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1 ROBERT J. YORIO (SBN 93178) [email protected] 2 COLBY B. SPRINGER (SBN 214868) [email protected] 3 CHRISTINE S. WATSON (SBN 218006) [email protected] 4 CARR & FERRELL LLP 2200 Geng Road 5 Palo Alto, California 94303 Telephone: (650) 812-3400 6 Facsimile: (650) 812-3444 7 Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC 8 9 10 11 12 13 ACTICON TECHNOLOGIES LLC, 14 15 v. Plaintiff, SUPPLEMENTAL DECLARATION OF CHRISTINE S. WATSON IN SUPPORT OF PLAINTIFF ACTICON TECHNOLOGIES LLC'S EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION Date: Time: Judge: Courtroom: November 9, 2007 9:00 a.m. Hon. Jeremy Fogel 3, Fifth Floor CASE NO. C 07-4507 JF (HRL) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
16 PRETEC ELECTRONICS CORPORATION, a dissolved California corporation; PTI 17 GLOBAL, INC., a California corporation; CHIU FENG CHEN, an individual; GORDON 18 YU, an individual; TOMMY HO, an individual; ROBERT WU, an individual; GRACE YU, an 19 individual; KUEI LU, an individual; and DOES 1 through 20, 20 Defendants. 21 22 23 24
I, the undersigned, CHRISTINE S. WATSON, declare as follows: 1. I am an attorney admitted to practice before all of the courts of the State of
25 California. I am an associate with the firm of Carr & Ferrell LLP, the attorneys of record for 26 plaintiff Acticon Technologies LLC ("ACTICON"). I make this declaration in support of Acticon's 27 Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction and 28 Supplemental Brief in support of Ex Parte Application for Temporary Restraining Order and
{00260467v1}
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1 Motion for Preliminary Injunction. I am one of the attorneys responsible for representing 2 ACTICON in this action, and the facts set out herein are within my personal knowledge, or are 3 based on documents in my possession and other information to which I have access in the course of 4 my duties. If called upon to do so I could and would testify to the truth thereof. 5 2. On October 5, 2007, I received a voicemail from Leodis Matthews, an attorney with
6 Matthews & Partners, who called on behalf of PTI Global, Inc. regarding the status of ACTICON's 7 Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction. 8 3. I did not receive any communication from Mr. Matthews, via telephone, e-mail or
9 otherwise, after my correspondence with him on October 5, 2007. 10 4. On October 10, 2007, Robert J. Yorio, a partner with my law firm and attorney of
11 record for ACTICON, sent Mr. Matthews an e-mail inquiring whether Mr. Matthews or Linda Shao 12 represented PTI Global, Inc. Neither Mr. Yorio nor I received an e-mail from Mr. Matthews in 13 response to our inquiry. 14 5. Attached as Exhibit "A" is a true and correct copy of the Ex Parte Reexamination
15 Certificates for United States Patent Nos. 4,603,320 and 4,972,470. 16 6. Attached as Exhibit "B" is a true and correct copy of the October 5, 2007 e-mail
17 exchange between me and Leodis Matthews. 18 7. Attached as Exhibit "C" is a true and correct copy of the October 11, 2007 letter
19 from Robert J. Yorio to Linda Shao. 20 8. Attached as exhibit "D" is a true and correct copy of the October 12, 2007 e-mail
21 from Chi-Lin Tom to me. 22 9. Attached as Exhibit "E" is a true and correct copy of the Acclaim Innovations LLC's
23 Motion for Entry of Default and Default Judgment in Lexar Media, Inc. v. Pretec Electronics 24 Corporation, Case No. 00-4770 MJJ. 25 10. Attached as Exhibit "F" is a true and correct copy of the Order filed October 24,
26 2007, in Sandisk Corp. v. Memorex Products, Inc., Case No. 01-4063 VRW. 27 11. Attached as Exhibit "G" is a true and correct copy of the WHOIS record for the
28 registrant of www.pretec.com.
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1
12.
