Case 6:17-cv-00146-KNM Document 4 Filed 03/08/17 Page 1 of 6 PageID #: 107
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`
`Plaintiff,
`
`v.
`HTC CORPORATION, ET AL.,
`Defendants.
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`
`Plaintiff,
`
`v.
`ZTE CORPORATION, ET AL.,
`Defendants.
`
`CELLULAR COMMUNICATIONS
`EQUIPMENT LLC,
`
`v.
`APPLE INC., ET AL.,
`
`Plaintiff,
`
`Defendants.
`
`Civil Action No. 6:16-cv-475-RWS-KNM
`
`JURY TRIAL DEMANDED
`
`Civil Action No. 6:16-cv-476-RWS-KNM
`
`JURY TRIAL DEMANDED
`
`Civil Action No. 6:14-cv-251-KNM
`
`JURY TRIAL DEMANDED
`
`CELLULAR COMMUNICATION EQUIPMENT LLC’S
`UNOPPOSED MOTION TO CONSOLIDATE CASES FOR PRETRIAL
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`

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`Case 6:17-cv-00146-KNM Document 4 Filed 03/08/17 Page 2 of 6 PageID #: 108
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`Cellular Communications Equipment LLC (“CCE”) respectfully moves the Court to open
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`a new civil action for proceedings against Apple involving U.S. Patent No. 7,941,174 that were
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`severed from CCE v. Apple Inc., et al., No. 6:14-cv-251-KNM (the “Apple ’174 proceedings”)
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`and consolidate that newly-created action with CCE v. HTC Corp., et al., No. 6:16-cv-475-RWS-
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`KNM (the “HTC case”), CCE v. ZTE Corp., et al., No. 6:16-cv-476-RWS-KNM (the “ZTE
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`case”) up to (but not including) final pretrial conferences, and to set a scheduling conference for
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`the newly-consolidated action.
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`I. BACKGROUND
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`CCE filed its original complaints in the HTC and ZTE cases on May 31, 2016, alleging
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`that HTC, ZTE, AT&T, Verizon, Sprint, and T-Mobile infringe U.S. Patent Nos. 8,055,820 (the
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`“’820 patent”); 8,385,966 (the “’966 patent”); and 9,037,129 (the “’129 patent”). CCE’s
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`complaints in the HTC and ZTE cases also allege that HTC, ZTE, AT&T, and T-Mobile infringe
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`U.S. Patent No. 7,941,174 (the “’174 patent”). Defendants in those cases have answered CCE’s
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`complaints, and CCE filed a Notice of Readiness for Scheduling Conference on October 25,
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`2016.1 CCE served its Disclosure of Asserted Claims and Infringement Contentions in the HTC
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`and ZTE cases on January 20, 2017.
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`CCE asserted the ’174 patent against Apple on April 7, 2014, when it filed its original
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`complaint in CCE v. Apple Inc., et al., No. 6:14-cv-251-KNM. On September 22, 2015, CCE
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`and all defendants in the then-consolidated lead case (6:13-cv-507) sought to stay all claims and
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`issues pertaining to the ’174 patent pending Inter Partes Review. The Court granted the stay and
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`ordered that “all claims and issues pertaining to U.S. Patent No. 7,941,174 are stayed.”2 The
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`1 HTC case (No. 6:16-cv-475), ECF 61; ZTE case (No. 6:16-cv-476), ECF 53.
`2 No. 6:13-cv-507, ECF 470.
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`

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`Case 6:17-cv-00146-KNM Document 4 Filed 03/08/17 Page 3 of 6 PageID #: 109
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`PTAB subsequently issued a final written decision holding that the Petitioner had not shown that
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`claims 1, 6, 9, 14, 18, and 19 of the ’174 patent were unpatentable.3
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`On August 31, 2016 CCE filed a motion in CCE v. Apple, No. 6:14-cv-251-KNM, asking
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`the Court to sever claims regarding the ’174 patent into a newly-created action and set the new
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`case for scheduling conference at the same time as the HTC case and ZTE case.4 At the final
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`pretrial conference in CCE v. Apple, No. 6:14-cv-251-KNM, the Court granted CCE’s motion to
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`sever the ’174 patent and ordered CCE and Apple to continue meeting and conferring about how
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`to move claims regarding the ’174 patent forward.5 CCE and Apple have since met and
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`conferred and have agreed to consolidate the Apple ’174 proceedings with the HTC and ZTE
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`cases for pretrial purposes only, subject to conditions set forth in a stipulation between CCE and
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`Apple to avoid duplicative discovery. A new action for the severed Apple ’174 proceedings has
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`not yet been opened for that purpose.
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`II.
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`ARGUMENT
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`CCE requests that the Court open a new case for the Apple ’174 proceedings. After a
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`new case for the Apple ’174 proceedings is opened,6 it should be consolidated with the HTC and
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`ZTE cases for pretrial purposes only. Consolidation is appropriate where two actions “involve a
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`common question of law or fact.” FED. R. CIV. P. 42(a). Consolidation under Rule 42 is left to
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`the Court’s discretion. In re EMC Corp., 677 F.3d 1351, 1360 (Fed. Cir. 2012); see also York v.
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`Union Pac. R.R. Co., No. 9:07-cv-169, 2007 U.S. Dist. LEXIS 97992, at *3 (E.D. Tex. Nov. 19,
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`2007) (“Cases may be consolidated in the Court’s discretion to expedite proceedings or to
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`3 Verizon and Sprint are not accused on the ‘174 Patent for any Apple, HTC, or ZTE products.
`4 No. 6:14-cv-251, ECF 257.
`5 CCE v. Apple, No. 6:14-cv-251, Final Pretrial Hearing (9/1/2016) Tr., at 9:18-25.
`6 CCE does not seek to lift the stay of claims as to the relevant Carrier Defendants, AT&T and T-
`Mobile, in the newly-created action for the Apple ’174 proceedings.
`2
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`

