Case 2:17-cv-00140-RWS-RSP Document 27 Filed 07/14/17 Page 1 of 6 PageID #: 426
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`CYWEE GROUP LTD.,
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` Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.
`
` Defendants.
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` CASE NO. 2:17-cv-00140-RWS-RSP
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`
`
`JURY TRIAL DEMANDED
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`
`PLAINTIFF’S REPLY IN SUPPORT OF ITS
`MOTION TO COMPEL DEFENDANTS TO REPLEAD
`THEIR ANSWER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
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`Samsung’s responses are improper and will require CyWee (and this Court) to spend
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`time, effort and money to discovery and prove facts that may not be in dispute. The Court
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`should grant CyWee’s motion and require Samsung to answer CyWee’s complaint in
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`accordance with Rule 8(b).
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`I. ARGUMENT
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`A. Samsung’s responses do not put CyWee on notice of the allegation in dispute.
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`All of Samsung’s 220 responses at issue here are identical to the one shown below:
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`CyWee’s Allegation
`39. The Samsung Galaxy S6 includes a
`processor that is capable of processing
`data associated with measurement from
`a 3-axis accelerometer.1
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`Samsung’s Response
`39. To the extent that the allegation of Paragraph
`39 sets forth a legal conclusion, no response is
`required. Samsung denies all remaining
`allegations of Paragraph 39.2
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`Samsung claims the first sentence “addresses any claim construction issues” and the
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`1 Dkt. 9 at ¶ 39.
`2 Dkt. 15 at ¶ 39.
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION
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`Case 2:17-cv-00140-RWS-RSP Document 27 Filed 07/14/17 Page 2 of 6 PageID #: 427
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`“second sentence addresses any factual basis for the paragraph.”3 But neither this response
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`nor its 219 identical brethren4 put CyWee on notice of what specific language Samsung
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`claims is a legal conclusion and what language is a factual allegation that Samsung denies.
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`To place Samsung’s game in context, the Court should understand that these allegations
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`were carefully created. For example, Samsung’s published specification for its S6 phone
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`states that the S6 contains both a processor and an accelerometer:5
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`So what exactly is Samsung denying? Is Samsung denying that the processor in its S6 “is
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`capable of processing data associated with measurement from a 3-axis accelerometer”? Is
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`Samsung denying the S6 has a processor at all? Is Samsung denying that the S6 has a 3-axis
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`accelerometer? Is Samsung taking the position that certain terms in paragraph 39 require
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`construction? If so, which ones?
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`Samsung’s use of the impermissible qualifying phrase “[t]o the extent”6 is improper.
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`3 Dkt. 25 at 2.
`4 See Dkt. 24-1.
`5 See http://www.samsung.com/us/support/owners/product/galaxy-s6-at-t.
`6 Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 114CV00006RLMSLC, 2017 WL
`1101096, at *3 (N.D. Ind. Mar. 21, 2017) (“Valley Forge's incorporation of the phrase
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION
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`Case 2:17-cv-00140-RWS-RSP Document 27 Filed 07/14/17 Page 3 of 6 PageID #: 428
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`Rule 8 requires an admission, denial, or a specific partial admission and denial7 Samsung’s
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`response leaves CyWee with no way of determining what portion of each allegation, if any,
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`that Samsung is refusing to provide an admission or denial.
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`A proper response that narrows the issues for discovery and trial looks like this:
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`Samsung admits the Samsung Galaxy S6 includes a processor
`capable of processing data associated with measurement from a
`3-axis accelerometer.
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`Or, if Samsung cannot understand what “3-axis accelerometer” means absent claims
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`construction:
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`Samsung admits the Samsung Galaxy S6 includes a processor.
`Samsung cannot admit or deny that the processor in the Galaxy
`S6 is capable processing data associated with measurement
`from a 3-axis accelerometer because Samsung believes the term
`“3-axis accelerometer” must be construed by the Court and that
`under a proper construction the S6 device may not contain a
`“3-axis accelerometer.”8
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`As this Court has previously noted, “the theory behind Federal Rule of Civil Procedure
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`8(b) addressing a defendant's admissions and/or denials to a plaintiff's complaint is that ‘a
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`defendant's pleading should apprise the opponent of those allegations in the complaint that
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`stand admitted and will not be in issue at trial and those that are contested and will require
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`proof to be established to enable the plaintiff to prevail.’”9 So Rule 8 is intended to avoid
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`‘to the extent that further response may be required’ is akin to an impermissible qualified
`denial.”).
`7 FED. R. CIV. P. 8(b).
`8 Such a response would be improper if it cannot be disputed that Samsung’s S6 device
`contains a 3-axis accelerometer under the claim construction that Samsung believes is correct.
`9 See Padre Nterprises, Inc. v. Rhea, No. 4:11CV674, 2013 WL 394811, at *2 (E.D. Tex. Jan.
`31, 2013) (Bush, M.J.) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and
`Procedure § 1261 (3d ed.2011)).
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION
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`Case 2:17-cv-00140-RWS-RSP Document 27 Filed 07/14/17 Page 4 of 6 PageID #: 429
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`“needless time and effort … having to prove undisputed matters.”10 Samsung’s responses
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`defeat this purpose.