Attached as Exhibit "H" is a true and correct copy of the Notice Vacating Motions
2 Hearing on Acclaim Innovations LLC's Motion for Entry of Default and Default Judgment in Lexar 3 Media, Inc. v. Pretec Electronics Corporation, Case No. 00-4770 MJJ. 4 5 I declare under penalty of perjury under the laws of the State of California that the
6 foregoing is true and correct. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
{00260467v1}
Executed this
[2nd]
day of November, 2007, at Palo Alto, California.
/s/ Christine S. Watson CHRISTINE S. WATSON
-3Supp. Decl. of Christine S. Watson ISO Plaintiff Acticon Technologies LLC's Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction C 07-4507 JF (HRL)
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EXHIBIT A
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EXHIBIT B
Case 5:07-cv-04507-JF Christine Watson
From: Sent: To: Cc: Subject:
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[email protected] Friday, October 05, 2007 4:14 PM Christine Watson Robert Yorio Re: Acticon v. Pretec
Christine - thank you, I look forward to speak with you next week. Best regards, Lee Matthews Sent from my BlackBerry® wireless device -----Original Message----From: "Christine Watson"
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EXHIBIT E
Case 3:00-cv-04770-MJJ Document 23 5:07-cv-04507-JF Document 397 Filed 11/02/2007 Page 20 1 of 6 Filed 07/10/2007 Page of 33 MATTHEW D. POWERS (Bar No. 104795) [email protected] STEVEN CHERENSKY (Bar No. 168275) [email protected] RIP FINST (Bar No. 234478) [email protected] WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3000 Facsimile: (650) 802-3100 ANITA E. KADALA (admitted pro hac vice) [email protected] WEIL, GOTSHAL & MANGES LLP Houston Office 700 Louisiana, Suite 1600 Houston, TX 77002 Telephone: (713) 546-5000 Facsimile: (713) 224-9511 Attorneys for Plaintiff ACCLAIM INNOVATIONS, LLC
1 2 3 4 5 6 7 8 9 10 11 12 13
UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 18 19 20 21 22 23 24 25 26 27 28
ACCLAIM'S MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT Case No. 00-CV-4770 MJJ #264232
ACCLAIM INNOVATIONS, LLC, Plaintiff, v. PRETEC ELECTRONICS CORP.; PNY TECHNOLOGIES, INC.; MEMTEK PRODUCTS, INC.; and C-ONE TECHNOLOGY CORP. Defendants.
Case No. 00-CV-4770 MJJ ACCLAIM INNOVATIONS, LLC'S MOTION FOR ENTRY OF DEFAULT AND DEFAULT JUDGMENT Date: Time: Place: August 14, 2007 9:30 a.m. Courtroom 11, 19th Floor Honorable Martin J. Jenkins
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1
NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on August 14, 2007, at 9:30 a.m., or as soon thereafter as this matter may be heard, in Courtroom 11 of the United States District Court for the Northern District of California, San Francisco Division, located at 450 Golden Gate Avenue, San Francisco, California 94102, Acclaim Innovations, LLC ("Acclaim") will move and hereby does move for entry of default and default judgment against defendant Pretec Electronics Corp. ("Pretec"). This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities set forth below, the declaration of Rip Finst, the complete records and files of this action, the arguments of counsel, such additional evidence as the Court may consider, and all matters of which the Court may take judicial notice. RELIEF SOUGHT Pursuant to Federal Rules of Civil Procedure 16(f) and 55, Acclaim respectfully requests that the Court strike Pretec's answer and enter default and default judgment against Pretec. MEMORANDUM OF POINTS AND AUTHORITIES For over one year, Pretec has, in violation of the Court's Order, failed to obtain counsel. Pretec also has not made an appearance or attended a status conference in this case since June 2006. Pretec has simply shown no interest in participating in this action and defending itself against Acclaim's claims of patent infringement. The Court has discretion to enter judgment by default (Fed. R. Civ. P. 55(b)(2)), and where, as here, a party has disregarded a Court Order to retain counsel and repeatedly failed to appear, entry of default and default judgment pursuant to Federal Rules of Civil Procedure 16(f) and 55(b)(2) is and should be granted.1 Ringgold Corp. v. Worrall, 880 F.2d 1138, 1141 (9th Cir. 1989) (affirming district court's grant of motion for default and default judgment where plaintiffs did not comply with Court order granting "Rule 16(f) expressly provides for imposing sanctions on disobedient or recalcitrant parties.... [ ] Furthermore, [Rule 16(f)'s] explicit reference to sanctions reinforces the rule's intention to encourage forceful judicial management." Fed. R. Civ. P. 16(f) advisory committee's note on 1983 amend.
