Case 6:12-cv-00799-JRG Document 40 Filed 06/21/13 Page 1 of 6 PageID #: 1430
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Plaintiff,
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`Case No. 6:12-cv-00799-LED
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`INVENSYS SYSTEMS, INC.,
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`vs.
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`Defendants.
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`and
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`MICRO MOTION INC., USA,
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`Counterclaim-Plaintiff,
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`vs.
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Defendant.
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`DEFENDANTS EMERSON ELECTRIC CO.’S AND MICRO MOTION, INC.’S REPLY
`IN SUPPORT OF THEIR MOTION TO STAY PROCEEDINGS PENDING
`RESOLUTION OF MICRO MOTION, INC.’S MOTION
`TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
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`4814-8451-0996.1
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`Case 6:12-cv-00799-JRG Document 40 Filed 06/21/13 Page 2 of 6 PageID #: 1431
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`I.
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`INTRODUCTION
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`Emerson’s and Micro Motion’s motion for a stay pending a decision on their
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`motion to transfer is supported by the facts and by the law as set forth by this District and the
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`Federal Circuit. The requested stay will not prejudice Invensys, but denial of the stay will harm
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`Emerson and Micro Motion.
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`II.
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`EMERSON’S AND MICRO MOTION’S REQUEST FOR A STAY SHOULD BE
`GRANTED
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`A.
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`A Stay Will Not Prejudice Invensys
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`The facts do not support Invensys’ claim that the requested stay would “severely
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`prejudice” it because Micro Motion is a direct competitor with respect to Coriolis flowmeters.
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`(Dkt. No. 38 at 1.) If Invensys was truly concerned with the speed of resolution of its claims,
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`Invensys would not have waited so long to file them. One of the patents-in-suit (U.S. Patent No.
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`6,311,136) issued on October 30, 2001. Most of the other patents-in-suit issued by 2006. This
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`lawsuit was filed in 2012. All of the patents-in-suit relate to the use of digital signal processing,
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`and each of them accuses the same products of infringing them. Invensys could have filed this
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`suit years before it did. If the alleged harm was not sufficient to motivate Invensys to file this
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`lawsuit until years after the patents-in-suit issued, and six years after Micro Motion began selling
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`the accused products, a short stay of the case now to give the Court adequate time to reach a
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`decision on the motion to transfer will not “severely prejudice” Invensys, particularly as this case
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`is in its infancy and no schedule has been entered.
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`As Invensys acknowledges, transfer motions are to be promptly resolved. (Dkt.
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`No. 38 at 3.) A brief stay while the transfer motion is decided will not impact Invensys because
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`it sat on its rights for years prior to filing suit.
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`Case 6:12-cv-00799-JRG Document 40 Filed 06/21/13 Page 3 of 6 PageID #: 1432
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`B.
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`Denial Of A Stay Will Prejudice Emerson And Micro Motion
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`Contrary to Invensys’ claim, the initial discovery in this case will not all be
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`required if the case is transferred to the District of Colorado. The Eastern District of Texas has
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`patent-specific local rules that are not in place in Colorado. For example, in Colorado, there is
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`no requirement to either file/serve infringement or invalidity contentions as there is in this
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`District. If the stay is not granted, the parties will be required to comply with the local rules
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`here, when such compliance will not be required in Colorado.
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`Invensys’ position that a ruling on a motion to transfer must be delayed for a year
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`or more before a motion to stay can be granted, (id. at 3-5), is not found in any of the cases it
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`cites. Rather, the decisions cited by both parties are consistent in holding that district courts
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`should not proceed with litigation in a forum until the disposition of a motion to transfer under
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`§ 1404(a) is decided. See, e.g., In re Fusion-IO, Inc., 489 Fed. Appx. 465, 465 (Fed. Cir. 2012)
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`(non-precedential); In re EMC Corp., 501 Fed. Appx. 973, 975-76 (Fed. Cir. 2013) (non-
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`precedential).
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`C.
