`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`FINTIV, INC.,
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`v.
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`APPLE INC.,
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`Plaintiff,
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`Defendant.
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`Civil Action No. 1:19-cv-01238-ADA
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`DEFENDANT’S UNOPPOSED MOTION FOR LEAVE TO FILE RESPONSE TO
`FINTIV’S SUR-REPLY TO MOTION TO EXCLUDE THE OPINIONS OF FINTIV’S
`DAMAGES EXPERT ROY WEINSTEIN
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`Pursuant to Local Rule 7(e)(1), Apple Inc. seeks leave to file a response to Fintiv’s sur-
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`reply filed in opposition to Apple’s Motion to Exclude the Opinions of Fintiv’s Damages Expert
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`Roy Weinstein. ECF No. 373. In exchange for Apple’s non-opposition to its motion for leave to
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`file a sur-reply, Fintiv agreed not to oppose Apple’s motion for leave to file a response.
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`Good cause exists to grant Apple’s motion. Fintiv sought leave to file a sur-reply to
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`address Apple’s reply arguments responding to the Eastern District of Texas Wapp Tech case
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`that Fintiv had addressed in its opposition. ECF No. 373, citing Wapp Tech Ltd. Partnership v.
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`Micro Focus Int’l, PLC, No. 4:18-cv-00469-ALM (E.D. Tex. 2020). However, Fintiv’s sur-
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`reply now raises multiple new arguments about what purportedly occurred in the Wapp Tech
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`case, including a declaration of Fintiv’s economist expert Roy Weinstein, as well as new
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`arguments about the unrelated Federal Circuit case Finjan, Inc. v. Secure Computing Corp. 626
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`F.3d 1197, 1210-11 (Fed. Cir. 2010). Because Fintiv raised these important arguments for the
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`first time in its sur-reply, Apple should be permitted to address these new arguments in its
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`WEST\296025114.1
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`PUBLIC VERSION
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`
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`Case 6:21-cv-00926-ADA Document 392 Filed 09/13/21 Page 2 of 3
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`response to Fintiv’s sur-reply. See RedHawk Holdings Corp. v. Schreiber Tr. of Schreiber Living
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`Tr., 836 F. App’x 232, 237-38 (5th Cir. 2020) (permitting the filing of a sur-reply to address a
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`new argument); Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App’x 307, 315 (5th Cir. 2008)
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`(same).
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`A copy of Apple’s response to the sur-reply is attached as Exhibit 1.
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`Dated: September 7, 2021
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`Respectfully submitted,
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`/s/ John M. Guaragna
`John M. Guaragna
`Texas Bar No. 24043308
`Zachary Loney (Pro Hac Vice)
`Texas Bar No. 24092714
`DLA PIPER LLP (US)
`303 Colorado, Suite 3000
`Austin, TX 78701
`Telephone: (512) 457-7000
`Facsimile: (512) 457-7001
`john.guaragna@us.dlapiper.com
`
`Mark D. Fowler (Pro Hac Vice)
`DLA PIPER LLP (US)
`2000 University Avenue
`East Palo Alto, California 94303-2214
`Telephone: (650) 833-2000
`Facsimile: (650) 833-2001
`
`Sean C. Cunningham (Pro Hac Vice)
`CA Bar No. 98895
`Erin Gibson (Pro Hac Vice)
`CA Bar No. 229305
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101-4297
`Telephone: 619.699.2700
`Fax: 619.699.2701
`sean.cunningham@dlapiper.com
`erin.gibson@dlapiper.com
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`Paul Steadman (Pro Hac Vice)
`Stephanie Lim (Pro Hac Vice)
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`WEST\296025114.1
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`PUBLIC VERSION
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`Case 6:21-cv-00926-ADA Document 392 Filed 09/13/21 Page 3 of 3
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`
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`DLA PIPER LLP (US)
`444 West Lake Street, Ste. 900
`Chicago, IL 60606
`Telephone: 312.368.4000
`
`J. Stephen Ravel
`State Bar No. 16584975
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, TX 78701
`Telephone: 512.495.6329
`Facsimile: 512.495.6401
`steve.ravel@kellyhart.com
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`ATTORNEYS FOR DEFENDANT
`APPLE INC.
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`CERTIFICATE OF CONFERENCE
`Pursuant to Local Rule 7(g), I certify that on August 27 2021, counsel for Defendant
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`conferred by email with counsel for Plaintiff regarding the foregoing motion for leave to file a
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`Response. Plaintiff does not oppose the relief requested therein.
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`/s/ John M. Guaragna
`John M. Guaragna
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`CERTIFICATE OF SERVICE
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`I hereby certify that on September 7, 2021, all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document by electronic mail.
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`/s/ John M. Guaragna
`John M. Guaragna
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`WEST\296025114.1
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`PUBLIC VERSION
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