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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`TRAXCELL TECHNOLOGIES, LLC.,
`Plaintiff,
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`v.
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`APPLE INC.
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`Defendant.
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`Civil Action No. 6:21-CV-00074-ADA
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`OPPOSED MOTION TO AMEND COMPLAINT
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`Traxcell respectfully files this Motion to Amend Complaint in the above captioned matter
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`(“Motion”). The Motion should be granted for the following reasons.
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`I.
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`BACKGROUND
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`Traxcell originally pled allegations that Apple infringes claims from two patents: U.S.
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`Patent Nos. 9,918,196 and 9,549,388.1 These were followed by corresponding preliminary
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`infringement contentions. On June 24, 2021, Traxcell added preliminary infringement contentions
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`regarding U.S. Pat. No. 10,820,147 (the ’147 Patent).2 On July 28, 2021, after several back-and-
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`forth communications regarding Traxcell’s intention on amending the complaint to add the ’147
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`Patent, counsel for Apple informed Traxcell’s counsel that they were “still discussing with Apple”
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`regarding whether to oppose Traxcell’s’ motion to amend.3 On July 30, 2021, counsel for Traxcell
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`confirmed that it would amend its pleading to add the ’147 Patent and would provide a copy of the
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`amended pleading “early next week” for counsel to review.4 Counsel for Apple acknowledged
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`1 Doc. 1.
`2 Declaration of Donald Mahoney at ¶3.
`3 Ex. A, July 28, 2021 email from Apple counsel regarding discussing with Apple regarding any opposition.
`4 Ex. B, July 30, 2021 email from Apple counsel to Traxcell counsel regarding providing copy of amended pleading.
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`1
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`Apple Exhibit 1017
`Page 1 of 3
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`Case 6:21-cv-00074-ADA Document 27 Filed 08/06/21 Page 2 of 3
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`this in response.5 On August 5, Traxcell filed their opposition to Apple’s Motion to Stay, noting
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`therein that “Traxcell intends to amend its complaint by August 6, 2021 to assert infringement of
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`U.S. Pat. No. 10,820,147 as well.”6 Attached as Exhibit C is Traxcell’s Amended Complaint.
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`ARGUMENT
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`II.
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`This Motion is brought well before the deadline to amend pleadings (May 11, 2022) in the
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`Agreed Scheduling Order.7 This Motion is brought per Federal Rule 15(a). In this Court:
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`A district court reviewing a motion to amend pleadings under Rule 15(a) considers
`five factors: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure
`to cure deficiencies by previous amendments; (4) undue prejudice to the opposing
`party; and (5) futility of amendment. Smith v. EMC, 393 F.3d F.3d 590, 595 (5th
`Cir. 2004) (citing Forman v. Davis, 371 U.S. 178, 182 (1962).8
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`There should be no finding of undue delay as the motion for leave was filed within the court-
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`ordered deadline.9 As Traxcell has not previously moved to amend, there should be no finding of
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`bad faith or dilatory motive.10 Given the notice provided to Apple in advance and the fact that
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`Apple never expressed that it would face undue prejudice if Traxcell amended its complaint, there
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`should be no reason to deny the amendment.11
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`III. CONCLUSION
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`For all the above reasons, Traxcell respectfully argues that its Motion be granted.
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`Respectfully submitted,
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`Ramey & Schwaller, LLP
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`5 Id.
`6 Doc. No. 26 n.2.
`7 Doc. 23.
`8 Frantz Design v. Diamond Orthotic Lab., No. 1:19-CV-00970-ADA, 2020 U.S. Dist. LEXIS 256818 at *6 (W.D.
`Tex. May 26, 2020).
`9 Id.
`10 Id. at *6-7.
`11 Id. at *7.
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`2
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`Apple Exhibit 1017
`Page 2 of 3
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`Case 6:21-cv-00074-ADA Document 27 Filed 08/06/21 Page 3 of 3
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`By: /s/ William P. Ramey, III
`William P. Ramey, III
`Texas Bar No. 24027643
`5020 Montrose Blvd., Suite 800
`Houston, Texas 77006
`(713) 426-3923 (telephone)
`(832) 900-4941 (fax)
`wramey@rameyfirm.com
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`Attorneys for Traxcell Technologies, LLC
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`CERTIFICATE OF CONFERENCE
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`Pursuant to the Federal Rules of Civil Procedure, counsel for Traxcell had a number of
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`email correspondences with counsel for Apple regarding the subject of this Motion, as described
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`above. Today, August 6, 2021, counsel for Apple informed counsel for Traxcell that “Apple has
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`decided to litigate the ’147 patent in the Northern District of California.” Apple filed a complaint
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`for declaration judgment of noninfringement of the ’147 patent on August 5, 2021. Apple, Inc. v.
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`Traxcell Techs. LLC, NDCA 5-21-cv-06059. Accordingly, Traxcell is treating this Motion as
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`opposed.
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`/s/ William P. Ramey, III
`William P. Ramey, III
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`CERTIFICATE OF SERVICE
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`Pursuant to the Federal Rules of Civil Procedure, I hereby certify that all counsel of record
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`who have appeared in this case are being served today, August 6, 2021, with a copy of the
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`foregoing via the Court's CM/ECF system.
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`/s/ William P. Ramey, III
`William P. Ramey, III
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`3
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`Apple Exhibit 1017
`Page 3 of 3
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