Case 2:17-cv-00676-RWS-RSP Document 66 Filed 04/04/18 Page 1 of 6 PageID #: 3920
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Godo Kaisha IP Bridge 1
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`vs.
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`Intel Corporation
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`Plaintiff,
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`Defendant.
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`Civil Action No. 2:17-cv-00676-RWS-RSP
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`INTEL CORPORATION’S MOTION FOR LEAVE TO FILE A SUR-SUR REPLY
`IN SUPPORT OF ITS MOTION TO DISMISS FOR IMPROPER VENUE
`OR, IN THE ALTERNATIVE, TO TRANSFER TO THE DISTRICT OF OREGON
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`Case 2:17-cv-00676-RWS-RSP Document 66 Filed 04/04/18 Page 2 of 6 PageID #: 3921
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`Defendant Intel Corporation (“Intel”) hereby moves for leave to file a short sur-sur-reply
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`solely to address a new argument concerning the McAfee facility raised for the first time in
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`Plaintiff Godo Kaisha IP Bridge 1’s (“Godo Kaisha”) sur-reply. That argument could, and should,
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`have been raised in Godo Kaisha’s Opposition. To the extent the Court considers this new
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`argument, Intel respectfully requests leave to respond. Intel’s proposed sur-sur-reply responding
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`to that new argument will be filed separately and immediately after this motion. L.R. CV-7(k).
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`In its Opposition brief, Godo Kaisha exclusively argued that the McAfee location should
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`be deemed an Intel location due to Intel’s alleged “partnership” with McAfee at the time the
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`Complaint was filed. D.I. 52 at 1, 13–15 (referencing the “sole dispute” and analyzing the Plano
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`facility “after Intel spun-out McAfee,” “[a]s of the time of filing this suit” and “[w]hen this suit
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`was filed”). Faced with numerous agreements and other evidence establishing that there is no
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`partnership, Godo Kaisha’s sur-reply offered a new, alternative theory: that prior to Intel’s
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`divestment of McAfee in April 2017—over five months before Godo Kaisha filed its complaint—
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`the McAfee location was a regular and established location for Intel, making venue in this District
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`proper. D.I. 64 at 4. This is an argument that Godo Kaisha had ample opportunity to properly
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`raise in its Opposition, but did not. D.I. 21 at 1, 5 (Intel’s Motion addressing Intel’s April 2017
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`divestiture of McAfee). Indeed, Godo Kaisha’s Plano-based arguments were expressly limited to
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`“[a]s of the time of filing this suit” and “[w]hen this suit was filed.” D.I. 52 at 1, 13–15. Similarly,
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`Godo Kaisha submits new evidence for the first time on sur-reply, well in hand as of the time of
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`its Opposition, to support this new argument. E.g., D.I. 64-10.
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`“It is a basic tenet of civil procedure that [sur-]reply briefing may only respond to the
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`allegations raised in the [movant’s reply].” Z-Tel Commc’ns, Inc. v. SBC Commc’ns, Inc., 331 F.
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`Supp. 2d 513, 539 (E.D. Tex. 2004). It is improper for Plaintiffs to lay in wait and spring a new
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`Case 2:17-cv-00676-RWS-RSP Document 66 Filed 04/04/18 Page 3 of 6 PageID #: 3922
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`argument on the moving Defendants in a sur-reply. “To hold otherwise would countenance
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`litigation by ambush.” Id.; see also United States v. Brown, 305 F.3d 304, 308 n.4 (5th Cir. 2002)
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`(“This Court will not consider a claim raised for the first time in a reply brief.”); United States v.
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`Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir. 2005) (“Just as we will not entertain issues first raised
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`by an appellant in his reply brief, . . . we will not consider new arguments first raised by an appellee
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`in supplemental briefing on unrelated issues.”) (internal citation omitted).
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`Where a new sur-reply argument is not struck, sur-sur-reply briefs generally are permitted.
