Case 6:15-cv-00907-RWS-KNM Document 102 Filed 07/08/16 Page 1 of 6 PageID #: 2788
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Plaintiffs,
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`SIPCO, LLC, and IP CO, LLC
`(d/b/a INTUS IQ),
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` v.
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`EMERSON ELECTRIC CO., EMERSON
`PROCESS MANAGEMENT LLP, FISHER-
`ROSEMOUNT SYSTEMS, INC.,
`ROSEMOUNT INC., BP p.l.c., BP
`AMERICA, INC., and BP AMERICA
`PRODUCTION COMPANY,
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`Defendants.
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` Civil Action No. 6:15-cv-907
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`PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ EMERGENCY
`MOTION TO STAY PENDING TRANSFER
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`Plaintiffs, SIPCO, LLC and IP CO, LLC (d/b/a INTUS IQ) (together “SIPCO” or
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`“Plaintiffs”), respectfully submit this Memorandum in Opposition to the Emergency Motion to
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`Stay Pending Transfer (“Motion to Stay”) filed by Defendants Emerson Electric Co., Emerson
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`Process Management LLP, Fisher-Rosemount Systems, Inc., Rosemount Inc., BP p.l.c., BP
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`America, Inc. and BP America Production Company (together “Defendants”) (ECF 99).
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`Defendants’ Motion to Stay requests the Court to “vacat[e] the pending due dates [in the
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`Amended Docket Control Order] pending transfer of this action.” This case and the case pending
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`in the Georgia transferee court are on similar claim construction and discovery tracks. The claim
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`construction procedures this Court employs are similar to those employed by the Georgia
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`transferee court. Discovery in both cases is proceeding in parallel in an efficient manner.
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`Delaying this case for any reason accomplishes nothing other than dislodging it from the Georgia
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`transferee court’s similar tracks and claim construction procedures. Accordingly, for these and
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`Case 6:15-cv-00907-RWS-KNM Document 102 Filed 07/08/16 Page 2 of 6 PageID #: 2789
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`other reasons set forth more fully below, SIPCO respectfully requests the Court to deny the
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`Motion to Stay.
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`I.
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`ARGUMENT
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`A.
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`Defendants’ Motion to Stay Should Be Denied
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`On July 1, 2016, the Court issued an Order transferring this case to the Northern District
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`of Georgia where an existing case (hereinafter the “Georgia case”) is pending (ECF 98).
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`Although the Georgia case was filed more than eight months before this case, both cases are on
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`similar claim construction and discovery tracks. For example, the Scheduling Order in the
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`Georgia case contains Markman claim construction procedures that are similar to those in the
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`Amended Docket Control Order (hereinafter “Amended DCO”) issued in this case. (Ex. A; ECF
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`73). Thus, honoring this Court’s claim construction procedures (as set forth in the Amended
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`DCO) while this case is being transferred to Georgia will not be wasteful of resources or
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`unhelpful to the transferee court because this Court’s claim construction procedures are largely
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`in line with the claim construction procedures already in place in the transferee court. (Ex. A,
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`ECF 73). Also, because this Court’s procedures reduce the scope of litigation to a greater extent
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`than those employed by the transferee Court, such differences will benefit the court that receives
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`this case.
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`Markman briefing in the Georgia case is complete. Under the current schedule, Markman
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`briefing in this case will be complete on September 1, 2016 (ECF 73). But the Georgia transferee
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`court has not set a Markman hearing date for the Georgia case (Ex. A, Scheduling Order; Ex. B,
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`Order amending Scheduling Order). Keeping this case on its current claim construction track will
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`provide the Georgia transferee court with an opportunity to conduct a single Markman hearing
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`and issue a single Markman order, if it so chooses. See Order Denying Aten’s Motion for Partial
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`2
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`Reconsideration of the Court’s Order Granting the Motion to Transfer Venue, Aten Int’l Co., v.
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`Uniclass Tech. Co.,, No. 2:14-CV-852-JRG (E.D. Tex. May 27, 2015), ECF No. 99 (clarifying
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`that all remaining dates in the docket control order should remain in effect until the transferee
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`court communicates that it has received the transferred case and issues and amended or revised
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`docket control order which changes or alters such deadlines) (hereinafter “Aten v Uniclass
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`Order”) (Ex. C). Accordingly, staying this case pending transfer creates unnecessary
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`inefficiencies by delaying claim construction briefing that will take place in the transferee forum
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`anyway, complicating the transferee court’s ability to synchronize both cases’ schedules.
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`Discovery is in a similar position. For example, in both cases opening expert reports are
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`due at the end of October 2016,1 and the parties are conducting discovery in parallel to conserve
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`resources and promote efficiency. Discovery requests (interrogatories, document requests,
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`requests to permit inspection of land, deposition notices and subpoenas) have been served and
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`the parties are actively engaged in overlapping2 discovery at this time. Keeping this case on its
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`current discovery track will facilitate integrating this case with the case pending in the transferee
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`court.
