Case: 20-135 Document: 41 Page: 1 Filed: 07/14/2020
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`Miscellaneous Docket No. 20-135
`
`
`IN THE
`United States Court of Appeals for the Federal Circuit
`
`
`
`IN RE APPLE INC.,
`
`Petitioner.
`
`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:19-cv-00532-ADA, Hon. Alan D Albright
`
`
`APPLE INC.’S OPPOSITION TO RESPONDENT’S
`MOTION FOR LEAVE TO FILE A SUR-REPLY
`
`
`
`John M. Guaragna
`DLA PIPER
`401 Congress Avenue
`Suite 2500
`Austin, TX 78701
`
`Abigail Colella
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`Counsel for Petitioner
`
`
`
`
`
`Miscellaneous Docket No. 20-135
`
`
`IN THE
`United States Court of Appeals for the Federal Circuit
`
`
`
`IN RE APPLE INC.,
`
`Petitioner.
`
`
`
`On Petition for Writ of Mandamus to the
`United States District Court for the
`Western District of Texas
`No. 6:19-cv-00532-ADA, Hon. Alan D Albright
`
`
`APPLE INC.’S OPPOSITION TO RESPONDENT’S
`MOTION FOR LEAVE TO FILE A SUR-REPLY
`
`
`
`John M. Guaragna
`DLA PIPER
`401 Congress Avenue
`Suite 2500
`Austin, TX 78701
`
`Abigail Colella
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`Counsel for Petitioner
`
`
`
`
`
`Case: 20-135 Document: 41 Page: 2 Filed: 07/14/2020
`
`Petitioner Apple Inc. opposes the Motion for Leave to File Sur-
`
`Reply Brief filed by Respondent Uniloc 2017, LLC.
`
`A surreply is not authorized or even contemplated by the Federal
`
`Rules of Appellate Procedure or this Court’s Rules. Nothing Uniloc has
`
`said in its proposed surreply undermines the merits of Apple’s
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`mandamus petition. But neither has Uniloc offered any reason why it
`
`should be granted this extraordinary relief.
`
`Uniloc argues a surreply is warranted because Apple purportedly
`
`raised “new” arguments on reply. Dkt. 39-2 at 1-2. (Uniloc similarly
`
`asserts throughout its proposed surreply that Apple’s arguments are
`
`“waived.”). Apple disputes that these arguments are “new,” as they
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`relate directly to issues briefed and argued both in the district court and
`
`to this Court. Indeed, the “new” arguments in question are Apple’s
`
`responses to specific statements in (1) the district court’s Order, which
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`issued after the petition was filed,1 and (2) Uniloc’s opposition brief,
`
`
`1 Uniloc protests that Apple filed its mandamus petition before the
`district court’s written order issued. As Apple explained, it did so after
`waiting more than a month from the district court’s announcement of
`its decision—and after repeatedly inquiring about the status of a
`written order. See Dkt. 2 at 9-10 (“Given the rapid progression of this
`case, Apple cannot wait any longer for a written order before seeking
`
`
`1
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`
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`Case: 20-135 Document: 41 Page: 3 Filed: 07/14/2020
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`which was also filed after the Order issued, and which not only
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`defended that Order but also purported to introduce new evidence. See
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`Dkt. 37 at 7, 12. It is entirely appropriate for a party to use its reply
`
`brief to address arguments made in a response brief. See, e.g., Apple
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`Inc. v. Andrea Elecs. Corp., 949 F.3d 697, 706 (Fed. Cir. 2020). That is
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`particularly true where, as here, Apple bears the burden of proof (both
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`before this Court and on the underlying question of transfer).
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`Notably, Uniloc did not express any concern about the briefing
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`structure when it sought and received a 7-day extension to file its
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`opposition—an extension specifically requested to “allow [Uniloc] to
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`incorporate and address the District Court’s Order in its Response
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`brief.” Dkt. 12 at 2. It cannot seriously claim that a surreply is now
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`required because Apple responded to the district court’s Order, too. On
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`the contrary, every unconventional aspect of this briefing structure
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`worked entirely to Uniloc’s benefit: Uniloc, unlike Apple, had the
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`chance to address the district court’s reasoning in a full-length brief,
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`mandamus to prevent the case from moving forward in an inconvenient
`venue.”). This Court has previously denied Apple relief based on delay
`that was largely attributable to the district court’s actions. See In re
`Apple Inc., 456 F. App’x 907, 908-09 (Fed. Cir. 2012). Apple seeks to
`avoid that result here.
`
`2
`
`
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`Case: 20-135 Document: 41 Page: 4 Filed: 07/14/2020
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`and it was given an extra week to do so. Apple was afforded 3 days to
`
`address both the Order and Uniloc’s Response in a shorter, reply-length
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`filing. The proposed surreply, which stretches 3,851 words and was
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`filed 7 days after Apple’s reply, would push the balance of time and
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`words even further in Uniloc’s favor.