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`See Lewis v. Rumsfeld, 1 54 F. Supp. 2d 56, 61 (D.D.C. 2001); see also St. Clair Intellectual
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`Property Consultants, Inc. v. Samsung Electronics Co. Ltd., 291 F.R.D. 75 (D. Del. 2013) (court
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`may grant leave to file a sur-reply that responds to new evidence, facts, or arguments). In
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`determining whether to permit a sur-sur-reply, a court should generally consider whether a sur-
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`sur-reply would be helpful to the resolution of the pending motion, and whether the non-movant
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`was actually unable to address the issue previously. See Glass v. Lahood, 786 F. Supp. 2d 189,
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`231 (D.D.C. May 20, 2011).
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`The standards for allowing a sur-sur-reply are easily satisfied here. IP Bridge’s sur-reply
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`raised an entirely new argument that could and should have been raised in its Opposition brief.
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`Although (as Intel argues in the attached sur-sur-reply) that untimely argument is waived, to the
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`extent the Court considers it, Intel respectfully requests an opportunity to respond. Specifically,
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`Intel respectfully requests that the Court grant its Motion for Leave to File a Sur-Sur-Reply
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`Supporting its Motion to Dismiss or Transfer.
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`Dated: April 4, 2018
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`Respectfully submitted,
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`/s/ Michael E. Jones
`Michael E. Jones (SBN: 10929400)
`Patrick C. Clutter IV (SBN: 2403634)
`POTTER MINTON, PC
`110 North College, Suite 500
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`3
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`Case 2:17-cv-00676-RWS-RSP Document 66 Filed 04/04/18 Page 4 of 6 PageID #: 3923
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`Tyler, Texas 75702
`Tel: 903-597-8311
`Fax: 903-593-0846
`mikejones@potterminton.com
`patrickclutter@potterminton.com
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`Gregory S. Arovas (pro hac vice)
`KIRKLAND & ELLIS LLP
`601 Lexington Ave.
`New York, NY 10022
`Tel: 212-446-4800
`Fax: 212-446-4900
`gregory.arovas@kirkland.com
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`Adam R. Alper (pro hac vice)
`Sarah Piepmeier (pro hac vice)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Tel: 415-439-1400
`Fax:415-439-1500
`adam.alper@kirkland.com
`sarah.piepmeier@kirkland.com
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`Michael W. De Vries
`Christopher M. Lawless (pro hac vice)
`KIRKLAND & ELLIS LLP
`333 South Hope Street
`Los Angeles, CA 90071
`Tel: 213-680-8400
`Fax: 213-680-8500
`michael.devries@kirkland.com
`christopher.lawless@kirkland.com
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`Attorneys for Defendant
`Intel Corporation
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`Case 2:17-cv-00676-RWS-RSP Document 66 Filed 04/04/18 Page 5 of 6 PageID #: 3924
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who have consented to electronic
`service are being served with a copy of this document via the Court’s CM/ECF system pursuant
`to Local Rule CV-5(a)(3) on this 4th day of April, 2018
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`/s/ Michael E. Jones
`Michael E. Jones
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`Case 2:17-cv-00676-RWS-RSP Document 66 Filed 04/04/18 Page 6 of 6 PageID #: 3925
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`CERTIFICATE OF CONFERENCE
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`The undersigned certifies that counsel of record for Intel Corporation (Christopher Lawless
`and Patrick Clutter) and Godo Kaisha IP Bridge 1 (Andrew Radsch) complied with the meet and
`confer requirement of Local Rule CV-7(h), having a telephonic conference on April 3, 2018. Intel
`understands that IP Bridge opposes Intel’s motion, and that IP Bridge disagrees with Intel’s
`assertion that IP Bridge raised, for the first time in its sur-reply, its argument and evidence
`regarding the McAfee Plano facility before April 2017. The parties’ discussions on this issue have
`conclusively ended in an impasse, leaving an open issue for the Court to resolve.
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`/s/ Christopher Lawless, with permission by
`Michael E. Jones
`Christopher Lawless
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