Free Motion to Stay - District Court of Delaware - Delaware

Case 1:06-cv-00077-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BALDWIN GRAPHIC SYSTEMS, INC., Plaintiff, v. FIBERWEB SIMPSONVILLE, INC., and FIBERWEB, INC., Defendants. ) ) ) ) ) ) ) ) ) )

Civil Action No. 06-077-JJF

DEFENDANTS' MOTION TO STAY THIS ACTION Defendants move to modify the stay order entered July 19th 2007 ("the Order") in this action (D.I. 54). The Order stayed this case pending the decision by the United States Court of Appeals for the Federal Circuit in Baldwin Graphic Systems, Inc. v. Siebert, Inc., 07-1262 (Fed. Cir.). The Court conditioned the Order upon the entry of a parallel stay in Fiberweb PLC v. Baldwin Graphic Systems, Inc., No. HC-07-C (United Kingdom High Court of Justice, Chancery Div.) ("the UK action"). Fiberweb hereby requests that the Court remove this condition because it was for Baldwin's benefit and Baldwin has rejected it. The Court explained during the hearing on this matter that a parallel stay in the UK action was appropriate because of Baldwin's argument that Fiberweb was "going to gain an advantage because of what you're doing in the United Kingdom." Transcript (Exhibit A hereto), p. 3, lines 15-16. The Court also noted that Baldwin's "argument about business competition [was] compelling." Transcript, p. 4, lines 2-3. Accordingly, this Court asked Fiberweb if it were

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willing to stay the UK action. See Transcript, p. 2, lines 18-19; p. 3, lines 18-20; and p. 5, lines 4-6. Fiberweb agreed, pending client approval. Transcript p. 11, lines 6-8. Thereafter, Fiberweb took steps to obtain a stay in the UK action. On July 24, 2007, Fiberweb's U.K. counsel sent a draft consent order to stay the UK action to Baldwin's U.K. counsel. See Halford-Harrison declaration and Ex. RHH-1. After almost a month's time, Baldwin rejected Fiberweb's proposal and declined to consent to a stay in the UK action. See Halford-Harrison declaration and Ex. RHH-2. Fiberweb has, consistent with its representations to this Court, done what it could to effect a stay in the UK action, but Baldwin has frustrated those efforts. Fiberweb cannot proceed alone in seeking a stay without risking sanctions. See Halford-Harrison declaration (making an application in the U.K. Courts without proper grounds or Baldwin's participation could subject Fiberweb to Rule 11 type sanctions). The proposed stay in the UK action was solely for the benefit and protection of Baldwin. Fiberweb has taken all reasonable steps to obtain such. By constrast, Baldwin has delayed and ultimately rebuked Fiberweb's efforts. Because Baldwin does not want the stay, and because it was solely for Baldwin's protection, Fiberweb submits that a stay in the UK action should no longer be a prerequisite for staying this action. Accordingly, Fiberweb respectfully requests that the this Court grant a stay in this case pending the decision by the United States Court of Appeals for the Federal Circuit in Baldwin Graphic Systems, Inc. v. Siebert, Inc., 07-1262 (Fed. Cir.) without condition. A proposed form of Order is submitted herewith.

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Date: August 28, 2007

Respectfully submitted, CONNOLLY BOVE LODGE & HUTZ, LLP _ /s/ Francis DiGiovanni Francis DiGiovanni (#3189) The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, Delaware 19899-2207 Telephone: 302-888-6316 Facsimile: 302-658-5614 [email protected]

Of Counsel: Michael E. Zeliger Christopher Centurelli Jackson Ho KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP State Street Financial Center One Lincoln Street Boston, MA 02111-2950 Telephone: (617) 261-3100

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CERTIFICATE OF CONFERENCE I certify that counsel for the defendants conferred by telephone with counsel for plaintiff on Tuesday August 21, 2007, regarding the relief sought in this Motion. Despite these efforts, the parties were unable to resolve the issues presented by this Motion. Accordingly, this Motion is presented to the Court for determination.

/s/ Francis DiGiovanni Francis DiGiovanni (#3189)

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BALDWIN GRAPHIC SYSTEMS, INC., Plaintiff, v. FIBERWEB SIMPSONVILLE, INC., and FIBERWEB, INC., Defendants. ) ) ) ) ) ) ) ) ) )

Civil Action No. 06-077-JJF

ORDER STAYING CASE WHEREAS, defendants Fiberweb Simpsonville, Inc. and Fiberweb, Inc. (collectively, "Fiberweb"), moved to stay this case pending the decision by the United States Court of Appeals for the Federal Circuit in Baldwin Graphic Systems, Inc. v. Siebert, Inc., 07-1262 (Fed. Cir.) (D.I. 44), and the parties fully briefed said motion; WHEREAS, on July 13, 2007, the Court heard argument thereon; WHEREAS, on July 19, 2007, the Court subsequently entered a stay of this case that was conditioned upon a stay of a related UK action (D.I. 54); WHEREAS Fiberweb subsequently moved to remove the condition set forth in the original stay, and the Court subsequently heard argument regarding modification of the stay; IT IS SO ORDERED, this ______ day of ___________, 2007, that Fiberweb's second motion to stay is GRANTED, and this case is stayed pending the decision by the United States Court of Appeals for the Federal Circuit in Baldwin Graphic Systems, Inc. v. Siebert, Inc., 071262 (Fed. Cir.). Upon issuance of the decision by the Federal Circuit on appeal no. 07-1262, counsel shall jointly contact the Court to request a teleconference for the purpose of preparing an amended scheduling order in this case. __________________________________ Joseph J. Farnan, Jr. United States District Judge

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CERTIFICATE OF SERVICE I, Francis DiGiovanni, Esq., hereby certify that on August 28, 2007 copies of the foregoing DEFENDANTS' MOTION TO STAY THIS ACTION were caused to be served upon the following: BY HAND DELIVERY Jack Blumenfeld, Esquire Morris, Nichols, Arsht & Tunnell 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 BY FACSIMILE AND FEDERAL EXPRESS Keith J. McWha, Esquire Morgan & Finnegan 3 World Financial Center New York, New York 10281-2101

/s/ Francis DiGiovanni Francis DiGiovanni (#3189)

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