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`Finally, while Uniloc attempts to justify its extraordinary filing
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`based on a need to address purportedly “new” arguments, its proposed
`
`filing is a complete brief that goes well beyond those arguments and
`
`instead comprehensively addresses Apple’s reply. See, e.g., Dkt. 39-2 at
`
`13-14.
`
`Apple respectfully requests that the Court deny Uniloc’s motion.
`
`3
`
`
`
`Case: 20-135 Document: 41 Page: 5 Filed: 07/14/2020
`
`
`
`
`
`John M. Guaragna
`DLA PIPER
`401 Congress Avenue
`Suite 2500
`Austin, TX 78701
`
`Abigail Colella
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`Respectfully submitted,
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street NW
`Washington, DC 20005
`(202) 339-8400
`
`Melanie R. Hallums
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`2121 Main Street
`Wheeling, WV 26003
`
`
`Counsel for Petitioner
`
`
`
`
`4
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`
`
`Case: 20-135 Document: 41 Page: 6 Filed: 07/14/2020
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`FORM 9. Certificate of Interest
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`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
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`CERTIFICATE OF INTEREST
`
`
`Form 9 (p. 1)
`July 2020
`
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`Case Number
`Short Case Caption
`Filing Party/Entity
`
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`20-135
`
`In re Apple Inc.
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`Apple Inc.
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`Instructions: Complete each section of the form. In answering items 2 and 3, be
`specific as to which represented entities the answers apply; lack of specificity may
`result in non-compliance. Please enter only one item per box; attach
`additional pages as needed and check the relevant box. Counsel must
`immediately file an amended Certificate of Interest if information changes. Fed.
`Cir. R. 47.4(b).
`
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`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
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`07/14/2020
`Date: _________________
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`Signature:
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`/s/ Melanie L. Bostwick
`
`
`
`
`
`Name:
`
`Melanie L. Bostwick
`
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`Case: 20-135 Document: 41 Page: 7 Filed: 07/14/2020
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`FORM 9. Certificate of Interest
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`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`Provide the full names of
`all entities represented
`by undersigned counsel in
`this case.
`
`Form 9 (p. 2)
`July 2020
`
`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`Provide the full names of
`all real parties in interest
`for the entities. Do not
`list the real parties if
`they are the same as the
`entities.
`
`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`Provide the full names of
`all parent corporations
`for the entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
`
`(cid:1798) None/Not Applicable (cid:1798) None/Not Applicable (cid:1798) None/Not Applicable
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`Apple Inc.
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`Apple Inc.
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`None
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`Additional pages attached
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`Case: 20-135 Document: 41 Page: 8 Filed: 07/14/2020
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`FORM 9. Certificate of Interest
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`Form 9 (p. 3)
`July 2020
`
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`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already
`entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
` None/Not Applicable
`
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`Additional pages attached
`
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`Brian K. Erickson, Christine K. Corbett Erik R. Fuehrer, Larissa Bifano
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`DLA Piper LLP
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`Mark D. Fowler
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`Orrick, Herrington & Sutcliffe LLP
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`Michael Van Handel
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`Jeffrey T. Quilici
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`Summer Torrez
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`5. Related Cases. Provide the case titles and numbers of any case known to be
`pending in this court or any other court or agency that will directly affect or be
`directly affected by this court’s decision in the pending appeal. Do not include the
`originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
`R. 47.5(b).
` None/Not Applicable
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`Additional pages attached
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`✔
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`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
` None/Not Applicable
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`Additional pages attached
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`✔
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`Case: 20-135 Document: 41 Page: 9 Filed: 07/14/2020
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`CERTIFICATE OF SERVICE
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`I hereby certify that I electronically filed the foregoing with the
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`Clerk of the Court for the United States Court of Appeals for the
`
`Federal Circuit by using the appellate CM/ECF system on July 14,
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`2020.
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`I certify that all counsel of record in the case are registered
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`CM/ECF users and that service will be accomplished by the appellate
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`CM/ECF system.
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`A copy of the foregoing was served upon the district court judge
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`via FedEx:
`
`Hon. Alan D Albright
`United States District Court for the Western District of Texas
`800 Franklin Avenue, Room 301
`Waco, Texas 76701
`Telephone: (254) 750-1510
`
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`Counsel for Petitioner
`
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`Case: 20-135 Document: 41 Page: 10 Filed: 07/14/2020
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`CERTIFICATE OF COMPLIANCE
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`I hereby certify that this response complies with the type-volume
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`limitation of Fed. R. App. P. 27(d)(2)(A). The response is printed in
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`Century Schoolbook 14-point font, and it contains 563 words, excluding
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`the items listed in Fed. R. App. P. 27(a)(2)(B).
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`
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`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`/s/ Melanie L. Bostwick
`Melanie L. Bostwick
`Counsel for Petitioner
`
`
`
`
`
`
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