`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`TRAXCELL TECHNOLOGIES, LLC.,
`Plaintiff,
`
`v.
`
`APPLE INC.
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`
`Civil Action No. 6:21-CV-00074-ADA
`
`OPPOSED MOTION TO AMEND COMPLAINT
`
`Traxcell respectfully files this Motion to Amend Complaint in the above captioned matter
`
`(“Motion”). The Motion should be granted for the following reasons.
`
`I.
`
`BACKGROUND
`
`Traxcell originally pled allegations that Apple infringes claims from two patents: U.S.
`
`Patent Nos. 9,918,196 and 9,549,388.1 These were followed by corresponding preliminary
`
`infringement contentions. On June 24, 2021, Traxcell added preliminary infringement contentions
`
`regarding U.S. Pat. No. 10,820,147 (the ’147 Patent).2 On July 28, 2021, after several back-and-
`
`forth communications regarding Traxcell’s intention on amending the complaint to add the ’147
`
`Patent, counsel for Apple informed Traxcell’s counsel that they were “still discussing with Apple”
`
`regarding whether to oppose Traxcell’s’ motion to amend.3 On July 30, 2021, counsel for Traxcell
`
`confirmed that it would amend its pleading to add the ’147 Patent and would provide a copy of the
`
`amended pleading “early next week” for counsel to review.4 Counsel for Apple acknowledged
`
`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.
`
`1
`
`Apple Exhibit 1017
`Page 1 of 3
`
`
`
`Case 6:21-cv-00074-ADA Document 27 Filed 08/06/21 Page 2 of 3
`
`this in response.5 On August 5, Traxcell filed their opposition to Apple’s Motion to Stay, noting
`
`therein that “Traxcell intends to amend its complaint by August 6, 2021 to assert infringement of
`
`U.S. Pat. No. 10,820,147 as well.”6 Attached as Exhibit C is Traxcell’s Amended Complaint.
`
`ARGUMENT
`
`II.
`
`
`This Motion is brought well before the deadline to amend pleadings (May 11, 2022) in the
`
`Agreed Scheduling Order.7 This Motion is brought per Federal Rule 15(a). In this Court:
`
`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
`
`
`There should be no finding of undue delay as the motion for leave was filed within the court-
`
`ordered deadline.9 As Traxcell has not previously moved to amend, there should be no finding of
`
`bad faith or dilatory motive.10 Given the notice provided to Apple in advance and the fact that
`
`Apple never expressed that it would face undue prejudice if Traxcell amended its complaint, there
`
`should be no reason to deny the amendment.11
`
`III. CONCLUSION
`
`
`For all the above reasons, Traxcell respectfully argues that its Motion be granted.
`
`Respectfully submitted,
`
`Ramey & Schwaller, LLP
`
`
`
`
`
`
`
`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.
`
`
`
`2
`
`Apple Exhibit 1017
`Page 2 of 3
`
`
`
`Case 6:21-cv-00074-ADA Document 27 Filed 08/06/21 Page 3 of 3
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`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
`
`
`Attorneys for Traxcell Technologies, LLC
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF CONFERENCE
`
`Pursuant to the Federal Rules of Civil Procedure, counsel for Traxcell had a number of
`
`email correspondences with counsel for Apple regarding the subject of this Motion, as described
`
`above. Today, August 6, 2021, counsel for Apple informed counsel for Traxcell that “Apple has
`
`decided to litigate the ’147 patent in the Northern District of California.” Apple filed a complaint
`
`for declaration judgment of noninfringement of the ’147 patent on August 5, 2021. Apple, Inc. v.
`
`Traxcell Techs. LLC, NDCA 5-21-cv-06059. Accordingly, Traxcell is treating this Motion as
`
`opposed.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ William P. Ramey, III
`William P. Ramey, III
`
`CERTIFICATE OF SERVICE
`
`Pursuant to the Federal Rules of Civil Procedure, I hereby certify that all counsel of record
`
`who have appeared in this case are being served today, August 6, 2021, with a copy of the
`
`foregoing via the Court's CM/ECF system.
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ William P. Ramey, III
`William P. Ramey, III
`
`3
`
`
`
`
`
`
`Apple Exhibit 1017
`Page 3 of 3
`
`