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`Granting A Stay Will Not Encourage Gamesmanship
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`Despite the fact that Invensys is a Massachusetts corporation, despite the fact that
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`almost every inventor on the patents-in-suit is in Great Britain, despite the fact that Micro
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`Motion is a Colorado corporation, and despite the fact that Emerson is a Missouri corporation,
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`Invensys chose to file this lawsuit in a venue that has no more connection to this matter than any
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`other venue across the country. In the face of these facts, Invensys accuses Emerson and Micro
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`Motion of “gamesmanship” for requesting that the lawsuit be transferred to a venue where Micro
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`Motion is located and all of the engineers who designed the accused products, relevant
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`marketing personnel, and the relevant Micro Motion documents may be found. Emerson and
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`Micro Motion are not engaged in gamesmanship. The are seeking to transfer this lawsuit to the
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`Case 6:12-cv-00799-JRG Document 40 Filed 06/21/13 Page 4 of 6 PageID #: 1433
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`District of Colorado, which is convenient for the witnesses and where the relevant documents are
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`located.
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`D.
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`Invensys’ Argument On The Merits Of The Transfer Motion Is Improper
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` Despite having ample opportunity to brief the pending Motion to Transfer, (Dkt.
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`No. 26), Invensys sets forth additional arguments now. While Emerson and Micro Motion will
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`rely on their briefs in that Motion, (Dkt. Nos. 14, 30-31), some errors in Invensys’ Response,
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`(Dkt. No. 38), must be corrected.
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`First, Invensys incorrectly argues that Emerson’s and Micro Motion’s statement
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`that negotiations on the Docket Control, ESI, and Discovery Orders were not yet conducted is
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`misleading. (Id. at 2.) Invensys is wrong. At the time that Emerson and Micro Motion made
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`that statement, it was true. Since then, the parties have begun to negotiate those orders.
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`Second, Invensys claims that all of its “proposed orders track the Court’s model
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`orders, and their acceptance should be uncontroversial.” (Id.) But Invensys’ proposed orders
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`differ from the model orders in several significant respects, and Emerson and Micro Motion do
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`not agree to all of the proffered changes and revisions.
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`Third, Invensys makes the unsupported claim that “all of Emerson’s evidence is
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`located in Missouri.” (Id.) But it is unlikely that Emerson has any relevant evidence, as
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`Emerson does not make, use, sell, offer to sell, or import any of the accused products.
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`Fourth, Invensys argues that Texas has a special connection to the subject matter
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`of the suit that Colorado does not share. (Id.) While it could be argued that every state has its
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`own unique connection to products that are sold nationwide, that is not the test for a motion to
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`transfer. See generally Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430
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`(2007) (stating that when a plaintiff files a suit outside of its home forum, the presumption that
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`its choice of forum is convenient and appropriate “applies with less force”).
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`Case 6:12-cv-00799-JRG Document 40 Filed 06/21/13 Page 5 of 6 PageID #: 1434
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`III. CONCLUSION
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`For the above reasons and the reasons set forth in their Motion, (Dkt. No. 36),
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`Emerson and Micro Motion respectfully request the Court order a stay of all other proceedings in
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`this case pending resolution of their Motion to Transfer.
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`Respectfully submitted,
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`/s/ Kadie M. Jelenchick
`Linda E.B. Hansen, WI Bar No. 1000660
`Richard S. Florsheim, WI Bar No. 1015905
`Jeffrey N. Costakos, WI Bar No. 1008225
`Kadie M. Jelenchick, WI Bar No. 1056506
`Matthew J. Shin, WI Bar No. 1090096
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, Wisconsin 53202
`Phone: (414) 271-2400
`Fax: (414) 297-4900
`Email: lhansen@foley.com
`rflorsheim@foley.com
`jcostakos@foley.com
`kjelenchick@foley.com
`mshin@foley.com
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`Attorneys for Defendants Emerson Electric
`Co. and Micro Motion, Inc.
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`Dated: June 21, 2013
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`Guy N. Harrison, State Bar No. 00000077
`Harrison Law Firm
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`217 N. Center Street
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`Longview, Texas 75606
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`Phone: (903) 758-7361
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`Fax: (903) 753-9557
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`Email: guy@gnhlaw.com and
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`cj-gnharrison@att.net
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`4814-8451-0996.1
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`Case 6:12-cv-00799-JRG Document 40 Filed 06/21/13 Page 6 of 6 PageID #: 1435
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 21, 2013, I electronically filed the foregoing
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`document with the Clerk of Court using the CM/ECF system which will send notification of such
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`filing via electronic mail to all counsel of record.
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`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
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`4814-8451-0996.1
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