10 of 10 PagelD #:519
`
`Date: November 30, 2015
`
`KOBRE & KIM LLP
`
`/s/ Michael Ng_
`Michael Ng (pro hac vice)
`Daniel A. Zaheer (pro hac vice)
`Michael C. Fasano (pro hac vice)
`Kobre & Kim LLP
`150 California, 19th Floor
`San Francisco, California 94111
`michael.ng@kobrekim, corn
`daniel.zaheer@kobrekim.com
`michael, fasano@kobrekim.com
`(415) 582-4803
`
`STADHEIM & GREAR, LTD.
`
`Rolf O. Stadheim
`Kyle L. Harvey
`Robert M. Spalding
`Christopher H. St. Peter
`400 North Michigan Avenue, Suite 2200
`Chicago, Illinois 60611
`stadheim@stadheimgrear, corn
`harvey@stadheimgrear, corn
`spalding@stadheimgrear, corn
`stpeter@ stadheimgrear, corn
`(312) 755-4400
`
`A ttorneys for Plaintiff Rose tta- Wireless Corp.
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 30, 2015, I electronically filed Rosetta-Wireless
`
`Corp.’ s Memorandum in Support of Plaintiff’ s Motion for Reconsideration of the Court’ s Order
`
`Regarding Motion to Sever with the Clerk of the Court using the CM/ECF system, which will
`
`send notification of such filing to all counsel of record.
`
`/s/ Michael Ng_
`Michael Ng (pro hac vice)
`
`10
`
`Page 14 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-2 Filed: 11/30/15 Page 1 of 2 PagelD #:520
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`ROSETTA-WIRELESS CORP., an Illinois
`Corporation,
`
`Plaintiff
`
`V.
`
`APPLE INC., a California Corporation
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No. 15-cv-00799
`
`Judge Joan H. Lefkow
`
`DECLARATION OF DANIEL A. ZAHEER IN SUPPORT OF MOTION FOR
`RECONSIDERATION OF COURT’S ORDER REGARDING MOTION TO SEVER
`
`I, Daniel A. Zaheer, declare under penalty of perjury the following:
`
`1.
`
`I am an attorney at Kobre & Kim LLP, 150 California, 19th Floor, San Francisco,
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`California 94111, counsel for Plaintiff Rosetta-Wireless Corp. ("Rosetta") in the
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`above-captioned action. I am a member in good standing of the bar for the State of California. I
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`submit this declaration in support of Plaintiff’s Motion for Reconsideration of the Court’s Order
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`Regarding Motion to Sever.
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`2.
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`On November 25, 2015, counsel for HTC Corp. ("HTC") sent a letter to counsel
`
`for Rosetta regarding the new complaint filed against it in Case No. 1:15-cv-10603. Attached as
`
`Exhibit 1 is a true and correct copy of the November 25, 2015 letter.
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`3.
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`On November 25, 2015, counsel for LG Electronics Co. and LG Electronics USA
`
`Inc., (collectively, "LG") sent an email to counsel for Rosetta regarding the new complaint filed
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`against it in Case No. 1:15-cv-10608. Attached as Exhibit 2 is a true and correct copy of the
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`November 25, 2015 email.
`
`1
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`Page 15 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-2 Filed: 11/30/15 Page 2 of 2 PagelD #:521
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`4.
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`On November 25, 2015, counsel for Motorola Mobility LLC ("Motorola") sent an
`
`email to counsel for Rosetta regarding the new complaint filed against it in Case No.
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`1:15-cv-10611. Attached as Exhibit 3 is a true and correct copy of the November 25, 2015 email.
`
`5.
`
`On November 30, 2015, counsel for Motorola sent an email to counsel for Rosetta
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`stating its position regarding the nature of the action filed against it. Attached as Exhibit 4 is a
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`true and correct copy of the November 30, 2015 email.
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`6.
`
`On November 25, counsel for Samsung Electronics Co. Ltd. and Samsung
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`Electronics America, Inc. (collectively, "Samsung") sent an email to counsel for Rosetta
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`regarding the new complaint filed against it in Case No. 1:15-cv-10605. Attached as Exhibit 5 is
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`a true and correct copy of the November 25, 2015 email.
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`Executed on November 30, 2015 in San Francisco, CA.
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`/s/Daniel A. Zaheer
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`Page 16 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-3 Filed: 11/30/15 Page 1 of 2 PagelD #:522
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`Exhibit 01
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`Page 17 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-3 Filed: 11/30/15 Page 2 of 2 PagelD #:523
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`Sheppard, Mullin, Richter & Hampton LLP
`12275 El Camino Real, Suite 200
`San Diego, California 92130-2006
`858.720.8900 main
`858.509.3691 fax
`www.sheppardmullin.com
`
`858.720.7457 direct
`rcunningham @sheppardm ullin.com
`
`SheppardMullin
`
`November 25, 2015
`
`VIA E-MAIL
`
`Daniel Zaheer
`Kobre & Kim LLP
`150 California Street
`San Francisco, CA 94111
`E-Mail: DanieI.Zaheer@kobrekim.com
`
`Re: Rosetta-Wireless v. HTC Corp. et al
`
`Counsel:
`
`I write in response to your letter dated November 24, 2015 regarding Rosetta’s newly filed
`complaint against HTC Corp. and HTC America, Inc. Given the Court’s dismissal of the HTC
`defendants from the original action, there is no basis for your stated positions concerning
`service of Rosetta’s new complaint or the due date for the parties’ initial disclosures. The HTC
`defendants will respond to the complaint in due course after proper service of process.
