Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-04820-MMC

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Jeffrey K. Lee, CA Bar No. 212465 Kimberly A. Donovan, CA Bar No. 160729 GCA LAW PARTNERS LLP 1891 Landings Drive Mountain View, CA 94043 Phone No.: (650) 428-3900 Fax No.: (650) 428-3901 Email: [email protected] Email: [email protected] [Additional Plaintiff counsel identified below] Attorneys for Plaintiffs STAR NAVIGATION SYSTEMS GROUP LTD. and VIRAF S. KAPADIA Kevin C. McCann (SB# 120874) Paul, Hastings, Janofsky & Walker LLP 55 Second Street Twenty-Fourth Floor San Francisco, CA 94105 United States of America Telephone: (415) 856-7000 Facsimile: (415) 856-7100 Email: [email protected] [Additional Defendant's counsel identified below] Attorneys for Defendant AEROMECHANICAL SERVICES LTD. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION STAR NAVIGATION SYSTEMS GROUP LTD. and VIRAF S. KAPADIA, Plaintiffs, and HILARY VIEIRA, Honorable Maxine M. Chesney Involuntary Plaintiff, Courtroom 7, 19th Floor v. AEROMECHANICAL SERVICES LTD., Defendant. Case No. C 07-4820 (MMC) JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] CASE MANAGEMENT ORDER

Case No. C 07-4820 (MMC) JOINT CASE MANAGEMENT STATEMENT

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Pursuant to Federal Rule of Civil Procedure 26(f), Civil Local Rule 16-9, and the Court's Standing Orders, the Parties to the above-entitled action submit this Joint Case Management Statement and [Proposed] Case Management Order. Plaintiffs Star Navigation Group Ltd. ("Star Navigation") and Viraf S. Kapadia (collectively referred to as "Plaintiffs") request that the Court adopt it as the Case Management Order in this case. Defendant AMS requests that this Court defer a decision on whether to adopt this Case Management Order until the Court rules on AMS's Motion to Dismiss Star's Second Amended Complaint (D.I. 67), determines the parties to this case, and determines whether it has subject matter and personal jurisdiction to proceed. Defendant has filed a Motion To Change Time of the CMC Hearing (D.I. 72), accordingly. 1. JURISDICTION AND SERVICE This is an action for patent infringement pursuant to 35 U.S.C. § 271 et seq. A. Plaintiffs' Position: This Court has subject matter jurisdiction pursuant to 28 U.S.C.

§ 1338. Personal jurisdiction is premised on Defendant's purposeful availment of this forum and any other basis identified through discovery. Venue is proper pursuant to 28 U.S.C. §§ 1391 and 1400. The Defendant Aeromechanical Services Ltd. has been served. B. Defendant's Position: Defendant AMS contends that this Court does not have either

subject matter or personal jurisdiction, for at least the reasons set forth in AMS's Motion to Dismiss Star's Second Amended Complaint (D.I. 67). AMS believes that Star has failed to cure the subject matter jurisdictional defects pursuant to the Court's Order on April 8, 2008. Namely, Star failed to join Mr. Vieira as a party to this action and did not obtain Court order to join him as an involuntarily plaintiff. In addition, AMS believes that it does not have sufficient contacts with the State of California such that this Court has personal jurisdiction. AMS's Motion to Dismiss was filed May 12, 2008, and is scheduled to be heard on June 20, 2008. 2. FACTS A. Plaintiffs' Position: Plaintiff Star Navigation Group Ltd. (Star Navigation) is a

Canadian corporation located in Toronto, Ontario Canada. Star Navigation provides computer systems, hardware, and software to the aviation industry for in-flight monitoring of aircraft. U.S.
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Patent No. 7,113,852 (the '852 Patent) issued on September 26, 2006 to co-inventors Viraf S. Kapadia and Hilary Vieira, who granted an exclusive license to Star Navigation. Mr. Kapadia voluntarily chose to join the present suit as a co-plaintiff pursuant to the Court's Order of April 8, 2008. Mr. Vieira refused to join the present action voluntarily and thus has been joined as an involuntary plaintiff pursuant to that Order. Defendant Aeromechanical Services Ltd. (AMS) is a Canadian corporation located in Calgary, Alberta Canada. AMS sells and offers for sale its Automated Flight Information Reporting System (AFIRS), which gathers, stores, and transmits data from aircraft and delivers that information to AMS's customers. AMS has at least two publiclyknown customers in the United States: Aloha Airlines and North American Airlines. Plaintiffs' believe that the principal factual issues presently in dispute include the following: · · Whether Defendant's Automated Flight Reporting System infringes the '852 Patent. Whether Defendant engaged in conduct that induced another to infringe the '852 Patent. · Whether Defendant engaged in conduct that contributed to infringement of the '852 Patent by another. · B. The amount of damages suffered by Star Navigation. Defendant's Position: AMS is a Canadian corporation located in Calgary, Alberta

