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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICROSOFT CORPORATION, Plaintiff, v. ALCATEL-LUCENT, Defendant. PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR AN UNCONDITIONAL EXTENSION OF TIME Plaintiff does not have, and never has had, any objection to a reasonable extension of time for Defendant to "analyze the claims made against it and decide how to respond" --the stated purpose of Defendant's request for additional time from this Court. (D.I. 10 at ΒΆ 2.) Rather than do so, however, Defendant apparently seeks to stall for two months and then advise of some perceived technical deficiency in service of process. To shortcut this procedural dance, Plaintiff's counsel responded in an email as follows to the first indication that service of process may be of concern: What is the issue with the service? Perhaps we can clear that up through some mutually agreeable approach and at the same time get your folks the extension that they want. Ex. A.1 When Defendant continued to balk, Plaintiff's counsel explained as follows: We have indicated our flexibility regarding the due date for responding to the Complaint and I believe that all the bases regarding service of process have been properly addressed. Nonetheless, please advise your side of Microsoft' concern regarding waiting until April 20th only to learn that s there is some perceived issue with service that can be remedied. If there is some service issue, we should get it ironed out now rather than let it languish for another month or so.
1
C.A. No. 07-90-SLR
A true and accurate copy of e-mail correspondence of counsel is attached hereto as Exhibit A for the Court's convenience.
Case 1:07-cv-00090-SLR
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Id. Rather than engage cooperatively regarding this issue, Defendant filed the nowpending motion demanding an unconditional extension of time. Defendant can only be searching for a loophole regarding service of process, because it has already been physically served with two copies of the summons and Complaint--via long-arm service by registered mail sent to its New Jersey facility (D.I. 9) and directly at its facility in France via Federal Express mail sent by the Clerk of this Court (D.I. 5-8). Allowing Defendant nearly two months before it even advises Plaintiff of any perceived technical deficiency regarding service would serve no legitimate purpose. Thus, Plaintiff respectfully opposes Defendant' s unconditional demand to delay until April 20th before providing any response at all regarding any perceived problems with service of the Complaint. DATED: March 19, 2007 FISH & RICHARDSON P.C. By: /s/ Thomas L. Halkowski Thomas L. Halkowski (# 4099) 919 N. Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 Tel: (302) 652-5070 Fax: (302) 652-0607 Attorneys for Plaintiff Microsoft Corporation
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 19, 2007, I electronically filed PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR AN UNCONDITIONAL EXTENSION OF TIME with the Clerk of Court, using CM/ECF which will send notification of such filing to the following Delaware counsel. In addition, the filing will also be served via hand delivery. Jack B. Blumenfeld Morris, Nichols, Arsht & Tunnell LLP 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 Attorneys for Defendant Alcatel-Lucent
/s/ Thomas L. Halkowski Thomas L. Halkowski (#4099)
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Exhibit A
Microsoft v. Alcatel-Lucent Case 1:07-cv-00090-SLR
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Sharon Bradley
From: Sent: To: Blumenfeld, Jack [[email protected]] Thursday, March 15, 2007 5:27 PM Thomas Halkowski
Subject: RE: Microsoft v. Alcatel-Lucent Tom -I have passed your message along to my client. In the meantime, unless we hear today that Microsoft will agree to an unconditional extension of time, we will file a motion either tonight or in the morning. Thanks for your consideration. Jack )URP 7KRPDV +DONRZVNL >PDLOWRKDONRZVNL#IUFRP@ 6HQW 7KXUVGD\ 0DUFK 30 7R %OXPHQIHOG -DFN 6XEMHFW 5( 0LFURVRIW Y $OFDWHO/XFHQW Jack, We have indicated our flexibility regarding the due date for responding to the Complaint and I believe that all the bases regarding service of process have been properly addressed. Nonetheless, please advise your side of Microsoft's concern regarding waiting until April 20th only to learn that there is some perceived issue with service that can be remedied. If there is some service issue, we should get it ironed out now rather than let it languish for another month or so. Per your request, I will check with our side regarding your proposal for an unconditional extension of time. In the interim, please double-check with your side regarding whether there's an approach we can take that will eliminate any concerns regarding service of process. Regards, Tom )URP %OXPHQIHOG -DFN >PDLOWR-%OXPHQIHOG#01$7FRP@ 6HQW 7KXUVGD\ 0DUFK 30 7R 7KRPDV +DONRZVNL 6XEMHFW 5( 0LFURVRIW Y $OFDWHO/XFHQW Tom -- We are investigating the service of process issue and will not agree not to contest. Please let me know whether we can have the 30 days, so that we know whether we have to get a motion on file. Jack )URP 7KRPDV +DONRZVNL >PDLOWRKDONRZVNL#IUFRP@ 6HQW 7KXUVGD\ 0DUFK 30 7R %OXPHQIHOG -DFN 6XEMHFW 5( 0LFURVRIW Y $OFDWHO/XFHQW
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Microsoft v. Alcatel-Lucent Case 1:07-cv-00090-SLR
Jack,
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What is the issue with the service? Perhaps we can clear that up through some mutually agreeable approach and at the same time get your folks the extension that they want. Please advise. Thanks, Tom )URP %OXPHQIHOG -DFN >PDLOWR-%OXPHQIHOG#01$7FRP@ 6HQW 7KXUVGD\ 0DUFK $0 7R 7KRPDV +DONRZVNL 6XEMHFW 5( 0LFURVRIW Y $OFDWHO/XFHQW Tom -- We will not agree to the condition that you have proposed. Please let me know whether I can e-sign for you without that condition or whether we have to seek an extension from Judge Robinson. Jack )URP 7KRPDV +DONRZVNL >PDLOWRKDONRZVNL#IUFRP@ 6HQW :HGQHVGD\ 0DUFK 30 7R %OXPHQIHOG -DFN 6XEMHFW 5( 0LFURVRIW Y $OFDWHO/XFHQW Jack, Microsoft agrees to this stipulation and you can e-sign the stipulation on my behalf with the understanding that Alcatel will not be contesting service of the Complaint. If there are any issues, please give me a call. Regards, Tom )URP %OXPHQIHOG -DFN >PDLOWR-%OXPHQIHOG#01$7FRP@ 6HQW :HGQHVGD\ 0DUFK $0 7R 7KRPDV +DONRZVNL 6XEMHFW 0LFURVRIW Y $OFDWHO/XFHQW <
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Microsoft v. Alcatel-Lucent Case 1:07-cv-00090-SLR
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