Free Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1:04-cv-00858-SLR

Document 549

Filed 01/30/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LML PATENT CORP., Plaintiff, v. TELECHECK SERVICES, INC., ELECTRONIC CLEARING HOUSE, INC., XPRESSCHEX, INC., and NOVA INFORMATION SYSTEMS, INC., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 04-858-SLR

REQUEST FOR ONE WEEK CONTINUANCE OF TRIAL, OR IN THE ALTERNATIVE, ACCOMODATION DUE TO SCHEDULING CONFLICT The trial in this matter is currently set for the two weeks beginning April 17, 2006. The Pre-trial Conference in this matter is currently set for March 21, 2006. By this request, ECHO seeks a one week continuance of trial, subject to the Court's availability, or in the alternative, that the Court take a two-day recess from the trial on Wednesday, April 19, 2006, and Thursday, April 20, 2006, those days being made up, if necessary, at the Court's convenience. If the aforementioned alternatives are not feasible, then ECHO respectfully requests, as a last resort, that the order of trial be established such that no ECHO witnesses need go forward on those days. The Passover holiday this year is from April 13 through April 20, 2006. On four of those days, traditionally observant Jews do not work on the first two and last two days of Passover. This means that one of the lead counsel for ECHO, Mark B. Mizrahi, who is a traditionally observant Jew, will not be available on April 19 and 20, 2006, two of the days that fall in the first of the two weeks set aside for trial. 1

Case 1:04-cv-00858-SLR

Document 549

Filed 01/30/2006

Page 2 of 4

Unfortunately, this conflict was not noticed until December 7, 2005, after which Mr. Mizrahi sent a communication to all counsel informing them of the present conflict. On

December 13, 2005, all counsel, including plaintiff, conferred by telephone. Plaintiff's counsel proposed not starting until the Friday of the first week set aside for trial, i.e., April 21, 2006. The other defendants were not averse to continuing the trial, but noted that Tim Devlin, counsel for defendant TeleCheck Services, Inc. in this case, has a trial scheduled before this Court the week following the last day of trial in the instant case. Prior to submitting this request, I circulated a draft request in its present form, including this paragraph, in order to solicit once again the parties' positions. Plaintiff's counsel informed ECHO that plaintiff would like an opportunity to respond in-writing to this Request. ECHO's co-defendants are not opposed to the relief

requested herein, provided that their time for presentation of their respective cases at trial is not abridged. ECHO, naturally, understands that the Court has a highly impacted trial schedule and requests the aforementioned relief to the extent it will not create a great inconvenience to the Court. It remains unclear whether all of the entire two weeks will be necessary in this case for trial, especially in the event that the Court bifurcates liability from the other issues in the case, inter alia, damages and willfulness. The parties and the Court may have a better idea as to how much time will be necessary once the Pretrial Conference is held. In any event, in order to give the Court adequate notice of the present conflict, ECHO elected to file this request well in advance of the Pretrial Conference. Counsel is available at the Court's convenience to discuss the matters set forth herein.

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Case 1:04-cv-00858-SLR

Document 549

Filed 01/30/2006

Page 3 of 4

Respectfully submitted, /s/ Francis DiGiovanni Francis DiGiovanni, Esq. (#3189) CONNOLLY BOVE LODGE & HUTZ LLP The Nemours Building 1007 North Orange Street Wilmington, DE 19801 Phone: 302-658-9141 Fax: 302-658-5614 OF COUNSEL: Robert Jacobs, Esq. (Pro Hac Vice) Mark Mizrahi, Esq. (Pro Hac Vice) Don H. Min, Esq. (Pro Hac Vice) BELASCO JACOBS & TOWNSLEY, LLP 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Phone: (310) 743-1188 Fax: (310) 743-1189 Attorneys for Electronic Clearing House, Inc. and XpressChex, Inc. Dated: January 30, 2006

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Case 1:04-cv-00858-SLR

Document 549

Filed 01/30/2006

Page 4 of 4

CERTIFICATE OF SERVICE I, Francis DiGiovanni, hereby certify that on January 30, 2006, this document was filed electronically through ECF, and a true and correct copy of this document was caused to be served on the attorneys of record at the following addresses: VIA E-MAIL AND HAND DELIVERY Richard K. Herrmann, Esquire Morris James Hitchens & Williams LLP 222 Delaware Avenue, 10th Floor Wilmington, DE 19801 VIA E-MAIL AND HAND DELIVERY Richard D. Kirk, Esquire The Bayard Firm 222 Delaware Avenue, 9th Floor P.O. Box 25130 Wilmington, DE 19899 VIA E-MAIL Mark C. Scarsi, Esquire O'Melveny & Myers LLP 400 S. Hope Street Los Angeles, CA 90071 VIA E-MAIL AND HAND DELIVERY William J. Marsden, Esquire Fish & Richardson, P.C. 919 N. Market Street, Suite 1100 P.O. Box 1114 Wilmington, DE 19899-1114 VIA E-MAIL Russell E. Levin, Esquire, P.C. Kirkland & Ellis LLP 200 East Randolph Drive Chicago, Illinois 60601

VIA E-MAIL Dale M. Cendali, Esquire O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, NY 10036

443442v1

/s/ Francis DiGiovanni Francis DiGiovanni (#3189)

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