Canada. AMS is a provider of solutions to allow airlines to monitor and manage aircraft operations anywhere, anytime in real-time ­ reducing costs and improving efficiency. AMS's primarily services airlines outside of the U.S. On September 19, 2007, Star filed this action, alleging infringement of the `852 Patent by AMS's AFIRS/UPTIME system. AMS believes that the principal factual issues presently in dispute include: (1) Whether Star has a license to the `852 Patent, and has the necessary rights in the `852 Patent to have standing to bring this lawsuit; (2) Whether there has been any infringement of the `852 Patent by AMS's AFIRS/UPTIME service; (3) Whether the `852 Patent is valid; (4) Whether the `852 Patent is enforceable; and
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(5) Whether, assuming liability, there have been any damages suffered by Star. LEGAL ISSUES A. Plaintiffs' Position: Plaintiffs' believe that the principal legal issues presently in

dispute include the following: · · B. Whether Defendant's infringement of the '852 Patent was willful. Whether this is an exceptional case within the meaning of 35 U.S.C. § 285. Defendant's Position: Defendant AMS believes that there presently are several

substantial legal disputes between the parties outside of Star's allegations of infringement. These issues are described in detail in AMS's currently pending Motion to Dismiss (D.I. 67), and are as follows: (1) Whether this Court has personal jurisdiction over AMS because AMS does not have the "minimum contacts with the forum" specified in Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); (2) Whether Star has complied with the Court's Order of April 8, 2008 because the correct parties have not been joined under Fed. R. Civ. P. 19(a); and (3) Whether Mr Vieira is a proper involuntary plaintiff to this action under Rule 19, F.R.C.P. Subject to the jurisdictional issues identified above, AMS believes that the principal legal issues related to Star's infringement allegations are: (1) Whether AMS has infringed the `852 Patent; (2) Whether the `852 Patent is valid under one or more of 35 U.S.C. §§ 101, 102, 103 and/or

(3) Whether the `852 Patent is enforceable; and (4) Whether this is an exceptional case within the meaning of 35 U.S.C. § 285. MOTIONS A. Prior Motions: Defendant AMS filed a Motion to Dismiss Star's Complaint (D.I. 18)

on December 3, 2007, which was removed from the Court's docket when Star filed a First Amended Complaint (D.I. 28) on December 18, 2007. AMS then filed a Motion to Dismiss Star's First Amended Complaint (D.I. 29) on December 21, 2007, which the Court granted with leave to amend
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the complaint on April 8, 2008. There were no other prior motions. B. Pending Motions: Defendant AMS filed a Motion to Dismiss Star's Second

Amended Complaint (D.I. 67) on May 12, 2008, to be heard on June 20, 2008. AMS also filed a Motion to reset the date of the CMC hearing to July 25, 2008, to give the Court time to decide AMS's pending Motion to Dismiss. There are presently no other pending motions. C. Anticipated Motions: The Parties intend to file a proposed Stipulated Protective

Order governing the exchange of confidential information in discovery. 5. AMENDMENT OF PLEADINGS A. Plaintiffs' Position: Plaintiffs reserve the right to amend their pleadings to address

additional claims after adequate discovery. Plaintiffs propose February 1, 2009 as the deadline to amend the pleadings. B. Defendant's Position: Defendant AMS has not yet answered the complaint because

it has filed a Motion to Dismiss Star's Second Amended Complaint. If required to answer, AMS reserves its rights to amend its pleadings to address additional defenses, or counterclaims, after adequate discovery. AMS proposes to set a deadline to amend the pleadings at 30 days after the end of fact discovery, determined according to the schedule in Section 17, below. 6. EVIDENCE PRESERVATION The parties have instituted and have maintained a "litigation hold" to preserve all potentially relevant evidence in the case. 7. DISCLOSURES The Parties are fully and timely complying with the initial disclosure requirements of Federal Rule of Civil Procedure 26(a) by serving the required Disclosures simultaneously with the filing of this Statement. Supplemental document production in connection with initial disclosures will be made reasonably after entry of a proposed Stipulated Protective Order by the Court. Defendant AMS believes all further disclosures and discovery shall be stayed pending the Court's ruling on AMS's Motion to Dismiss. Plaintiffs believe discovery should not be stayed.

