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Case 1 :06—cv—00028-SLR-LPS Document 179 Filed 10/17/2007 Page 1 of 3
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Blair M. Jacobs
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October 17, 2007
VIA CM/ECF AND HAND DELIVERY
The Honorable Mary Pat Thyn ge
U.S. District Court for the District of Delaware
J. Caleb Boggs Federal Building
844 N. King Street
Wilmington, DE 19801
Re: McKess0n Automation v. Swisslog Italia S.p.A. et al.
Civil Action No.: 06-028 (MPT)
Dear Magistrate Judge Thynge:
On October 3, 2007 Defendants filed a Motion to Dismiss based on its claim that
McKesson lacks ownership of the technology that is at the heart of this litigation, and thus lacks
standing. (Dckt. Nos. 165, 166) McKesson’s response is currently due on October 18, 2007.
McKesson requests a short extension for time to respond because certain facts require additional
investigation, particularly through deposition or witness affidavits from third parties.
Counsel for Mcliesson contacted Defendants’ counsel and requested agreement to a short
extension. Defendants would not agree to the extension unless McKesson refrained from
conducting discovery that was necessary to respond to the motion. For example, Defendants’
counsel indicated that they were agreeable to the requested extension if McKesson would agree
not to gather declarations or to conduct depositions of third party witnesses during the period of
extension. Of course, the reason McKesson requested the extension was to gather such evidence,
so Defendants’ unfair restrictions were unacceptable.
Defendants themselves just recently served notices for five (5) depositions directly
relating to issues before the Court in the pending motion. Defendants noticed those depositions
to occur on November 5, 2007, well after McKesson’s opposition deadline. lt is difficult to
understand how Defendants expect the motion to be fairly decided with such depositions
pending. Clearly it would be more efficient to gather such facts before asking the Court to
decide the issues on the merits.

Atlanta . Austin . Houston n New York n Tallahassee n Washington, DC

Case 1:06—cv—00028-SLR-LPS Document 179 Filed 10/17/2007 Page 2 of 3
The Honorable Mary Pat Thynge
October 17, 2007
Page 2
Motions for extensions of time to respond to pleadings and other motions are generally
governed by Federal Rule of Civil Procedure 6(b). Rule 6(b), in relevant part, states:
When by these rules or by a notice given thereunder or by order of court
an act is required or allowed to be done at or within a specified time, the court for
cause shown may at any time in its discretion (1) with or without motion or notice
order the period enlarged if request therefor is made before the expiration of the
period originally prescribed or as extended by a previous order, or (2) upon
motion made after the expiration of the specified period permit the act to be done
where the failure to act was the result of excusable neglect ....
Fed. R. Civ. P. 6(b).
As the Supreme Court has explained, a motion or request for extension made before the
expiration of a deadline requires a showing of cause. Lrrjan v. Nafl Wildlgfe F ed ’n, 497 U.S.
871, 896-97 (1990). Courts applying the "for cause shown" standard under Rule 6(b)(1) have
held that "an application for the enlargement of time under Rule 6(b)(1) normally will be granted
in the absence of bad faith on the part of the party seeking relief or prejudice to the adverse
pa1ty." Kemisant v. City of New York, 225 F.R.D. 422, 431 (E.D.N.Y. 2005) (citing 4 Charles
Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1165 (2d ed. 1986)).
The determination of whether there is “cause sh0wn" thus requires a two part analysis:
the absence of bad faith by the movant and the absence of prejudice to the party opposing an
extension. As noted above, courts have liberally applied this analysis. Moreover, the need for
additional discovery to respond to a motion is well accepted as satisfying the “cause shown"
requirement. For example, in Caudell v. Rose, 378 F. Supp. 2d 725, 728-9 (W.D. Va. 2005), the
district court held that the movant’s "stated reason, to permit a brief thirty day delay to obtain
additional affidavits and formulate their response to plaintiff’s complaint, constitutes adequate
cause to justify the granting of an extension."
There is no bad faith here. Instead, McKesson seeks additional time merely to fully
develop the record necessary to correctly identify and establish ownership interests in a series of
patent assignments that took place fifteen to sixteen years ago.
Additionally, there will be no prejudice to the Defendants’ in granting this Motion for an
Extension of Time. Perhaps most importantly, this issue cannot be resolved until a District Court
Judge is appointed to this case. There has been no indication that the appointment of a Judge is
imminent. As such, a minor delay cannot prejudice Defendants. On the other hand, if
McKesson is denied the extension and is unable to participate in necessary depositions or to
otherwise develop the record surrounding these assignments, this will result in extreme
prejudice. It is thus imperative that Plaintiffs be afforded this small extension to thoroughly
investigate the facts.
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Case 1:06—cv—00028-SLR-LPS Document 179 Filed 10/17/2007 Page 3 of 3
The Honorable Mary Pat Thynge
October 17, 2007
Page 3
It should also be noted that the discovery period has not expired. It is therefore arguable
that Defendants motion is untimely, and the Court should determine that it be treated as a motion
under Fed. R. Civ. P,. 56(f). This would undeniably result in additional discovery. The issue of
whether Defendants Motion to Dismiss should be treated as filed, under Fed. R. Civ. P.12(b)(I),
or Fed. R. Civ. P.P. 56(f) will be fully briefed in Plaintiff’s Opposition.
In view of the foregoing, McKesson respectfully requests an Extension of Time in which
to file its Opposition to Defendants’ Motion to Dismiss through and including November 9,
2007. In the alternative, Plaintiff requests an extension of time the Court deems appropriate.
Plaintiff has attached a proposed Order to this effect for the Court’s convenience.
Sincerely,
Blair M. Jacobs
cc: Clerk of Court (by CM/ECF)
Julia Heaney, Esquire (by CM/ECF and hand delivery)
Lawrence C. Drucker, Esquire (by email and Federal Express)
Alfred R. Fabricant, Esquire (by email and Federal Express)
Richard LaCava, Esquire (by email and Federal Express)
Bryan N. DeMatteo, Esquire (by email and Federal Express)
Robert A. Gutkin, Esquire
Christina A. Ondrick, Esquire
Christopher L. May, Esquire
Katherine R. Lahnstein, Esquire
SO ORDERED this day of , 2007
Hon. Mary Pat Thynge
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