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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`X.COMMERCE, INC.,
`Plaintiff,
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`v.
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`EXPRESS MOBILE, INC.,
`Defendant.
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`EXPRESS MOBILE, INC.,
`
` Plaintiff,
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`v.
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`ADOBE INC., et al.,
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` Defendants.
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`Case No. 17-cv-02605-RS
`
`
`ORDER GRANTING STAY AND
`DENYING MOTION TO
`CONSOLIDATE
`
`
`Case No. 20-cv-08297-RS
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`ORDER DENYING MOTION TO
`CONSOLIDATE
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`
`
`
`1. In Case No. 17-cv-02605-RS, declaratory relief plaintiff X.Commerce, Inc. seeks a stay
`of the action pending reexamination by the Patent and Trademark Office (“PTO”) of the two
`patents in suit. While it would be premature at this juncture to enter a stay expressly extending
`through final conclusion of those reexamination proceedings, a confluence of circumstances
`support a temporary stay, subject to reevaluation of the situation in six months. Even though the
`advanced stage of the litigation ordinarily might weigh against a stay, there is no undue prejudice
`to the patent holder in this instance, particularly where it remains uncertain when a jury trial could
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`GOOGLE EXHIBIT 1041
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`commence.
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` Express Mobile has opposed a stay per se. Nevertheless, it has suggested in the alternative
`a “pause” of this action, to allow Case No. 20-cv-08297-RS (which it contends should be
`formally consolidated herewith) to “catch up.” Even though formal consolidation is not warranted,
`as discussed below, Express Mobile’s suggestion for such a “pause” further shows that this
`temporary stay is appropriate.
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`Accordingly, Case No. 17-cv-02605-RS is hereby stayed through November 30, 2021.
`Two weeks prior to the expiration of the stay the parties shall file a joint status update setting out
`the status of the reexamination proceedings, and their respective positions on whether the stay
`should be extended, and if so, for how long. For administrative purposes, all pending motions in
`this action are deemed denied without prejudice. Once the stay is lifted, any or all of the motions
`may be renewed simply by re-noticing them, although to the extent events in the reexaminations,
`developments in the law, or other changed circumstances warrant supplemental briefing, the
`parties should meet and confer to propose appropriate scheduling.
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`2. Pursuant to Civil Local Rule 7-1(b), the motion to consolidate Case No. 17-cv-02605-
`RS and Case No. 20-cv-08297-RS is suitable for disposition without oral argument and the
`hearing set for March 25, 2021 is vacated. Rule 42 of the Federal Rules of Civil Procedure permits
`but does not define “consolidation” of cases. Here, Express Mobile is not proposing the filing of a
`“consolidated complaint” or seeking any other relief that requires formal “consolidation” of the
`two actions. Both cases are already pending before the same judge and, as this order reflects, are
`subject to any appropriate case management procedures that serve judicial efficiency and the
`interests of justice. Accordingly, the motion to consolidate is denied, but the parties will be
`expected to continue cooperating to ensure the greatest efficiencies in how the two cases proceed.
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`United States District Court
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`IT IS SO ORDERED.
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`Dated: March 5, 2021
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`____ _________________________ ___ __________ _____________________
`______________________________________
`RICHARD SEEBORG
`RRRICHARD SEEBORG
`Chief United States District Judge
`Chief United States District Judge
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