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8.

DISCOVERY No discovery has been taken to date. Counsel for the Parties have met and conferred

regarding the issues specified in Federal Rule of Civil Procedure 26(f). A. Written Discovery 1. Plaintiffs' Position: Plaintiffs will propound written discovery requests

consistent with the Federal Rules of Civil Procedure. Plaintiffs see no reason to modify those limitations governing written discovery at this time. Plaintiffs further intend to depose one or more corporate representatives of Defendant pursuant to Federal Rule of Civil Procedure 30(b)(6), and any other person(s) with knowledge regarding Defendant's product, sales, and company operations. Plaintiffs also anticipate engaging in third-party depositions and depositions of Defendant's expert witness(es), if any. Plaintiffs see no reason to modify the limitations governing depositions as found in the Federal Rules of Civil Procedure and the Local Rules. Plaintiffs sought jurisdictional discovery in response to AMS' first motion to dismiss and may re-serve such requests. 2. Defendant's Position: If this case is not dismissed, Defendant AMS will

propound written discovery requests consistent with the Federal Rules of Civil Procedure. AMS does not believe modifications of those limitations governing written discovery is required at this time. AMS will conduct third-party discovery as necessary. AMS will also conduct discovery of Plaintiff's expert witness(es), if any. AMS does not believe jurisdictional discovery is warranted. B. Depositions 1. Plaintiffs' Position: Plaintiffs anticipate engaging in third-party depositions

and depositions of Defendant's expert witness(es), if any. Plaintiffs see no reason to modify the limitations governing depositions as found in the Federal Rules of Civil Procedure and the Local Rules. Plaintiffs requested depositions of AMS representatives for jurisdictional discovery purposes in response to AMS' first motion to dismiss. The parties have not yet agreed to go forward with such depositions. 2. Defendant's Position: Defendant AMS intends to depose one or more

corporate representatives of Plaintiff Star pursuant to Federal Rule of Civil Procedure 30(b)(6), of Plaintiff Mr. Viraf S. Kapadia, and any other person(s) - including Mr. Hilary Vieira - with
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knowledge regarding Star's operations, its purported business, patents and/or any other fact relating to the allegations of this action. AMS will conduct third-party deposition as necessary. AMS will also conduct depositions of Plaintiffs' expert witness(es), if any. AMS does not believe there is a current need to modify the limitations governing depositions as found in the Federal Rules of Civil Procedure and the Local Rules. AMS does not believe jurisdictional depositions are warranted. C. Schedule Regarding Exchange of Initial Disclosures

The Parties have fully and timely complied with the initial disclosure requirements of Federal Rule of Civil Procedure 26(a). See Section 7, supra. D. Anticipated Privilege/Work Product Issues

The Parties will enter into a mutual Protective Order to safeguard discovery products that are "confidential" or otherwise qualify for restricted inspection rights. Standard objections to disclosure of Attorney-Client Privilege and Work Product items will apply. E. Potential Discovery Disputes

At this early stage, the Parties do not foresee any specific discovery dispute. The Parties see no reason to modify the limitations governing discovery disputes as found in the Federal Rules of Civil Procedure. F. Preservation of Information and Scope of Electronic Documents Reviewed The parties have instituted a "litigation hold" to preserve all potentially relevant evidence including electronic evidence generated in the normal course of business. G. Form of Electronic Document Production The parties prefer to receive and produce electronic documents as PDF copies or other fixed electronic file copies unless agreed otherwise. 9. CLASS ACTIONS Not applicable. 10. RELATED CASES The Parties are unaware of any other related cases pending before this Court. There is presently an employment breach-of-contract case pending in the Ontario Superior Court of Justice brought by Involuntary Plaintiff Hiliary Vieira against Plaintiff Star Navigation. Defendant believes
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that Mr. Vieira seeks to have the Canadian Court set aside the license agreement for the '852 patent. Plaintiffs do not agree that Mr. Vieira's unproven allegation is a material part of that case. 11. RELIEF A. Plaintiffs' Position: Plaintiffs seek a permanent injunction, monetary damages,

