`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`HUAWEI DEVICE USA, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`
`
`Case No. 2:17-cv-513-JRG
`LEAD CASE
`
`Case No. 2:17-cv-516-JRG
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`Defendant.
`
`
`v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`OPPOSED MOTION FOR LEAVE TO FILE MOTION TO STRIKE EXPERT
`DECLARATION OF JOSEPH MCALEXANDER
`SUBMITTED WITH SUMMARY JUDGMENT BRIEFING
`
`Defendant Apple Inc. respectfully requests leave to file a motion to strike new opinions in
`
`Joseph McAlexander’s declaration that AGIS submitted with its opposition brief to Apple’s
`
`Motion for Summary Judgment of Non-Infringement of U.S. Patent No. 8,213,970 more than two
`
`months after opening reports were due and more than two weeks after the deadline to file motions
`
`to strike expert testimony. Dkt. No. 262.
`
`The docket control order contains the following deadlines:
`
`October 29, 2018
`
`November 19, 2018
`
`Serve Disclosures for Expert Witnesses by the Party
`with the Burden of Proof
`Serve Disclosures for Rebuttal Expert Witnesses
`
`
`
`Case 2:17-cv-00513-JRG Document 310 Filed 01/18/19 Page 2 of 4 PageID #: 19503
`
`December 7, 2018
`
`December 14, 2018
`
`December 14, 2018
`
`
`
`Deadline to Complete Expert Discovery
`
`*File Dispositive Motions
`
`*File Motions to Strike Expert Testimony (including
`Daubert Motions)
`
`No motion to strike expert testimony (including a
`Daubert motion) may be filed after this date without
`leave of the Court.
`
`Apple filed and a motion for summary judgment of noninfringement of the ’970 patent on
`
`December 14, 2018. Dkt. No. 228. In responding to that motion, AGIS submitted an expert
`
`declaration from Joseph McAlexander on January 4, 2018, as exhibit 4 to its opposition brief. Dkt.
`
`No. 262-5. The declaration contains new opinions from Mr. McAlexander that were not included
`
`in his opening report that was served two months earlier on October 29, 2018.
`
`Apple’s motion to strike is the proper procedural device to address AGIS’ improper expert
`
`declaration. Joe Andrew Salazar v. HTC Corp., No. 2:16-CV-1096 (E.D. Tex. May 18, 2018)
`
`(granting a motion to strike the plaintiff’s expert’s declaration submitted in response to a summary
`
`judgment motion). And because the McAlexander declaration was submitted more than two weeks
`
`after the deadline to file motions to strike expert testimony, Apple respectfully requests leave to
`
`file a motion to strike the declaration of Mr. Joseph McAlexander.
`
`
`
`
`
`
`
`2
`
`
`
`Case 2:17-cv-00513-JRG Document 310 Filed 01/18/19 Page 3 of 4 PageID #: 19504
`
`DATED: January 18, 2019
`
`
`
`
`
` Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`/s/ Melissa R. Smith
`Melissa R. Smith
`State Bar No. 24001351
`GILLAM & SMITH, LLP
`303 South Washington Ave.
`Marshall, TX 75670
`Tel: (903) 934-8450
`Fax: (903) 934-9257
`melissa@gillamsmithlaw.com
`
`John M. Desmarais
`Paul A. Bondor
`Ameet A. Modi
`Cosmin Maier
`Kerri-Ann Limbeek
`Brian Matty
`Tom BenGera
`Kathryn Bi
`Francesco Silletta
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
`Email: jdesmarais@desmaraisllp.com
`Email: pbondor@desmaraisllp.com
`Email: amodi@desmaraisllp.com
`Email: cmaier@desmaraisllp.com
`Email: klimbeek@desmaraisllp.com
`Email: bmatty@desmaraisllp.com
`Email: tbengera@desmaraisllp.com
`Email: kbi@desmaraisllp.com
`Email: fsilletta@desmaraisllp.com
`
`Counsel for Apple
`
`
`
`
`3
`
`
`
`Case 2:17-cv-00513-JRG Document 310 Filed 01/18/19 Page 4 of 4 PageID #: 19505
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that the foregoing document was filed electronically in compliance with
`
`Local Rule CV-5(a). Counsel of record for AGIS were served with a true and correct copy of the
`
`foregoing document by electronic mail on January 18, 2019.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Melissa R. Smith
`Melissa R. Smith
`
`
`
`
`
`
`
`CERTIFICATE OF CONFERENCE
`
`I hereby certify that counsel for Apple conferred with counsel for AGIS regarding the
`
`foregoing motion on January 18, 2019. Counsel for AGIS indicated that they are opposed to the
`
`relief sought in this motion.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Melissa R. Smith
`Melissa R. Smith
`
`
`
`
`
`
`
`4
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
