Free Proposed Jury Instructions - District Court of Arizona - Arizona

1 2 3 4 5 6 7

40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 734-3746 Telephone (602) 262-5311 Peter D. Baird (001978) ([email protected]) Robert H. McKirgan (011636) ([email protected]) Richard A. Halloran (013858) ([email protected]) Kimberly A. Demarchi (020428) ([email protected]) Attorneys for POST Integrations, Inc., et al.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Plaintiff, ) vs. ) ) Nelcela, Inc., et al., ) Defendants. ) ) ) ) ) And Related Counterclaims, Cross-Claims, ) and Third-Party Claims. ) ) No. CIV 02-1954-PHX-MHM NOTICE OF FILING PRELIMINARY INSTRUCTIONS AND BRIEF STATEMENT OF THE CASE (Assigned to The Honorable Mary H. Murguia)

8 Merchant Transaction Systems, Inc., 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

As ordered by this Court at the final pretrial conference on April 3, 2007, counsel for the Joint Parties have met and conferred with counsel for the Nelcela Parties regarding preliminary jury instructions and a brief statement of the case to be read to the jury pool during the voir dire process. The parties have agreed to request the following preliminary jury instructions, from the Ninth Circuit Manual of Model Jury Instructions ­ Civil: 1.1, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.13, 1.15. The parties have been unable to reach consensus on either a brief statement of the case or on other preliminary jury instructions describing the claims in this case and the narrow issue for resolution by the jury. The Joint Parties' object to the Nelcela Parties' proposed brief statement of the case and revised proposed jury instructions, docket no. 466, which were filed today. This Court instructed the parties to prepare a brief statement and preliminary instruction that reflected
Document 467 Filed 04/06/2007 Page 1 of 3

Case 2:02-cv-01954-MHM

1824451.1

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

the Court's finding that copying has occurred and that instructed the jury that its task would be to determine which software was written first. The Nelcela Parties' proposed statement and instructions do not even mention either the Court's finding or the narrow issue to be decided. Moreover, they mischaracterize the software at issue in this case, stating that only the "Nelcela Authorization System" and the "Nelcela Merchant System," as separate systems, are at issue despite this Court's recognition that Lexcel has claimed ownership of five separately copyrighted components of their own software system and that the Joint Parties intend to prove that the Lexcel software consists of related components including authorization and merchant systems. Moreover, the Nelcela Parties' proposals introduce inaccuracy, confusion, and resulting prejudice to the Joint Parties by (1) incorrectly stating that Lexcel Solutions, Inc. claims ownership of the software (statement, proposed instructions 1, 5, and 8); (2) providing a slanted description of the Joint Parties' settlement (proposed instruction 2); (3) incorrectly stating that "MTSI sued both Nelcela and Post Integrations," when Post was joined to a declaratory claim only and not in any claims of wrongdoing (proposed instruction 2); (4) incorrectly stating that only Lexcel will present evidence that Lexcel owns the software in the case (proposed instruction 2); (5) misstating the effect of copyright registration, which creates only a rebuttable presumption of validity (proposed instructions 3, 5, and 8). Each of these problems, which also existed in Nelcela's previously filed proposed instructions, is addressed in greater detail in the Joint Parties' written objections to those instructions, docket no. 450, which are hereby incorporated by reference. The Joint Parties respectfully request that their proposed brief statement of the case and proposed preliminary instructions, attached hereto as Exhibits A and B, be used instead. The Joint Parties' proposed language incorporates and tracks this Court's ruling in neutral language that will permit all parties to argue their positions to the jury without prejudice.

Case 2:02-cv-01954-MHM

Document 467 2 Filed 04/06/2007

Page 2 of 3

1824451.1

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

RESPECTFULLY SUBMITTED this 6th day of April, 2007 DICARLO CASERTA & PHELPS PLLC Nicholas J. DiCarlo and LAW OFFICES OF WILLIAM McKINNON By s/ William McKinnon William McKinnon Attorneys for Merchant Transaction Systems, Inc. and Gene and Tone Clothier LEWIS AND ROCA LLP By s/ Kimberly A. Demarchi Peter D. Baird Robert H. McKirgan Richard A. Halloran Kimberly A. Demarchi Attorneys for POST Integrations, Inc., Ebocom, Inc., Mary L. Gerdts, and Douglas McKinney BRYAN CAVE LLP By s/ George C. Chen George C. Chen Attorneys for Lexcel, Inc. and Lexcel Solutions, Inc.

CERTIFICATE OF SERVICE I hereby certify that on April 6, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing.

s/

Debi Garrett

Case 2:02-cv-01954-MHM

Document 467 3 Filed 04/06/2007

Page 3 of 3

1824451.1