Free Reply - District Court of Arizona - Arizona

1 LAW OFFICES E
RONAN & FIRESTONE, PLC ‘
2 9300 E. RAINTREE DRIVE, SUITE 120
SCOTTSDALE, ARIZONA 85260
3 (480) 222-9100 W
Merrick B. Firestone, SB #012138 L
4 Veronica L. Manolio, SB #020230
Attorneys for the Nelcela Defendants
5
6 UNITED STATES DISTRICT COURT 1
7 IN AND FOR THE DISTRICT OF ARIZONA 0
8 Merchant Transaction Systems, Inc., No. 02-CV—l954 - PHX—MHM I
9 Plaintiff, NELCELA, INC., LEN CAMPAGNA
10 vs. AND ALEC DOLLARHlDE’S
REPLY TO THE JOINT PARTIES’
H Nelcela, Inc., an Arizona corporation; "SUPPLEMENTAL RESPONSE” TO
Len Campagna, an Arizona resident; NELCELA’S RENEWED MOTION FOR
12 Alec Dollarhide, an Arizona resident; et. al., JUDGMENT AS A MATTER OF LAW
OR , IN THE ALTERNATIVE,
13 Dafcndanm MOTION FOR A NEW TRIAL
And Related Counterclaims, Cross—Claims .
14 and Third_Pmy C1aimS· (The Honorable Mary H. Murguia)
16 Although the Joint Parties are not entitled to a “Supplemental Response," they have made
17 a very valid point in having filed that supplement. The Joint Parties did cite Apple Computer, Inc.
18 v. Microsojt Corp., 35 F.3d 143 5 (9th Cir. 1994) in their summary judgment moving papers. Despite
19 having cited the relevant case, though, the Joint Parties wholly failed to give this Court the proper
20 Apple analysis. Apple holds that it was Lexce1’s burden, as Plaintiff, to provide the Court with the P
21 proper guidance to determine whether copying took place as a matter of law. Apple, supra, 35 F.3d
22 at 1443 (Lexcel was supposed to identify for the Court the exact source(s) of the alleged similarity
23 between its work and Ne1cela’s so that the Court could perform the proper analytic dissection to
24 determine if any ofthe alleged copying was done in “protected" features.) Because the Joint Parties
2 5 fully knew the Apple analysis, their "supplem ental response" only proves that they must have hidden
26 the relevant Apple standard (analytic dissection) of Apple from both Nelcela and from this Court.
Case 2:02—cv—01954-IVIHIVI Document 537 Filed 06/14/2007 Page 1 of 3

1 This Court has been consistently aggravated with Nelcela, but it is now most apparent that
2 it was the Joint Parties who misled the Court on the applicable law. Not only was it the Joint Parties’
3 duty (as Plaintiff) to properly lead this Court to apply Apple, but the Joint Parties knew full well
4 when Nelcela raised the Apple standard of analytic dissection that they had hoodwinked the Court. {
5 The Joint Parties knew at the summary judgment phase that they did not provide a full Apple
6 analysis; they knew prior to trial that the Court had misapplied the analytic dissection in its rulings; y
7 they knew during jury instructions that the Court had been misled on the proper standards of law;
8 and, they have continued to argue in bad faith. This Court should not tolerate these continued games. {
9 RESPECTFULLY SUBMITTED this 14‘h day of June, 2007.
10 RONAN & FIRESTONE, PLC
11 %
12 /s/ Merrick B. Firestone
Merrick B. Firestone i
13 Veronica L. Manolio {
9300 E. Raintree Drive, Suite 120 Q
14 Scottsdale, Arizona 85260
Attorneys for the Nelcela Defendants
15 i
16 ORIGINAL tiled electronically with the Clerk’s Office
‘ and COPIES electronically transmitted to the following
17 CM/ECF registrants this same date to: {
18 Nicholas J. DiCar1o
ndicarl.ogcz}thedcpiinncom J
19 Local Counsel for Merchant Transaction Systems J
20 William McKinnon
mail gébwilli amnic.kinnon.com .
21 Attorney for Merchant Transaction Systems 1
22 Peter D. Baird J
pbaii·d§c5lrlau¤.con3 T
23 Robert H. Mcliirgan
rn. ickirgan(a)lrlaxv.com
24 Richard A. Halloran
Rha llgrangmltlavt/.c<>m
25 Kimberly Demarchi
Kderng chittolrlarancom
26 Attorneys for POST and Ebocom
V 2
Case 2:02—cv—01954-IVIHIVI Document 537 Filed 06/14/2007 Page 2 of 3

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3 Attorneys for Lexcel, Inc. 1
By: /s/ Diana Renteria 1
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