`Sheppard Mullin is not authorized to accept service on behalf of HTC Corp. or HTC
`America, Inc. If you wish to discuss waiver of service in exchange for an extension of time for
`the HTC defendants to respond to the complaint, please let me know what you propose.
`
`If you would like to discuss any of these issues, please feel free to call me.
`
`Best regards,
`
`/s/ Ryan P. Cunningham
`
`Ryan P. Cunningham
`for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
`
`SMRH:473895531.1
`
`Page 18 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-4 Filed: 11/30/15 Page 1 of 3 PagelD #:524
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`Exhibit 02
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`Page 19 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-4 Filed: 11/30/15 Page 2 of 3 PagelD #:525
`
`Robert Lee
`
`From:
`Sent:
`To:
`
`Cc:
`Subject:
`
`Dear Robert,
`
`Jenny L. Colgate <jcolgate@rothwellfigg.com >
`Wednesday, November 25, 2015 11:26 AM
`Robert Lee; Steven Lieberman; Brian A. Tollefson; ’jfigliulo@fslegal.com’;
`’lmazzone@fslegal.com’; ’twarman@fslegal.com’; Joo Mee Kim
`Michael Ng; Daniel Zaheer
`RE: Rosetta-Wireless v. LG Electronics Co.
`
`Thank you for your email. We disagree that Rosetta’s new Complaint does not need to be re-served "as if this were a
`brand new case." This is a new case; the previous case was dismissed without prejudice as against the LG entities. For
`the same reasons, we also disagree that the parties’ initial disclosures and Patent Local Rule disclosures are due on
`December 2, 2015. The local patent rules provide that the aforementioned deadlines fall fourteen (14) days after
`defendants file answers or other responses. In this case, no answers or other responses have yet been filed. Indeed,
`Rosetta’s Complaint was just filed yesterday. Please point to authority justifying your positions.
`
`Regards,
`Jenny
`
`From: Robert Lee [mailto:Robert.Lee@kobrekim.com]
`Sent: Tuesday, November 24, 2015 8:30 PM
`To: Steven Lieberman; Jenny L. Colgate; Brian A. Tollefson; ’jfigliulo@fslegal.com’; ’lmazzone@fslegal.com’;
`’twarman@fslegal.com’; Joo Mee Kim
`Cc: Michael Ng; Daniel Zaheer
`Subject: Rosetta-Wireless v. LG Electronics Co.
`
`Counsel,
`
`Please see the attached correspondence.
`
`Regards,
`
`Robert Lee
`Litigation Assistant
`+1 415 582 4734
`
`KOBRE & KIM LLP
`www.kobrekim.com
`
`New York I London I Hong Kong I Seoul I Washington DO I San Francisco I Miami I Cayman Islands I BVI
`
`This e-mail message is from Kobre & Kim LLP, a law firm, and may contain legally privileged and/or
`confidential information. If the reader of this message is not the intended recipient(s), or the employee or agent
`responsible for delivering the message to the intended recipient(s), you are hereby notified that any
`dissemination, distribution or copying of this e-mail message is strictly prohibited. If you have received this
`message in error, please notify the sender immediately and delete this e-mail message and any attachments from
`
`Page 20 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-4 Filed: 11/30/15 Page 3 of 3 PagelD #:526
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`your computer without retaining a copy.
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`Page 21 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-5 Filed: 11/30/15 Page 1 of 3 PagelD #:527
`
`Exhibit 03
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`Page 22 of 31
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`

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`Case: 1:15-cv-00799 Document #: 112-5 Filed: 11/30/15 Page 2 of 3 PagelD #:528
`
`Robert Lee
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`Dear Mr. Zaheer,
`
`Rizzolo, Matthew < Matthew.Rizzolo@ropesgray.com >
`Wednesday, November 25, 2015 11:45 AM
`Robert Lee; Daniel Zaheer
`Middleton, Alexander; Cavan, Marc A.; Pepe, Steven; Michael Ng
`Re: Rosetta-Wireless v. Motorola Mobility LLC
`
`We have received your letter regarding the new complaint filed by Rosetta against Motorola.
`
`Please provide the basis for your statement that "the parties’ initial disclosures and Patent Local Rule disclosures are due
`on December 2.<x-apple-data-detectors://O>" The case you originally filed against Motorola was dismissed. This is a
`newly filed complaint, and thus all deadlines restart as of the date that the complaint is properly served on Motorola. If
`you have authority to the contrary, please let us know.
`
`Also, because this is a new case, Motorola will need to be properly served. If you have authority to the contrary, please
`provide it. We have not been authorized to accept service on behalf of Motorola. If you would like us to accept service
`of behalf of Motorola, please advise and we will pass along your request.
`
`Happy Thanksgiving.
`
`Regards,
`
`Matt
`
`On Nov 24, 2015, at 8:29 PM, Robert Lee <Robert.Lee@kobrekim.com<mailto:Robert.Lee(~kobrekim.com>> wrote:
`
`This message cannot be displayed because of the way it is formatted. Ask the sender to send it again