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`It will also prevent Plaintiffs from suffering the prejudice that is certain to occur if this
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`case is dislodged from its current track. Indeed, now that this case is being transferred to the
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`Northern District of Georgia,3 delaying claim construction or discovery risks having two related
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`cases in the same court but on different tracks, which is wasteful of resources. Traxxas LP v Feld
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`Motor Sports, Inc., No. 4:14-CV-463-ALM, 2015 WL 137915, at *3 (E.D. Tex. Jan. 9, 2015)
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`1 Opening expert reports in the Georgia case are due on “October 27, 2016 or 1 month after fact discovery closes,
`whichever is later” (Ex. B). Opening expert reports in this case are due on October 31, 2016 (ECF 73).
`2 Indeed, Defendants argued and the Court found that the cases substantially overlap (ECF 98).
`3 Plaintiffs are still considering their options in response to the Court’s July 1, 2016, Order (ECF 98). Plaintiffs’
`response to the Court’s Order, if any, is due no later than July 18, 2016.
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`3
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`(having two related cases in same court on a parallel schedules, and later allowing the court to
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`address issues of consolidation, justifies denial of stay). It also risks delaying the ultimate
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`resolution of this case, which is prejudicial to Plaintiffs and needlessly increases the expense of
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`litigation. Medien Patent Verwaltung AG v. Warner Bros. Entm’t., Inc., No.1:10-CV-04119-CM-
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`GWG, 2014 WL 1169575, at *2 (S.D.N.Y. Mar. 21, 2014) (indicating that “in addition to the
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`axiom that ‘justice delayed is justice denied,’ it is a practical reality that the longer litigation
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`lasts, the more expensive it will be”).
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`This case was on track for a trial in May of 2017 (ECF 73). The parties have put much
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`effort into claim construction and discovery matters in anticipation of that trial date. This case is
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`being transferred. It is not dismissed or stayed. Accordingly, it should proceed in accordance
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`with the Amended DCO until such time the Georgia transferee court acknowledges receipt of
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`this case and issues an amended or revised schedule. (See Ex. C, Aten v Uniclass Order).
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`B.
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`The Court should grant a one-week extension of the July 7, 2016, deadlines
`and require the parties to proceed in accordance with the Amended DCO
`until further notice from the Georgia transferee court.
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`The Amended DCO that governs this case issued on April 12, 2016 (ECF 73). The
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`Court’s Order transferring this case to the Northern District of Georgia issued on July 1, 2016
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`(ECF 98). Defendants did not articulate why they were unable to meet the July 7, 2016,
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`deadlines in the Amended DCO, or for filing a reply in support of a motion to dismiss that
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`defendant BP p.l.c. filed (ECF 87, 99). Regardless of the reasons, Plaintiffs are not unreasonable
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`and would have agreed (and remain willing to agree) to a one week extension of the July 7, 2016,
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`deadlines identified in Defendants’ Motion to Stay. But Defendants never asked. Instead they
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`immediately moved to “vacate” the pending dates in the Amended DCO, which, carries the risk
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`of driving a wedge between this case and the Georgia case.
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`Staying or vacating the deadlines in the Amended DCO is not the answer. Instead,
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`granting a one-week extension of the July 7, 2016, deadlines, should be sufficient to address
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`Defendants’ unarticulated timeline hardships. It will also keep this case on track for flexible
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`integration into the Georgia transferee Court’s existing schedule. Accordingly, for the reasons set
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`forth herein, Plaintiffs respectfully request the Court to deny Defendants’ Motion to Stay and
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`alternatively grant a one-week extension of the July 7, 2016, deadlines identified in Defendants’
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`Motion to Stay. Additionally, the July 21, 2016, deadline for responding to amended pleadings
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`should also be extended by one week to July 28, 2016 (ECF 73).
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`CONCLUSION
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`For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants’
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`Emergency Motion to Stay and grant the alternative relief requested herein.
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`Dated: July 8, 2016
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` Respectfully Submitted,
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`/s/ Paul J. Cronin by permission Andrea Fair
`Paul J. Cronin, Admitted July 16, 2012
`LEAD ATTORNEY
`(MA Bar No. 641230)
`James C. Hall, Admitted April 9, 2012
`(MA Bar No. 656019)
`NUTTER MCCLENNEN & FISH LLP
`155 Seaport Boulevard
`Boston, Massachusetts 02210
`Telephone: (617) 439-2000
`Facsimile: (617) 310-9000
`Email: pcronin@nutter.com
`Email: jhall@nutter.com
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`T. John Ward, Jr., State Bar No. 00794818
`Claire Henry, State Bar No. 24053063
`Andrea Fair, State Bar No.
`Ward, Smith & Hill, PLLC
`PO Box 1231
`Longview, Texas 75606
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`Case 6:15-cv-00907-RWS-KNM Document 102 Filed 07/08/16 Page 6 of 6 PageID #: 2793
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`Telephone: (903) 757-6400
`Facsimile: (903) 757-2323
`Email: jw@wsfirm.com
`Email: ch@wsfirm.com
`Email: andrea@wsfirm.com
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`ATTORNEYS FOR PLAINTIFFS
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was served on all counsel of
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`record by email on this 8th day of July, 2016.
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`/s/ Andrea Fair
`Andrea Fair
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`3215286
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`6
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