Case 1:19-cv-11586-FDS Document 426 Filed 10/06/23 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`PHILIPS NORTH AMERICA LLC,
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`Plaintiff,
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`v.
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`FITBIT LLC,
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`Defendant.
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`Civil Action No. 1:19-cv-11586-FDS
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`DEFENDANT FITBIT LLC’S SUR-REPLY IN OPPOSITION
`TO PHILIPS NORTH AMERICA LLC’S MOTION TO DISMISS
`AND TO ENTER FINAL JUDGMENT
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`Only one court can have jurisdiction over a case at any given time. See Griggs v. Provident
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`Consumer Discount Co., 459 U.S. 56, 58 (1982). That well-established rule “derives from the
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`notion that shared jurisdiction almost always portends a potential for conflict and confusion.”
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`United States v. Brook, 145 F.3d 446, 455 (1st Cir. 1998). This case is a textbook example why
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`that rule must be followed, with the parties now engaged in jurisdictional briefing in both this
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`District Court and in the Federal Circuit because Philips filed its appeal before the entry of a final
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`judgment.
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`Ironically, Philips’ reply brief cites Griggs for the proposition that a premature notice of
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`appeal is a “nullity” and the lower court retains its jurisdiction. See Dkt. 424 at 2 (citing Griggs,
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`459 U.S. at 61). But Fitbit moved to dismiss Philips’ appeal on October 2, 2023, and Philips
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`opposes that motion. See Defendant-Appellee Fitbit LLC’s Motion to Dismiss for Lack of
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`Jurisdiction, Philips N. Am., LLC v. Fitbit LLC, Appeal No. 23-2286 (Fed. Cir. Oct. 2, 2023), ECF
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`No. 13. Philips wants its premature appeal to proceed under the Federal Circuit’s jurisdiction,
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`Case 1:19-cv-11586-FDS Document 426 Filed 10/06/23 Page 2 of 5
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`while at the same time, Philips wants this Court to act under its own jurisdiction. Philips’ positions
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`are fundamentally at odds.
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`Philips’ excuse for refusing to dismiss its appeal is Federal Rule of Appellate
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`Procedure 4(a)(2), which is a rule “intended to protect the unskilled litigant who files a notice of
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`appeal from a decision that he reasonably but mistakenly believes to be a final judgment, while
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`failing to file a notice of appeal from the actual final judgment.” FirstTier Mortg. Co. v. Investors
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`Mortg. Ins. Co., 498 U.S. 269, 276 (1991). But Philips cannot point to any decision in this case
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`that it reasonably believed to be a final judgment. Thus Rule 4(a)(2) does not apply, and none of
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`Philips’ case law citations suggest otherwise.
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`Philips cites cases with drastically different facts from this case. For example, in PODS,
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`Inc. v. Porta Stor, Inc., the Federal Circuit applied Rule 4(a)(2) because the district court purported
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`to enter a “formal ‘Judgment in a Civil Case’ that appeared to be appealable.” 484 F.3d 1359,
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`1365 (Fed. Cir. 2007). Here, by contrast, this Court has not entered any formal judgment, which
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`is—of course—the very reason that Philips filed the instant motion for entry of judgment.
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`In two of Philips’ cited cases, the Federal Circuit applied Rule 4(a)(2) to protect a litigant
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`that mistakenly filed a notice of appeal immediately after an order that appeared to be final, but
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`shortly before the district court formally entered a final appealable order. See ABC Corp. I v.
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`P’ship & Unincorporated Ass’ns Identified on Schedule “A”, 52 F.4th 934, 940 (Fed. Cir. 2022)
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`(preliminary injunction motion granted on October 6, notice of appeal filed on October 8,
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`preliminary injunction order formally entered on October 13); J.G. Peta, Inc. v. Club Protector,
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`Inc., 65 F. App’x 724, 725 (Fed. Cir. 2003) (notice of appeal filed after grant of summary judgment
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`motion, but two days before formal entry of judgment by court clerk). The situation here is not at
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`all like either of those cases because Philips cannot point to a non-final order that was immediately
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`Case 1:19-cv-11586-FDS Document 426 Filed 10/06/23 Page 3 of 5
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`followed by a final appealable order from this Court. Rather, Philips argues that all claims have
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`been resolved based on three separate orders issued by this Court over a two-year span—claim
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`construction in June 2021, summary judgment in September 2022, and reconsideration denial in
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`July 2023—combined with Federal Circuit affirmance of a Patent Trial and Appeal Board
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`decision.
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`Philips also cites Peralta v. Cal. Franchise Tax Bd., 673 F. App’x 975 (Fed. Cir. 2016).
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`There, the Federal Circuit applied Rule 4(a)(2) to assert jurisdiction over a pro se litigant’s appeal
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`after the district court dismissed her complaint without prejudice to amend, and then later entered
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`final judgment. Id. at 977. Ms. Peralta was the unskilled litigant that Rule 4(a)(2) was intended
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`to protect. Philips is not.
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`Finally, Philips cites Pause Tech. LLC v. TiVo Inc., 401 F.3d 1290 (Fed. Cir. 2005), with
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`a parenthetical noting that the Federal Circuit “grant[ed] Appellant leave to seek remedial action
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`with the District Court to obtain final judgment.” Dkt. 424 at 2. Philips neglects to mention,
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`however, that in Pause Tech., the Federal Circuit dismissed the appeal before granting the appellee
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`leave to seek remedial action in the district court. See id. at 1295. Here, by contrast, Philips refuses
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`to agree to dismissal of its appeal, yet seeks remedial action in this Court anyway.
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` In short, until Philips’ improper appeal is dismissed, this Court lacks jurisdiction over this
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`case. Thus, Fitbit opposes the instant motion.
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`Case 1:19-cv-11586-FDS Document 426 Filed 10/06/23 Page 4 of 5
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`Dated: October 6, 2023
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`By:
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`/s/ Gregory F. Corbett
`David J. Shaw (pro hac vice)
`dshaw@desmaraisllp.com
`DESMARAIS LLP
`1899 Pennsylvania Ave., NW, Suite 400
`Washington, D.C. 20006
`Telephone: (202) 451-4900
`Facsimile: (202) 451-4901
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`Leslie M. Spencer (pro hac vice)
`lspencer@desmaraisllp.com
`Karim Z. Oussayef (pro hac vice)
`koussayef@desmaraisllp.com
`Brian D. Matty (pro hac vice)
`bmatty@desmaraisllp.com
`DESMARAIS LLP
`230 Park Avenue
`New York, NY 10169
`Telephone: (212) 351-3400
`Facsimile: (212) 351-3401
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`Gregory F. Corbett (BBO #646394)
`gcorbett@wolfgreenfield.com
`Elizabeth A. DiMarco (BBO #681921)
`edimarco@wolfgreenfield.com
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02110
`Telephone: (617) 646-8000
`Facsimile: (617) 646-8646
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`Attorneys for Defendant Fitbit LLC
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`Case 1:19-cv-11586-FDS Document 426 Filed 10/06/23 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I certify that this document is being filed through the Court’s electronic filing system,
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`which serves counsel for other parties who are registered participants as identified on the Notice
`of Electronic Filing (NEF). Any counsel for other parties who are not registered participants are
`being served by first class mail on the date of the electronic filing.
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`/s/ Gregory F. Corbett
`Gregory F. Corbett
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