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`Further, the importance of Rule 8(b) has only increased considering the recent
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`proportional discovery limitations added to Federal Rule 26(b)(1). CyWee should not be
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`required to pursue discovery to obtain proof regarding issues that are not and cannot
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`credibly be contested. Samsung should be required to replead to clearly and unambiguously
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`admit or deny each of CyWee’s allegations or state precisely why an admission or denial is
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`not possible. Each denial must be warranted by the evidence or reasonably based on
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`Samsung’s belief or lack of information as required by Rule 11.11
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`B. Samsung has failed to cite a single case that supports its interpretation of Rule 8.
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`None of the three cases cited by Samsung demonstrate that Samsung’s responses meet
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`the requirements of Rule 8.
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`First, the allegations at issue in Barnes v. AT&T Benefit Plan were quite different from
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`those at issue here. Barnes involved only four responses (shown in Exhibit A) that “neither
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`admitted or denied because the allegation was a legal conclusion.”12 The allegations the
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`Barnes defendant was responding to were verbatim recitations, or paraphrased references to
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`federal statutes; not detailed descriptions of defendant’s own products, like the allegations at
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`issue here.13 Here Samsung is attempting to avoid specifically answering 220 factual
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`allegations that allege the existence of very specific physical components in Samsung’s
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`10 Bruce v. Anthem Ins. Companies, Inc., No. 3:15-CV-0353-D, 2015 WL 1860002, at *3 (N.D.
`Tex. Apr. 23, 2015).
`11 FED. R. CIV. P. 11(b)(4).
`12 Ex. C at 10 (“In response to the Complaint, Defendant has explicitly stated that it ‘neither
`admits or denies the allegations’ because the paragraph consists of ‘a legal assertion or legal
`contention or a legal conclusion.’ E.g., Ans. ¶¶ 129, 130, 142; see also id. ¶¶93.”).
`13 Ex. H; see also Ex. A at ¶¶ 93, 129, 130, 142; and Ex. B at ¶¶ 93, 129, 130, 142.
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION
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`Case 2:17-cv-00140-RWS-RSP Document 27 Filed 07/14/17 Page 5 of 6 PageID #: 430
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`accused products.
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`Similarly, in Guifu Li v. A Perfect Day Franchise, Inc. the defendants responded to most
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`allegations by admitting or denying them.14 The allegations that defendants responded to by
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`stating that they “amount to legal conclusions to which no answer is required” again quoted
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`or paraphrased sections of statutes and did not involve facts regarding defendant’s products,
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`several examples of which are shown in Exhibit B.15
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`Finally, Samsung’s claim that the court in Genetic Technologies Ltd. v. Agilent Technologies
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`found “[s]imilar responses … to be sufficient” has no basis.16 In that case, the Court found
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`that “no salutary purpose would be served by requiring minor wording changes to remove
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`what is at most only theoretical ambiguity.”17 The ambiguity here is real. Does the Samsung
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`S6 include a processor? Does the Samsung S6 include a 3-axis accelerometer? Can the
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`processor process data from the 3-axis accelerometer? Samsung has not answered these
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`questions.
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`II. CONCLUSION
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`Rule 8(b) is intended to streamline cases by requiring Defendants to identify undisputed
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`issues. Samsung must properly admit or deny the existence, functionality, and purpose of
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`the components contained in the accused phones, components that were meticulously
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`identified in claim charts provided to Samsung with the Complaint. Samsung has not
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`provided a credible reason, factually or legally, for its failure to properly admit or deny
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`Cywee’s allegations. The Court should compel Samsung to replead to comply with Rule 8.
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`14 Ex. E.
`15 Ex. I; see also Ex. D at ¶¶ 25 & 52; and Ex. E at ¶¶ 25 & 52.
`16 Dkt. 25 at 4.
`17 Genetic Techs. Ltd. v. Agilent Techs., Inc., No. CV 12-01616 RS, 2014 WL 3908192, at *1 (N.D.
`Cal. Aug. 11, 2014); See also Ex. F; and Ex. G.
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION
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`Case 2:17-cv-00140-RWS-RSP Document 27 Filed 07/14/17 Page 6 of 6 PageID #: 431
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`Date: July 14, 2017
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`Respectfully submitted,
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`/s/ Christopher L. Evans
`Michael W. Shore
`Texas State Bar No. 18294915
`mshore@shorechan.com
`Alfonso Garcia Chan
`Texas State Bar No. 24012408
`achan@shorechan.com
`Christopher L. Evans
`Texas State Bar No. 24058901
`cevans@shorechan.com
`Ari B. Rafilson
`Texas State Bar No. 24060456
`arafilson@shorechan.com
`Paul T. Beeler
`Texas State Bar No. 24095432
`pbeeler@shorechan.com
`SHORE CHAN DEPUMPO LLP
`901 Main Street, Suite 3300
`Dallas, Texas 75202
`(T) 214.593.9110
`(F) 214.593.9111
`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on July 14, 2017, a true and correct copy of the
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`foregoing document was served upon Defendants Samsung Electronics Co., Ltd. and
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`Samsung Electronics America, Inc., by and through their counsel of record, via the Court’s
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`Electronic Filing System, pursuant to Local Rule CV-5.
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`/s/ Christopher L. Evans
`Christopher L. Evans
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`PLAINTIFF’S REPLY IN SUPPORT OF ITS MOTION
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`PAGE 6
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