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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, L.L.C.,
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`v.
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`Plaintiff,
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`APPLE INC.,
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`Civil Action No. 2:12-cv-02831-JPM-tmp
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`Defendant.
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`MOTION AND MEMORANDUM FOR LEAVE TO FILE
`REPLY SUPPORTING DEFENDANT’S MOTION TO TRANSFER
`(INCLUDING CERTIFICATE OF CONSULTATION)
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`Pursuant to Local Rule 7.2(c), defendant Apple Inc. (“Apple”) respectfully moves for
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`leave to file a reply memorandum, not exceeding 7 pages in length, supporting Apple’s pending
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`motion to transfer venue under 28 U.S.C. 1404 (Dkt. 22). In support, Apple respectfully submits
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`the following:
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`1. This action was commenced on September 22, 2012 (Dkt. 1). Apple timely responded
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`to the complaint on December 31, 2012 (Dkt. 26). On December 20, 2012, Apple filed a motion
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`and supporting documents seeking transfer of this action to the Northern District of California
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`under 28 U.S.C. 1404 (Dkt. 22). Plaintiff B.E. Technology, L.L.C. (“B.E.”) filed a response
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`opposing such transfer on January 7, 2013 (Dkt. 30).
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`2. Determining the most convenient venue is among the most important matters the
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`Court will decide in this action. It determines how the Court will expend its resources managing
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`and deciding the case, how the case will proceed, and a potentially extended series of travel and
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`lodging arrangements for a large number of people. Indeed, given the existence of 18 other cases
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`Case 2:12-cv-02831-JPM-tmp Document 35 Filed 01/17/13 Page 2 of 4 PageID 244
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`filed by the same plaintiff involving common U.S. Patents (as detailed in the transfer motion)
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`and multiple transfer motions, the Court’s decision will likely impact an extremely large number
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`of people. The issue merits thorough consideration of all relevant facts, arguments, and
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`authorities.
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`3. As the moving party, Apple bears the burden on the underlying motion. Allowing
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`Apple an opportunity for rebuttal, through a reply memorandum, comports with fair application
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`of that burden.
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`4. B.E.’s opposition includes arguments that were not predictable as certain or requiring
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`pre-emptive or hypothetical argument in Apple’s opening motion papers, including seemingly
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`contradictory arguments that merit analysis. For example, after Apple’s motion was filed, B.E.
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`submitted its portion of the parties joint Patent Scheduling Conference Notice, arguing that this
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`action should be consolidated with 18 others based on administrative convenience and
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`overlapping issues such as claim construction and invalidity. (Dkt. 31). Yet, its argument against
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`transfer frames the issue as if this were a simple dispute between a single plaintiff and a single
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`defendant. Apple should have the opportunity to address the new issues raised by B.E.’s
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`positions with respect to case administration
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`5. In addition, after Apple filed its motion to transfer, B.E. served infringement
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`contentions identifying for the first time a host of newly accused products, features and
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`functionalities. Those infringement contentions identify as infringing instrumentalities products
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`or services from three third-party companies: Netflix, Hulu, and Google. All those companies
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`are located in California, with Netflix and Google located within the Northern District of
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`California. Apple should be afforded the opportunity to address how these newly accused
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`products, features and functionalities impact transfer.
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`2
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`Case 2:12-cv-02831-JPM-tmp Document 35 Filed 01/17/13 Page 3 of 4 PageID 245
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`6. This action is in an early stage. No Scheduling Order has been entered. The proposed
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`Order on this motion would require Apple to file its reply memorandum within just 7 days from
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`the grant of leave.
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`7. Like any Section 1404 motion in a case of this type, briefing must address a number of
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`issues and circumstances. While Apple is committed to its reply being as concise as possible,
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`coverage of the issues meriting a reply appears likely to require more than the 5 pages normally
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`permitted by Local Rule 7.2(e). This motion respectfully requests authorization to use up to 10
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`pages for such purpose.
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`3
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`Respectfully submitted,
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`s/Glen G. Reid, Jr.
`Glen G. Reid, Jr. (#8184)
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Dr., Suite 800
`Memphis, TN 38120
`Telephone: (901) 537-1000
`Facsimile: (901) 537-1010
`greid@wyattfirm.com
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`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr. (#06389)
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Dr., Suite 800
`Memphis, TN 38120
`Telephone: (901) 537-1000
`Facsimile: (901) 537-1010
`mvorder-bruegge@wyattfirm.com
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`Clay C. James
`Lucky Vidmar
`C. Matthew Rozier
`HOGAN LOVELLS US LLP
`One Tabor Center, Suite 1500
`1200 Seventeenth Street
`Denver, CO 80202
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`Case 2:12-cv-02831-JPM-tmp Document 35 Filed 01/17/13 Page 4 of 4 PageID 246
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`Telephone: (303) 899-7300
`Facsimile: (303) 899-7333
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`Counsel for Defendant
`APPLE INC.
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`CERTIFICATE OF CONSULTATION
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`The undersigned attorney hereby certifies
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`that prior
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`to
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`the
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`filing of
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`this
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`motion, multiple consultations over several days including January 16, 2013, were held with
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`Richard Carter, attorney for plaintiff, to determine whether plaintiff would agree to the relief
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`sought; but such consultations were not successful in reaching agreement.
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`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr.
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
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`effecting service on counsel of record for all other parties who have appeared in this action on
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`the date of such service.
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`60313562.1
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`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr.
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`4