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`Case 1:19-cv-11586-IT Document 37 Filed 01/14/20 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`v.
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`FITBIT, INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 1:19-cv-11586-IT
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`DEFENDANT’S MOTION FOR LEAVE TO FILE A REPLY BRIEF IN SUPPORT OF
`ITS RULE 12(b)(6) MOTION TO DISMISS THE AMENDED COMPLAINT
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`COMES NOW Defendant Fitbit, Inc. (“Fitbit” or “Defendant”) pursuant to Local Rule
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`7.1(b)(3), and respectfully request that the Court grant Defendant leave to file the attached
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`proposed page reply brief in support of its Rule 12(b)(6) Motion to Dismiss the Amended
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`Complaint (attached hereto as Exhibit A).
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`In support hereof, Fitbit states that Plaintiff’s responsive filings contained in ECF 36
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`contain new issues, arguments, and factual assertions which require response by Fitbit herein. In
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`particular, the proposed reply brief, attached, addresses, among other issues:
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`(i) the opposition’s mischaracterization of the applicable legal standards relevant
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`to Defendant’s Motion to Dismiss;
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`(ii) the opposition’s almost exclusive reliance on conclusory allegations in the
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`amended complaint, to the exclusion of the text of the patent claims or specifications;
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`(iii) the opposition’s almost exclusive reliance on allegations in the amended
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`complaint that contradict the clear language of the patent claims and admission made in
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`the specifications;
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`(iv) why cases cited by Plaintiff are readily distinguishable; and
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`Case 1:19-cv-11586-IT Document 37 Filed 01/14/20 Page 2 of 4
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`(v) misstatements in the opposition concerning facts alleged in the amended
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`complaint.
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`A reply is appropriate to address the factual and legal arguments raised in Plaintiff’s
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`opposition brief, and will materially assist the Court in addressing the issues raised in the Motion
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`to Dismiss. See Sunrise Techs., Inc. v. SELC Ir., Ltd., 2016 U.S. Dist. LEXIS 83978 at *24 (D.
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`Mass. Jun. 14, 2016); Napert v. Gov’t Employees Ins. Co., 2013 WL 3989645, at *2 n.4 (D.
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`Mass. Aug. 1, 2013).
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`The Court has not yet scheduled a date to hear the parties’ oral argument in Defendant’s
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`Motion to Dismiss and any such date need not be impacted by the allowance of this motion. No
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`party will be prejudiced by the relief requested.
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`REQUEST FOR ORAL ARGUMENT
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`In accordance with Local Rule 7.l (d), Defendant respectfully requests oral argument on
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`this motion, as it believes that oral argument may assist the Court in its consideration of the
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`merits hereof.
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`LOCAL RULE 7.1(a)(2) CERTIFICATE
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`The undersigned counsel certify that they have conferred with counsel for the Plaintiff
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`who informed the undersigned that the Plaintiff Philips North America LLC did not consent to
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`the relief requested in this motion.
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`Case 1:19-cv-11586-IT Document 37 Filed 01/14/20 Page 3 of 4
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`Dated: January 14, 2020
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`FITBIT, INC.
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`By Its Attorneys,
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`/s/ Yar R. Chaikovsky
`Yar R. Chaikovsky
`yarchaikovsky@paulhastings.com
`Dave Beckwith
`davidbeckwith@paulhastings.com
`David Okano
`davidokano@paulhastings.com
`Radhesh Devendran
`radheshdevendran@paulhastings.com
`Berkeley Fife
`berkeleyfife@paulhastings.com
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`PAUL HASTINGS LLP
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone:
`(650) 320-1800
`Facsimile:
`(650) 320-1900
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`Jennifer B. Furey (BBO # 634174)
`Andrew T. O’Connor (BBO # 664811)
`GOULSTON & STORRS PC
`400 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 482-1776
`Facsimile: (617) 574-4112
`E-mail jfurey@goulstonstorrs.com
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`aoconnor@goulstonstorrs.com
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`Case 1:19-cv-11586-IT Document 37 Filed 01/14/20 Page 4 of 4
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`CERTIFICATE OF SERVICE
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`I certify that a true copy of the above document was served on the attorney of record for
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`each party via the Court’s CM/ECF system, which will send notification of this filing (NEF) to
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`all registered participants, and paper copies will be sent to those indicated as nonregistered
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`participants.
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`Dated: January 14, 2020
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`By: /s/ Yar R. Chaikovsky
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`Yar R. Chaikovsky (Pro Hac Vice)
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