`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`SIPCO, LLC, and IP CO, LLC
`(d/b/a INTUS IQ),
`
`
`
` v.
`
`EMERSON ELECTRIC CO., EMERSON
`PROCESS MANAGEMENT LLLP, FISHER-
`ROSEMOUNT SYSTEMS, INC.,
`ROSEMOUNT INC., BP, p.l.c., BP
`AMERICA, INC., and BP AMERICA
`PRODUCTION COMPANY,
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`
`
`
` Civil Action No. 6:15-cv-907
`
`
`
`
`
`PLAINTIFFS’ SUR-REPLY IN SUPPORT OF ITS OPPOSITION TO DEFENDANTS’
`MOTION TO STAY THIS ACTION PENDING DISMISSAL OR TRANSFER
`
`
`SIPCO does not dispute that its opposition to the motion to stay is based, in part, on the
`
`
`
`merits of its opposition to the motion to dismiss or transfer. This makes sense because, if the
`
`Court ultimately determines that this case should remain in this judicial district, then no time will
`
`have been wasted by the parties.
`
`SIPCO’s opposition is also based on facts (cited by SIPCO in its opposition) that directly
`
`bear on whether a genuine necessity for a stay exists. See Coastal (Bermuda)Ltd. v. E.W. Saybolt
`
`& Co., 761 F.2d 198, 203 n.6 (5th Cir. 1985). For example, because this Court controls the
`
`timeframe in which Emerson’s motion to dismiss or transfer will be decided, no basis for a stay
`
`exists. See Lone Star Steakhouse & Saloon, Inc. v. Adams, 169 F. Supp. 2d 1197, 1208 (D. Kan.
`
`2001). Additionally, even if this Court grants Emerson’s motion to dismiss or transfer (which it
`
`respectfully should not do), the “work . . . do[ne] here” can be used in the Georgia action. See
`
`Hr’g Tr., Datamize v. Fidelity Brokerage Servs., LLC, No. 2:03-cv-321-DF (E.D. Tex. Mar. 11,
`
`
`
`
`
`Case 6:15-cv-00907-RWS-KNM Document 41 Filed 02/05/16 Page 2 of 3 PageID #: 887
`
`
`2004), ECF No. 87. It is beyond dispute that the parties will have to request and produce
`
`evidence, argue about claim construction, and make their respective infringement and invalidity
`
`cases for each and every asserted claim from each of the collective thirteen patents. Thus, none
`
`of the work on the eleven patents-in-suit here will go to waste. For whatever reason, Emerson
`
`ignored these arguments in its Reply.
`
`Instead, Emerson interjects new issues that have no bearing on whether there is a genuine
`
`necessity for a stay. For example, Emerson raises General Order No. 13-20, which states that
`
`absent court-approved deviation from this general rule, claims will eventually be limited to a
`
`total of 16 claims from the patents-in-suit. But this rule has nothing to do with the motion to
`
`dismiss or transfer or the requested stay.
`
`Emerson also interjects the argument that SIPCO “will obviously limit the number of
`
`patents and claims asserted at some future point” and further states that Emerson would like to
`
`avoid “plain wasteful” discovery on the thirteen collective patents. (Dkt. 37 at 3.) Yet,
`
`proceeding in this judicial district without delay is the fastest way to reach the point where a
`
`“narrowing” of the issues on the eleven patents-in-suit will actually take place. Accordingly, no
`
`reason exists to delay or stay this case.
`
`For the foregoing reasons, SIPCO respectfully requests that this Court deny Emerson’s
`
`Motion to Stay.
`
`
`
`
`
`2
`
`
`
`Case 6:15-cv-00907-RWS-KNM Document 41 Filed 02/05/16 Page 3 of 3 PageID #: 888
`
`
`Dated: February 5, 2016
`
`
`
`
`
`Respectfully Submitted,
`
`/s/ Paul J. Cronin (by permission Claire A. Henry)
`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
`
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`Email: jw@wsfirm.com
`Claire Abernathy Henry
`Texas State Bar No. 24053063
`Email: claire@wsfirm.com
`WARD, SMITH & HILL, PLLC
`P.O. Box 1231
`1127 Judson Road, Ste. 220
`Longview, Texas 75606-1231
`Telephone: (903) 757-6400
`Facsimile: (903) 757-2323
`
`ATTORNEYS FOR PLAINTIFFS
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing document was filed electronically in
`
`compliance with Local Rule CV-5(a). Therefore, this document was served on all counsel who
`
`are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed.
`
`R. Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have
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`consented to electronic service were served with a true and correct copy of the foregoing by
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`email on this the 5th day of February, 2016.
`
`
`
`
`
`/s/ Claire Abernathy Henry
`
`
`
`
`
`3
`
`
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