Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Currently before the Court is the Joint Parties' Proposed Interim Case Management Schedule (Dkt.#550) and Nelcela, Inc., Len Campagna and Alec Dollarhide's ("Nelcela") Proposed Case Management Plan. (Dkt.#551). These submissions result from the ) ) ) Plaintiff, ) ) vs. ) ) Nelcela, Inc., and Arizona Corporation;) Len Campagna, an Arizona resident; Alec) Dollarhide, an Arizona resident; Ebocom,) Inc., a Delaware corporation; Post) Integrations, Inc., an Illinois corporation ) ) ) Defendants. _________________________________ ) ) And Related Counterclaims and Cross-) ) Claims and Third-Party Claims ) Merchant Transaction Systems, Inc., No. CV 02-1954-PHX-MHM ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

proceedings on August 15, 2007, at which time the Court gave the Parties until August 22, 2007 to submit a proposed case management plan to address the issues of "analytical dissection" and statute of limitations. (Dkt.#545). After meeting and conferring on these issues to determine if an agreed upon schedule could be established, the Joint Parties and Nelcela submitted separate proposed case management schedules. As such, the Court will dictate the schedule as to which these issues will be addressed.
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With respect to the issue of "analytical dissection" raised in Apple Computers, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994), the Court finds that the Joint Parties' proposed schedule is acceptable. Specifically, Lexcel, Inc., shall file with the Court no later than August 31, 2007, a statement of the elements and works of the Lexcel software at issue in this litigation and alleged to have been infringed and copied by Nelcela. See id (noting that plaintiff must identify the sources of the alleged similarity between its work and the defendant's work). Nelcela will then be permitted to file, by September 14, 2007, its opening brief challenging the elements and works identified by Lexcel, Inc. Any response will be due no later than September 28, 2007, with any reply filed by October 9, 2007. Contrary to Nelcela's argument, the Court does not see the need for simultaneous briefing on this issue and notes that Nelcela will be permitted to file both an opening and reply brief. In addition, with respect to the statute of limitations issue, the Court has previously referenced the possibility of minimal discovery to permit the full development of this issue (Dkt.#383, pp.16-17). A such, the Court will permit documentary discovery on this issue to be concluded no later than October 15, 2007. Nelcela will be permitted to file any motion challenging the timeliness of the Lexcel Parties' claims by October 16, 2007, with any response by the October 30, 2007 and any reply to be filed by November 6, 2007. Accordingly, IT IS HEREBY ORDERED directing Lexcel, Inc., to file with the Court no later than August 31, 2007, a statement of the elements and works of the Lexcel software at issue in this litigation and alleged to have been infringed and copied by Nelcela. Nelcela will then be permitted to file, by September 14, 2007, its opening brief challenging the elements and works identified by Lexcel, Inc.. Any response will be due no later than September 28, 2007, with any reply filed by October 9, 2007. IT IS FURTHER ORDERED directing a limited period of documentary discovery regarding the statute of limitations issue to be concluded by October 15, 2007. Nelcela will be permitted to file any motion challenging the timeliness of the Lexcel Parties' claims by

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October 16, 2007. Any response will be due no later than October 30, 2007, with any reply by November 6, 2007. DATED this 28th day of August, 2007.

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