Opinion
2:22-cv-00828-CDS-BNW
12-13-2022
ALLEGIANT TRAVEL COMPANY, Plaintiff, v. R2 SOLUTIONS LLC, Defendant.
Joseph R. Ganley (5643) Brenoch R. Wirthlin (10282) HUTCHISON & STEFFEN, PLLC Edward R. Nelson III Christopher G. Granaghan John P. Murphy Carder W. Brooks NELSON BUMGARDNER CONROY PC Attorneys for Defendant R2 Solutions LLC
Joseph R. Ganley (5643)
Brenoch R. Wirthlin (10282) HUTCHISON & STEFFEN, PLLC
Edward R. Nelson III
Christopher G. Granaghan John P. Murphy
Carder W. Brooks
NELSON BUMGARDNER CONROY PC
Attorneys for Defendant R2 Solutions LLC
JOINT STIPULATION TO AMEND SCHEDULING ORDER TO CANCEL CLAIM CONSTRUCTION PROCEEDINGS
Plaintiff Allegiant Travel Company (“Allegiant”) and Defendant R2 Solutions, LLC (“R2”) jointly submit this stipulation to amend the scheduling order to cancel claim construction proceedings.
WHEREAS, Allegiant filed this case seeking a declaratory judgment of non-infringement of seven patents owned by R2 (ECF 1);
WHEREAS, R2 filed a motion to dismiss asserting that (1) there is no case or controversy between the parties; (2) even if there is a case or controversy, the Court should decline to exercise jurisdiction under the Declaratory Judgment Act; and (3) the Court lacks personal jurisdiction over R2 (ECF 29), and Allegiant filed its opposition to this motion;
WHEREAS, the Court has not yet ruled on R2's motion to dismiss;
WHEREAS, the Court's scheduling order includes claim construction-related deadlines, including deadlines for the parties to exchange terms for construction, exchange proposed constructions, and file a joint claim construction statement and claim construction briefs (ECF 39 at 4-5);
WHEREAS, Allegiant served its non-infringement contentions on September 6, 2022;
WHEREAS, R2 served its response to Allegiant's non-infringement contentions on October 25, 2022, in which R2 stated its position that Allegiant is not entitled to a declaratory judgment of noninfringement because there is no justiciable controversy, the Court lacks personal jurisdiction over R2, and, even if the Court has subject-matter jurisdiction, it should not exercise it;
WHEREAS, R2 also stated in its non-infringement contentions that it declined to contravene any other statements in Allegiant's non-infringement contentions or to assert a claim for patent infringement to avoid creating the case or controversy that R2 maintains does not exist;
WHEREAS, R2 filed a Motion to Modify Local Patent Rules to Cancel Claim Construction Proceedings and to Amend the Scheduling Order Accordingly (“Motion to Modify Local Patent Rules”) asserting that claim construction is unnecessary in view of R2 not asserting a claim for infringement (ECF 60);
WHEREAS, R2 stated in its Reply in Support of its Motion to Modify Local Patent Rules (“Reply”) that R2 “is not raising, and will not raise, infringement issues in this case” and “will not assert infringement here” (ECF 63 at 1);
WHEREAS, R2 maintains its position that (1) the Court lacks subject-matter jurisdiction because there is no case or controversy between the parties; (2) even if there is a case or controversy, the Court should decline to exercise jurisdiction under the Declaratory Judgment Act; and (3) the Court lacks personal jurisdiction over R2;
WHEREAS, in view of R2's representations in its Reply that R2 declines to assert infringement in this case even upon denial of R2's motion to dismiss and that R2 will only oppose summary judgment of non-infringement on the grounds asserted in R2's motion to dismiss and its response to Allegiant's non-infringement contentions, Allegiant no longer opposes modifying the case schedule to cancel claim construction proceedings. As set forth in Allegiant's opposition to R2's motion to dismiss, it is Allegiant's position that this Court has subject matter jurisdiction and personal jurisdiction as a result of R2's actions that prompted Allegiant's filing of the complaint for declaratory judgment relief, said actions causing a case or controversy for this Court to resolve. Allegiant agrees that it is not necessary for the Court to evaluate claim construction in order for the Court to issue declaratory judgment of noninfringement. In the motion for summary judgment of non-infringement that Allegiant will file, Allegiant will rely upon R2's statements in its Reply and this stipulation.
IT IS HEREBY AGREED AND STIPULATED by and between Allegiant and R2 that the Court enter an order removing the following deadlines from the scheduling order;
• Submit Joint Claim Construction and Prehearing Statement
• Opening Claim Construction Brief
• Response to Claim Construction Brief
• Reply Claim Construction Brief and Matter Submitted to Court for Hearing
• Claim Construction Tutorials, Hearing, and Order from the Court
IT IS FURTHER HEREBY AGREED AND STIPULATED by and between Allegiant and R2 that R2's Motion to Modify Local Patent Rules to Cancel Claim Construction Proceedings and to Amend the Scheduling Order is withdrawn. Should the Court wish to discuss this stipulation with counsel or case status, the parties remain available for the hearing scheduled for December 19, 2022, but otherwise respectfully submit that the hearing can be canceled.
IT IS SO STIPULATED.
ORDER
IT IS ORDERED that ECF No. 64 is GRANTED.
IT IS FURTHER ORDERED that ECF No. 60 is withdrawn, per the parties' request.
IT IS FURTHER ORDERED that the hearing set for 12/19/2022 is VACATED.
IT IS SO ORDERED.