`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`Plaintiff,
`
`Civil Action No. 6:20-CV-00646-ADA
`
`
`
`Defendant.
`
`MAXELL, LTD.,
`
`v.
`
`APPLE INC.,
`
`
`
`NON-OPPOSITION TO APPLE’S MOTION TO STAY ACTION PURSUANT TO 28
`U.S.C. § 1659 PENDING PARALLEL ITC ACTION
`
`Plaintiff Maxell, Ltd. (“Maxell”) agrees this action should be stayed, but the parties
`
`disagree on the form of the Proposed Order.
`
`Apple's form of order contains the following bolded and italicized surplus language:
`
`IT IS HEREBY ORDERED that this action is hereby stayed and administratively closed
`until the 337-TA-1215 Investigation becomes final and is no longer subject to judicial
`review, including all appeals from the ITC’s determination.
`
`Apple's Proposed Order attached to its Motion to Stay (emphasis added). Apple's language does
`
`not appear in the statute, which provides in relevant part:
`
`
`
`
`
`[the] district court shall stay, until the determination of the Commission becomes final,
`proceedings in the civil action with respect to any claim that involves the same issues
`involved in the proceeding before the Commission. . . .
`
`28 U.S.C. § 1659. Maxell submits that its attached Proposed Order, which omits the surplus
`
`language requested by Apple, tracks 28 U.S.C. § 1659 and is consistent with applicable case law.
`
`Apple's surplus language could cause confusion at a later time.
`
`
`
`1
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`
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`Case 6:20-cv-00646-ADA Document 11 Filed 09/22/20 Page 2 of 4
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`
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`Also, contrary to Apple's motion, Maxell never argued that the current state of the law
`
`dictates that the duration of the stay should not include appeals of the International Trade
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`Commission action. Indeed, the Federal Circuit has interpreted 28 U.S.C. § 1659 to require a stay
`
`until the determination of the Commission becomes final, and it has interpreted that statute to
`
`require a stay through any appeal in the action. See In re Princo Corp., 478 F.3d 1345, 1355 (Fed.
`
`Cir. 2007). Rather, Maxell objected to the language in Apple’s Proposed Order that went beyond
`
`the language set forth in 28 U.S.C. § 1659. Maxell communicated this to Apple by returning a
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`redline version of its Proposed Order, but Apple refused to accept Maxell’s redlines.
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`Additionally, two of the cases Apple cites from this District staying cases pursuant to 28
`
`U.S.C. § 1659 track language as proposed by Maxell, and do not include Apple’s surplus language.
`
`See Globalfoundries U.S. Inc. v. Avnet, Inc., No. 6:19-cv-500, Order Granting Motion to Stay Case
`
`(W.D. Tex. Oct. 16, 2019); Globalfoundries U.S. Inc. v. Taiwan Semiconductor Mfg. Co., No.
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`6:19-cv-499, Order Granting Motion to Stay Case (W.D. Tex. Oct. 16, 2019).
`
`Therefore, Maxell respectfully requests that the Court enter the attached Proposed Order
`
`rather than the Order proposed by Apple in its Motion.
`
`
`
`Dated: September 22, 2020
`
`By:
`
`/s/ Robert S. Harrell
`Robert S. Harrell
`MAYER BROWN LLP
`700 Louisiana Street, Suite 3400
`Houston, TX 77002-2730
`Telephone: (713) 238-3000
`Facsimile: (903) 792-8233
`rharrell@mayerbrown.com
`
`Jamie B. Beaber
`Pro Hac Vice Application to be Filed
`MAYER BROWN LLP
`1999 K Street, NW
`Washington, DC 20006
`
`
`
`2
`
`
`
`Case 6:20-cv-00646-ADA Document 11 Filed 09/22/20 Page 3 of 4
`
`Telephone: (202) 263-3000
`Facsimile: (202) 263-3300
`jbeaber@mayerbrown.com
`
`Robert G. Pluta
`Pro Hac Vice Application to be Filed
`MAYER BROWN LLP
`71 S. Wacker Drive
`Chicago, IL 60606
`(312) 782-0600
`rpluta@mayerbrown.com
`
`Counsel for Plaintiff Maxell, Ltd.
`
`
`
`
`3
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`
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`Case 6:20-cv-00646-ADA Document 11 Filed 09/22/20 Page 4 of 4
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 22nd day of September, 2020, I electronically transmitted
`
`the foregoing NON-OPPOSITION TO APPLE’S MOTION TO STAY ACTION
`
`PURSUANT TO 28 U.S.C. § 1659 PENDING PARALLEL ITC ACTION to the Clerk’s
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`Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to
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`the attorneys who are registered with the Court’s electronic filing system.
`
`
`
`
`
`
`/s/ Robert S. Harrell
` Robert S. Harrell
`
`4
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`
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