`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`Civil Action No.: 6:20-cv-1211
`
`JURY TRIAL DEMANDED
`
`PATENT CASE
`
`§
`§
`
`§§
`
`§
`§
`
`§§
`
`§
`
`OCEAN SEMICONDUCTOR LLC,
`
`Plaintiff
`
`v.
`
`NVIDIA CORPORATION,
`
`Defendant
`
`______________________________________________________________________________
`
`NVIDIA CORPORATION’S RESPONSE IN OPPOSITION TO PLAINTIFF OCEAN
`SEMICONDUCTOR LLC’S MOTION FOR LEAVE TO FILE SUR-REPLY IN
`OPPOSITION TO DEFENDANT NVIDIA CORPORATION’S MOTION TO
`DISMISS FOR FAILURE TO STATE A CLAIM
`
`______________________________________________________________________________
`
`
`
`Case 6:20-cv-01211-ADA Document 20 Filed 04/16/21 Page 2 of 5
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`Plaintiff Ocean Semiconductor LLC’s Motion for Leave to File Sur-Reply in
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`Opposition to Defendant NVIDIA Corporation’s Motion to Dismiss for Failure to State
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`a Claim fails to show why additional pages are warranted let alone why it should be
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`permitted to circumvent the local rules to expand the briefing on a straightforward
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`motion to dismiss. Plaintiff had every opportunity to make its arguments in the
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`Opposition, but chose not to. Its motion should be denied.
`
`A party who seeks leave to file a sur-reply must show “exceptional or
`
`extraordinary circumstances” or “good cause.” Silo Rest. Inc. v. Allied Prop. & Cas.
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`Ins. Co., 420 F. Supp. 3d 562, 571 (W.D. Tex. 2019). Filing sur-replies “‘[is] heavily
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`disfavored’” and “it is within the sound discretion of the courts to grant or deny
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`leave to file such additional briefing.” Id. at 571 (quoting Warrior Energy Servs.
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`Corp. v. ATP Titan M/V, 551 F. App'x 749, 751 n.2 (5th Cir. 2014) (per curiam)).
`
`Plaintiff’s Motion
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`fails to show any “exceptional or extraordinary
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`circumstances,” “good cause,” or even that NVIDIA’s Reply introduced any new
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`arguments, evidence, or law. In fact, the Motion does not provide any support for its
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`request beyond the bare assertion that, “In its Reply, NVIDIA asserts new arguments
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`and cites new legal authority not presented in its Motion that present an inaccurate
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`description of the Complaint and the applicable cases interpreting the pleading
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`standard for direct infringement.” Motion at 1. But Plaintiff fails to offer any
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`supporting citations or analysis to support this contention. Id. Neither does it
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`explain what “new arguments” were allegedly raised. Id.
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`The only case cited in NVIDIA’s Reply not cited in the Motion to Dismiss was
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`1
`
`
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`Case 6:20-cv-01211-ADA Document 20 Filed 04/16/21 Page 3 of 5
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`Anticancer, Inc. v. Pfizer, Inc., Case No. 11-CV-107-JLS, 2012 WL 13180611 (C.D.
`
`Cal. June 1, 2012). NVIDIA cited this case for the uncontroversial proposition that a
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`§ 271(g) claim can be dismissed at the pleading stage—an argument made in
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`NVIDIA’s Motion to Dismiss. Tellingly, Plaintiff’s proposed sur-reply only mentions
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`this case in a passing a footnote. Sur-Reply at 2 n.3.
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`Plaintiff’s attempt to have the last word is not permitted by the local rules. See
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`e.g., Lacher v. West, 147 F. Supp. 2d 538, 539 (N.D. Tex. 2001) (“Surreplies and any
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`other filing that serves the purpose or has the effect of a surreply, are highly
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`disfavored, as they usually are a strategic effort by the nonmovant to have the last
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`word on a matter.”). The proposed sur-reply only repeats arguments raised in
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`Plaintiff’s Opposition—not exceptional circumstances or novel issues requiring a
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`deviation from the local rules. Plaintiff’s Motion should be denied. See, e.g.,Williams
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`v. Aviall Servs. Inc., 76 F. App’x 534, 535 (5th Cir. 2003) (affirming discretionary
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`denial of proposed sur-reply that included no new arguments or evidence).
`
`Dated: April 16, 2021
`
`Respectfully submitted,
`
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`
`/s/ Scott L. Cole___________________________
`Sean S. Pak
`seanpak@quinnemanuel.com
`admitted pro hac vice
`California Bar No. 219032
`Andrew M. Holmes
`
`2
`
`
`
`Case 6:20-cv-01211-ADA Document 20 Filed 04/16/21 Page 4 of 5
`
`drewholmes@quinnemanuel.com
`admitted pro hac vice
`California Bar No. 260475
`50 California Street
`22nd Floor
`San Francisco, CA 94111
`Phone: (415) 875-6600
`Fax: (415) 875-6700
`
`Scott L. Cole
`scottcole@quinnemanuel.com
`Texas Bar No. 00790481
`201 West 5th Street
`11th Floor
`Austin, TX 77002
`Phone: (737) 667-6104
`Fax: (737) 667-6110
`
`ATTORNEYS FOR DEFENDANT NVIDIA
`CORP.
`
`3
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`
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`Case 6:20-cv-01211-ADA Document 20 Filed 04/16/21 Page 5 of 5
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the above and
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`foregoing document has been served on April 16, 2021, on all counsel of record via the
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`Court’s ECF system.
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`/s/ Scott L. Cole___________
`Scott L. Cole
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`4
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`
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