trebled pursuant to 35 U.S.C. § 284, costs, prejudgment interest, and attorneys fees pursuant to 35 U.S.C. § 285. B. Defendant's Position: Defendant AMS has not yet answered the complaint because

it has filed a Motion to Dismiss Star's Second Amended Complaint (D.I. 67), but if AMS's Motion to Dismiss is not granted, AMS (without limitation) will seek denial of Plaintiff's requested relief, and seek a declaratory judgment that: (1) AMS does not infringe the `852 patent; (2) the `852 patent is invalid; (3) the `852 Patent is unenforceable; and (4) this case is exceptional so that AMS will be awarded its reasonable attorneys fees and costs. 12. SETTLEMENT AND ADR A. Joint Statement: The parties have complied with ADR L.R. 3-5 by filing a Notice of

Need for ADR Phone Conference. The parties have had no substantive settlement discussions. The parties believe that no motions or discovery with respect to ADR are needed. B. Plaintiffs' Position: Plaintiffs would be willing to participate in a settlement

conference before a magistrate judge. Plaintiffs do not believe that ADR, such as non-binding arbitration, early neutral evaluation, or mediation is appropriate in this case. C. Defendant's Position: AMS does not believe that a settlement conference would be

fruitful at this time, and should not occur prior to the Court deciding AMS's Motion to Dismiss. However, AMS would be willing to participate in an ENE, should the Court deny AMS's Motion to Dismiss. 13. CONSENT TO MAGISTRATE JUDGE FOR TRIAL The parties do not consent to assignment of this case to a United States Magistrate Judge to conduct all further proceedings, including trial and entry of judgment. 14. OTHER REFERENCES The parties believe that this case is not suitable for reference to binding arbitration, a special
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master, or the Judicial Panel on Multidistrict Litigation. 15. NARROWING OF ISSUES The parties will consider joint stipulations and other means to promote trial efficiency after adequate discovery. 16. EXPEDITED SCHEDULE The parties do not presently believe that this case is appropriate for an expedited schedule.: 17. SCHEDULING A. Plaintiffs' Position: Plaintiffs propose the following scheduling deadlines: 1. ADR session: June 23, 2008 2. Close of fact discovery: January 23, 2009 3. Serve expert disclosures and reports for the party bearing the burden of proof on an issue: February 23, 2009 4. Serve rebuttal expert disclosures and reports for the party not bearing the burden of proof on an issue: March 23, 2009 5. Close of expert discovery: April 23, 2009 6. Deadline for filing dispositive motions: May 29, 2009 7. Final pretrial conference: August 28, 2009 8. Trial: September 28, 2009 B. Defendant's Position: AMS proposes the following scheduling deadlines: 1. ENE (or other ADR) session: As soon as practicable after Court's ruling on AMS's Motion to Dismiss. 2. Close of fact discovery: 30 days after the Court issues a Claim Construction Order 3. Serve expert disclosures and reports for the party bearing the burden of proof on an issue: 60 days after the Court issues a Claim Construction Order 4. Serve rebuttal expert disclosures and reports for the party not bearing the burden of proof on an issue: 90 days after the Court issues a Claim Construction Order 5. Close of expert discovery: 120 days after the Court issues a Claim Construction Order 6. Deadline for filing dispositive motions: 30 days after the close of expert discovery
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7. Final pretrial conference: 90 days after the filing of dispositive motions 8. Trial: TBD TRIAL The parties request a trial by jury of all claims properly tried to a jury, and anticipate that trial will last approximately seven to ten trial days. 19. DISCLOSURES OF NON-PARTY INTERESTED ENTITIES OR PERSONS A. Plaintiffs' Position: Plaintiffs previously filed their Corporate Disclosure Statement

and Certification of Interested Parties. Pursuant to Federal Rule of Civil Procedure 7.1, Plaintiffs aver that the co-inventors and licensors of the '852 patent in suit, Viraf S. Kapadia and Hilary Vieira may have a financial interest in the subject matter in controversy. Further, Plaintiffs aver that there is no parent corporation or publicly held corporation owning ten percent (10%) or more of Plaintiff Star Navigation. Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named parties, there is no such interest to report. B. Defendant's Position: AMS previously filed its Corporate Disclosure Statement and