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`Case 6:17-cv-00146-KNM Document 4 Filed 03/08/17 Page 4 of 6 PageID #: 110
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`eliminate unnecessary repetition and confusion.”). The following factors are considered when
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`determining whether consolidation is appropriate: “whether (1) the actions are pending before
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`the same court; (2) there are common parties; (3) there are common questions of law or fact; (4)
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`there is a risk of prejudice or confusion if the cases are consolidated and if so, whether the risk is
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`outweighed by the risk of inconsistent adjudications of factual and legal issues; (5) consolidation
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`will conserve judicial resources and reduce the time and cost of handling the cases separately;
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`and (6) the cases are at different stages.” U.S. v. Homward Residential, Inc., No. 4:12-cv-461,
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`2016 U.S. Dist. LEXIS 24300, at *6 (E.D. Tex. Feb. 29, 2016). Each of these factors favors
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`consolidation.
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`Factors 1-3 favor consolidation. The HTC case, ZTE case, and Apple ’174 proceedings are
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`each pending in Tyler and assigned, or referred, to Judge Mitchell; involve CCE and common
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`network operator/carrier defendants; and share common questions of law and fact related to, for
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`example, the scope, infringement, and validity of the ’174 patent.
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`Factors 4 and 5 also favor consolidation. There is no risk of prejudice or confusion if the
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`HTC case, ZTE case, and Apple ’174 proceedings are consolidated for pretrial, and consolidation
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`will conserve judicial resources and reduce the time and cost of handling the cases separately.
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`For example, consolidation will reduce the number of hearings required to resolve claim
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`construction issues pertaining to, and dispositive motions concerning, the validity of the ’174
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`patent’s claims. Factor 6 also favors consolidation. There is no framework in place for how the
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`parties will litigate their claims related to the ’174 patent (no scheduling conference has been
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`set), and the parties have undertaken little, if any, discovery specific to the ’174 patent.
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`3
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`

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`Case 6:17-cv-00146-KNM Document 4 Filed 03/08/17 Page 5 of 6 PageID #: 111
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`III.
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`CONCLUSION
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`Consolidation will prevent wasteful and duplicative efforts in litigating identical issues of
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`law and fact. For the reasons discussed above, CCE asks that the Court open a new case for the
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`Apple ’174 proceedings, consolidate the new case with the HTC and ZTE cases for pretrial
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`purposes only, and set a scheduling conference for the newly-consolidated action.
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`Dated: February 24, 2017
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`Respectfully submitted,
`
`/s/ Ed Nelson III
`Ed Nelson III
`ed@nelbum.com
`Texas State Bar No. 00797142
`Ryan P. Griffin
`ryan@nelbum.com
`Texas State Bar No. 24053687
`Thomas C. Cecil
`tom@nelbum.com
`Texas State Bar No. 24069489
`Nelson Bumgardner PC
`3131 West 7th Street, Suite 300
`Fort Worth, Texas 76107
`Phone: (817) 377-9111
`Fax: (817) 377-3485
`
`Bradley W. Caldwell
`Texas Bar No. 24040630
`bcaldwell@caldwellcc.com
`Jason D. Cassady
`Texas Bar No. 24045625
`jcassady@caldwellcc.com
`John Austin Curry
`Texas Bar No. 24059636
`acurry@caldwellcc.com
`Caldwell Cassady & Curry
`2101 Cedar Springs Road, Suite 1000
`Dallas, TX 75201
`Phone: (214) 888-4848
`Fax: (214) 888-4849
`
`T. John Ward, Jr.
`Texas State Bar No. 00794818
`J. Wesley Hill
`
`4
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`Case 6:17-cv-00146-KNM Document 4 Filed 03/08/17 Page 6 of 6 PageID #: 112
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`Texas State Bar No. 24032294
`Claire Abernathy Henry
`Texas State Bar No. 24053063
`Ward, Smith, & Hill PLLC
`P.O. Box 1231
`1127 Judson Rd. Ste. 220
`Longview, Texas 75606-1231
`(903) 757-6400
`jw@jwfirm.com
`wh@wsfirm.com
`claire@wsfirm.com
`
`ATTORNEYS FOR CELLULAR
`COMMUNICATIONS EQUIPMENT LLC
`
`CERTIFICATE OF CONFERENCE
`
`I hereby certify that I have complied with the meet and confer requirement in Local Rule CV-
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`7(h) and this motion is unopposed.
`
`/s/ Ed Nelson III
`Ed Nelson III
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing was served on all parties of record
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`on February 24, 2017 via the Court’s CM/ECF system.
`
`/s/ Ed Nelson III
`Ed Nelson III
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`5
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