Free Motion to Bifurcate - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Charles F. Hauff, Jr. (AZ Bar No. 014465) Douglas W. Seitz (AZ Bar No. 004258) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Attorneys for Eberle Design, Inc. and Electronic Devices, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Eberle Design, Inc., and Electronic Devices, Inc., Plaintiff/Counterdefendants, v. Reno A&E, Defendant/Counterplaintiff.

CIV 02 2575 PHX DGC (Lead) CIV 03 883 PHX DGC (Consolidated) JOINT MOTION TO BIFURCATE CONSIDERATION OF MOTION FOR AN AWARD OF ATTORNEYS' FEES AND NON-TAXABLE EXPENSES

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Plaintiffs/Counterdefendants Eberle Design Inc., and Electronic Devices, Inc. (collectively "Eberle") have sought an award of attorneys' fees on the basis that this is an exceptional case under 35 U.S.C. § 285. Defendant/Counterplaintiff Reno A&E's

("Reno") position is that this case is not an exceptional case and, therefore, no award of attorneys' fees should be made. It is likely that the reasonableness of the requested award will also be a disputed issue. The procedure set forth in Local Rule LRCiv 54.2 for claims for attorneys' fees and non-taxable expenses contemplates that the issues of eligibility, entitlement, and reasonableness of the requested award will all be briefed and determined at the same time. The purpose of this Motion is to request the Court to bifurcate the issue of reasonableness and to rule first on the issues of eligibility and entitlement. The parties would then brief the issue of reasonableness only if the Court were to decide that Eberle was entitled to an award of attorneys' fees. This would avoid the scenario in which the parties spend
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

significant amounts of time briefing the issue of reasonableness of the requested award only to have the Court rule that there is no entitlement to attorneys' fees. The Court clearly has the power to modify the procedures set forth in LRCiv 54.2 to suit the particular circumstances of the individual case. LRCiv 54.2(a) states that the procedures of the Rule apply "if the court does not establish other procedures for determining such fees," the time for the filing of a motion for attorneys' fees and related non-taxable expenses in LRCiv 54.2(b)(1) applies "[u]nless otherwise provided by statue or court order entered in an individual case," and the time for filing memoranda of points and authorities set forth in LRCiv 54.2(b)(2) and (3) applies "[u]nless otherwise ordered by the court." Under LRCiv 54.2 (b), Eberle's Memorandum in Support of its Motion for Award of Attorneys' Fees and Related Non-Taxable Expenses would be due 60 days from the entry of judgment. Pursuant to LRCiv 54.2(c) the memorandum would address the issues of eligibility, entitlement, and reasonableness of the requested award with the documentation supporting reasonableness required by LRCiv 54.2(d). The parties move the Court to modify the procedures of LRCiv 54.2 and to bifurcate consideration of the reasonableness of the requested award to be determined, if necessary, after the Court rules on the eligibility and entitlement issues as follows: 1. Eberle's Supporting Memorandum of Points and Authorities on the issues of eligibility and entitlement addressing the matters described in LRCiv 54.2(c)(1) and (2) shall be filed on or before December 5, 2005. The Response and Reply thereto shall be filed in accordance with Local Rule of Civil Procedure 7.2 (i.e., 10 days for the response and 5 days for the reply). 2. If the Court rules that Eberle is entitled to an award of attorneys' fees and

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non-taxable expenses, Eberle shall have fourteen (14) days following the Court's ruling to file a Memorandum of Points and Authorities and the supporting documentation setting forth the amount requested and discussing the reasonableness of that request in accordance with LRCiv 54.2(c)(3), (d), and (e). The Responsive Memorandum shall
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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

comply with LRCiv 54.2 (f) and the provisions of LRCiv 54.2 (b)(3) shall govern the timing of filing of the Responsive and Reply Memoranda. Good cause exists for granting this Joint Motion. Given the nature of this litigation, the parties will have to expend significant resources to prepare the supporting and controverting documentation required by LRCiv 54.2 (c)(3), (d), (e), and (f). If the Court were to find that attorneys' fees should not be awarded, then the parties would be spared the burden and expense of preparing those filings. Accordingly, under the facts

and circumstances of this case, the parties submit that good cause exists for the granting of this Joint Motion and respectfully request that the Court enter an Order consistent with the schedule set forth herein. RESPECTFULLY SUBMITTED this 28th day of November, 2005. SNELL & WILMER L.L.P.

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By: s/Charles F. Hauff, Jr Charles F. Hauff, Jr. Douglas W. Seitz Attorneys for Plaintiff/Counterdefendants Eberle Design, Inc. and Electronic Devices, Inc. WATSON & ROUNDS

By: s/Michael D. Rounds Michael D. Rounds 5371 Kietzke Lane Reno, Nevada 89511 Attorneys for Defendant/Counterplaintiff Reno A&E

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE
I hereby certify that on November 28, 2005, I electronically transmitted the foregoing Joint Motion to Bifurcate Consideration of Motion for an Award of Attorneys' Fees and NonTaxable Expenses to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF participants:

Michael D. Rounds, Esq. WATSON & ROUNDS 5371 Kietzke Lane Reno, Nevada 89511 Henry C. Bunsow, Esq. HOWREY, SIMON, ARNOLD & WHITE 525 Market Street Suite 3600 San Francisco, CA 94105 George C. Chen, Esq. BRYAN CAVE Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406
I further certify that on November 28, 2005, I served a courtesy copy of the aforementioned documents and transmittal of a Notice of Electronic Filing by mail on the following: The Honorable David G. Campbell United States District Court 401 West Washington Street Phoenix, AZ 85003-2156 DATED this 28th day of November, 2005.

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SNELL & WILMER L.L.P.

By: s/Charles F. Hauff, Jr. Charles F. Hauff, Jr. Douglas W. Seitz Attorneys for Plaintiff/Counterdefendants Eberle Design, Inc. and Electronic Devices, Inc.

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