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motion for withdrawal that instructed plaintiffs to obtain new counsel and for plaintiffs' "repeated failure to attend pretrial conferences, [and] otherwise participate in or remain informed about the litigation"). Further, Federal Rule of Civil Procedure 16(f) authorizes the Court to enter default against a party who disobeys a scheduling or pretrial order, as Pretec has done here.2 A. Pretec Has Repeatedly Violated The Court's Orders And Has Not Participated In This Case For More Than A Year On May 30, 2006, the Court granted Mount & Stoelker's motion to withdraw as counsel for Defendants Pretec, PNY Technologies, Inc. and C-One Technology Corp. ("C-One") (Docket No. 325). The Court's Order further directed Pretec and C-One "to assign replacement counsel within 30 days of the date of this order." C-One, appearing pro per, filed a Motion To Reconsider Motion on June 12, 2006 requesting that the Court reconsider its order granting Mount & Stoelker's motion to withdraw as counsel (Docket No. 332). On the same date, Pretec filed a Notice Of Joinder joining C-One's Motion (Docket No. 333). In its Motion, C-One (and, thereby, Pretec) requested "60 days to retain a new counsel." Docket No. 332 at 4. However, more than ten months later, neither C-One nor Pretec had retained counsel. Thus, on April 16, 2007, the Court entered an Order instructing Pretec and C-One to file a response within 10 days "which: (1) addresses the merits of the Motion To Withdraw As Counsel, to the extent that C-One and/or Pretec continue to oppose that motion, and/or (2) clarifies for the Court whether and on what timeline C-One and Pretec intend to retain new counsel to represent them in this action." Docket No. 381. Neither Pretec nor C-One filed a response, and, on May 14, 2007, the Court thereby denied their motion for reconsideration. See Docket No. 385. Further, Pretec and C-One did not appear for a Court-ordered status conference on June 5, 2007. See Docket No. 387. Consequently, on June 8, 2007, the Court issued an order to show cause why the defendants failed to appear at the status conference and warned that "[f]ailure to respond may result in the Court striking each defendant's answer and entry of default." Docket No. 389. Pretec did not file a
2
"Among the sanctions authorized by [Rule 16(f)] are:... default judgment...and charging a party, his attorney, or both with the expenses, including attorney's fees, caused by noncompliance." Fed. R. Civ. P. 16(f) advisory committee's note on 1983 amend.