Certification of Interested Parties. In addition, pursuant to Federal Rule of Civil Procedure 7.1, AMS has no parent company and no publicly held corporation owns 10% or more of its stock. Further, pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named parties and those parties identified in the certification of Star, there is no such interest to report. 20. PATENT-RELATED ISSUES IN ACCORDANCE WITH PAT RULE 2-1 The parties propose: (1) no changes in the deadlines provided for in the Patent Local Rules; (2) to present live testimony at the Claim Construction Hearing; (3) no specific limits on discovery relating to claim construction, including depositions of witnesses, including expert witnesses (other than those already imposed by applicable rules); (4) that Star present first at the Claim Construction Hearing, followed by AMS; (5) that no Claim Construction Prehearing Conference is needed.

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Daniel P. Albers (admitted pro hac vice) John Wappel (admitted pro hac vice) BARNES & THORNBURG LLP One N. Wacker Drive, Suite 4400 Chicago, IL 60606 Phone No.: (312) 357-1313 Fax No.: (312) 759-5646 Email: [email protected] Email: [email protected] Christine H. McCarthy (admitted pro hac vice) BARNES & THORNBURG LLP 750 17th Street N.W., Suite 900 Washington, D.C. 20006-4675 Phone No.: (202) 289-1313 Fax No.: (202) 289-1330 Email: [email protected] Jeffrey K. Lee, CA Bar No. 212465 Kimberly A. Donovan, CA Bar No. 160729 GCA LAW PARTNERS LLP 1891 Landings Drive Mountain View, CA 94043 Phone No.: (650) 428-3900 Fax No.: (650) 428-3901 Email: [email protected] Email: [email protected] Attorneys for Plaintiff STAR NAVIGATION SYSTEMS GROUP LTD. By:__/s/ Jeffrey K. Lee__________________ Dated: May 16, 2008 Attorneys for Plaintiff STAR NAVIGATION SYSTEMS GROUP LTD.

Kevin C. McCann (SB# 120874) 55 Second Street Twenty-Fourth Floor San Francisco, CA 94105 United States of America Telephone: (415) 856-7000 Facsimile: (415) 856-7100 Email: [email protected] Robert M. Masters (admitted pro hac vice) Timothy P. Cremen (admitted pro hac vice) Bhaskar Kakarla (admitted pro hac vice) 875 15th St., N.W. Washington, DC 20005 Telephone: (202) 551-1700 Facsimile: (202) 551-1705 Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Defendant AEROMECHANICAL SERVICES LTD. By:__/s/ Timothy P. Cremen (by permission)___ Dated: May 16, 2008 Attorneys for Defendant AEROMECHANICAL SERVICES LTD.

CASE MANAGEMENT ORDER The Case Management Statement and Proposed Order above is hereby adopted by the Court as the Case Management Order for this case, and the Parties are ordered to comply herewith. IT IS SO ORDERED

DATED:_________________________

_______________________________ MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE

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ATTESTATION I, Jeffrey K. Lee, am counsel for Plaintiffs Star Navigation Systems Group Ltd. and Viraf S. Kapadia, and the registered ECF user whose username and password are being used to file this document. In compliance with General Order 45 X.B, I hereby attest that the above-identified counsel for Defendant Aeromechanical Services Ltd., concurred in this filing.

Dated: May 16, 2008 By: /s/ Jeffrey K. Lee .

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CERTIFICATE OF SERVICE The foregoing document has been filed with the Court this day though the Court's Electronic Case Filing system, which will provide electronic notice and/or service upon the parties listed below: Kevin C. McCann Paul, Hastings, Janofsky & Walker LLP 55 Second Street Twenty-Fourth Floor San Francisco, CA 94105 Telephone: (415) 856-7000 Fax: (415) 856-7100 E-mail: [email protected] Robert M. Masters Timothy P. Cremen Bhaskar Kakarla Paul, Hastings, Janofsky & Walker LLP 875 15th Street, N.W. Washington, DC 20005 Telephone: (202) 551-1700 Fax: (202) 551-1705 E-mail: [email protected] E-mail: [email protected] E-mail: [email protected] Attorneys for Defendant AEROMECHANICAL SERVICES LTD.

. /s/ Tina Ernst

.

CHDS01 465496v1

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