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response by the June 29 deadline.3 Pretec has had thirteen months to retain new counsel, but, in violation of the Court's Order and in contradiction of its representations to the Court and Acclaim, has not done so and has proffered no basis for its continuing failure to retain counsel. Moreover, Pretec has repeatedly failed to respond to the Court's Orders (see, e.g., Docket Nos. 381, 389) and did not appear for a status conference intended to cover "all remaining issues in this matter." See Docket No. 385 Pretec's failure to appear has, inter alia, and as the Court noted (see id.), precluded Acclaim from meeting and conferring with Pretec on remaining pretrial deadlines, including additional discovery, and has prejudiced Acclaim's right to resolution of its claims. Given Pretec's repeated and long-standing non-compliance with the Court's Orders and failure to participate in any proceedings, Acclaim requested nearly eight months ago that the Court enter an order to show cause why default judgment should not be entered against defendants Pretec and C-One. See Joint Statement of Case Status (Docket No. 348) at 2:23-3:2 Acclaim renewed its request on November 30, 2006. Joint Status Conference Statement (Docket No. 350) at 4:20-26. At the December 5, 2006 status conference, the Court stated that it would issue an order to show cause why default judgment should not be entered against Pretec and C-One. Finst Decl, ¶ 2. This issue was revisited at status conferences on January 17, 2007 (id. at ¶ 3) and June 5, 2007 (Docket No. 387). Further, the Court issued two orders expressly warning Pretec that its failure to appear and respond would result in entry of default. See Order GrantingIn-Part And Denying-In-Part Motion For Reconsideration (Docket No. 381) at 2:14-17; Order to Show Cause (Docket No. 389) at 1:20-21. Thus, the Court has for many months extended every accommodation to Pretec. However, the time is ripe to enter default and terminate this action without further delay. B. Entry Of Default And Default Judgment Is Warranted The Court must consider five factors in deciding whether to declare a default judgment: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the [party seeking default]; (4) the public policy
3
C-One, represented by new counsel, filed a response (Docket No. 391). 3
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favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions." Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990) (affirming district court's entry of default judgment against party who failed to appear and refused to comply with court orders). Where, as here, "a court order is violated, the first two factors support [default] and the fourth factor cuts against a default. Therefore, it is the third and fifth factors that are decisive." Id. Regarding the third factor, the risk of prejudice to Acclaim is substantial. This action is seven years old, and Acclaim has settled with defendants PNY and Memtek. However, Acclaim has and continues to incur significant expense by diligently pursuing its claims against a defendant that has willfully and in bad faith refused to participate for more than one year. Pretec remains untouchable unless, as the Court noted, it appears with counsel.4 See Further Order Re: Motion To Reconsider (Docket No. 385) at 1:23-24 (citing Local Rule 3-9(b) and United States v. High Country Broadcasting Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993)). Pretec's actions have precluded Acclaim (and the Court) from meaningfully proceeding with this action, thus, causing significant prejudice to Acclaim. See Adriana Intern. Corp., 913 F.2d at 1412 (stating that the moving party "suffers prejudice if the [the other party's] actions impair the [moving party's] ability to go to trial or threaten to interfere with the rightful decision of the case."). Further, Pretec's refusal to comply with the Court's Orders, which were intended to facilitate resolution of this action, have interfered with Acclaim's right to timely adjudication of its claims. See id. (finding that party's "continuing refusal to comply with court-ordered production of documents constitutes an interference with the rightful decision of the case"). Moreover, Pretec's
infringement of Acclaim's patents has harmed and continues to harm Acclaim. Unless default and default judgment is entered, Pretec's absence will continue to needlessly prejudice Acclaim. Indeed, under circumstances less egregious than those here, the Court in Adriana concluded that Pretec, however, cannot insulate itself from entry of default and default judgment by claiming a lack of counsel. The Court's rationale in Ringgold Corp., 880 F.2d at 1141-1142, applies with equal force here: "Even before [Pretec's] counsel withdrew, [Pretec] had a duty to keep track of the progress of their lawsuit. They are considered to have notice of all facts known to their lawyer-agent. ... Once counsel withdrew, their duty to keep track of their lawsuit became that much greater." (emphasis added) Thus, entry of default judgment should not indeed, cannot come as a surprise to Pretec.
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the moving party had established prejudice. See id. Regarding the fifth factor, the Court has previously considered and instituted less drastic sanctions. See id. (setting forth three-part analysis for determining whether district court "properly considered the adequacy of less drastic sanctions"). As stated above, the issue of default has been discussed with the Court for many months (most recently at a status conference Pretec willfully refused to attend), and the Court has at least twice issued Orders warning that the sanction of default was viable and available. The Court already sanctioned Pretec for its flagrant disregard of the Court's Orders, including striking without prejudice Pretec's Motion for Summary Judgment of Invalidity. See Docket No. 385. Despite the fact that the Court ordered Pretec to retain counsel more than one year ago and has already sanctioned Pretec, Pretec continues to blatantly defy the Court's requests. Indeed, Pretec has been silent and not even proffered an excuse for its continuing failure to make an appearance. Thus, it is highly unlikely that any sanction less than entry of default and default judgment will notice Pretec of the severity of its improper and abusive conduct in these proceedings. Finally, in contrast to the Court's decision in Adriana, here, the fourth factor is favored. Although there may be a general policy in favor of granting decisions on the merits, Pretec's absence has significantly frustrated indeed, stalled this action and, thus, a decision on the merits is impossible and impractical. Thus, each and every factor, favors immediate entry of default and default judgment against Pretec. CONCLUSION For each of the aforementioned reasons, Acclaim respectfully requests that the Court strike Pretec's answer and enter default and default judgment against Pretec. Dated: July 10, 2007 WEIL, GOTSHAL & MANGES LLP
By:
/s/ Steven Cherensky STEVEN S. CHERENSKY Attorneys for Plaintiff, ACCLAIM INNOVATIONS, LLC
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EXHIBIT F
Case 3:01-cv-04063 Case 5:07-cv-04507-JF Document 494 Document 23
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Sandisk Corp ("Sandisk") filed a motion for summary judgment of infringement against defendant Pretec Electronics Corp ("Pretec") on September 6, 2007. motion was to be heard on October 25, 2007. Doc #474. This v MEMOREX PRODUCTS, INC, et al, Defendants. / SANDISK CORP, Plaintiff, No C 01-4063 VRW IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORDER
Pretec failed to file
an opposition on or before October 4, 2007 as required by Civ Local Rule 7-3(a). Accordingly, on October 9, 2007, the court vacated
the October 25, 2007 hearing and ordered Pretec to show cause by October 12, 2007 why Sandisk's motion should not be treated as unopposed and granted. Doc #489. Pretec has been represented in
this action by the law firm of Mount & Stoelker.
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
On October 12, 2007, the law firm of Matthews & Partners filed a request on Pretec's behalf seeking leave "to make a special appearance until a substitution of attorney [could] be accomplished" and further requesting "an extension of 5 business days, to and including October 19, 2007, within which to file a response to the OSC." Doc #490.
The same day, the court entered an order giving Pretec until October 19, 2007 within which time to (1) enter an appearance and substitution of counsel, and (2) respond to the order to show cause of October 9, 2007. Pretec failed to comply.
Accordingly, the clerk is DIRECTED to enter default as to defendant Pretec Electronics Corp pursuant to FRCP 55(a). The
trial, currently scheduled to commence on November 14, 2007, is VACATED.
SO ORDERED.
VAUGHN R WALKER United States District Chief Judge
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EXHIBIT G
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Visit AboutUs.org for more information about PRETEC.COM AboutUs: PRETEC.COM Registrant: PTI Global Inc. 231 Whitney Place Fremont, CA 94539 US Domain Name: PRETEC.COM Administrative Contact : PTI Global Inc. [email protected] 231 Whitney Place Fremont, CA 94539 US Phone: 510-249-9055 Fax: 510-249-9015 Technical Contact : ., Hostmaster [email protected] 231 Whitney Place Fremont, CA 94539 US Phone: 510-249-9055 Fax: 510-249-9015 Record expires on 03-Dec-2010 Record created on 04-Dec-1995 Database last updated on 27-Jun-2006 Domain servers in listed order: NS3.WORLDNIC.COM NS4.WORLDNIC.COM Show underlying registry data for this record Manage DNS 205.178.190.2 205.178.189.2 Make this info private
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EXHIBIT H
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 v. Plaintiff,
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
LEXAR MEDIA, INC. , et al.,
No. C 00-4770 MJJ
CLERK'S NOTICE VACATING MOTIONS HEARING
PRETEC ELECTRONICS CORP., et al., Defendants, /
(Plaintiff is required to serve, and file proof of service with the Court, any party involved not listed on the attached notice of electronic filing)
YOU ARE NOTIFIED THAT the Court has VACATED the motions hearing previously scheduled for Tuesday, August 14, 2007 at 9:30 a.m. before the Honorable Martin J. Jenkins. The 14 matter has been deemed submitted on the papers. 15 16 17 18 Dated: 8/13/07 19 20 21 22 23 24 25 26 27 28 By:_____________________ Edward Butler Courtroom Deputy FOR THE COURT, Richard W. Wieking, Clerk
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