Calypso Wireless (fka CLYW)

[conagra]

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,

Plaintiffs-Counterclaim Defendants,

v.

T-MOBILE USA, INC., Defendant-Counterclaim Plaintiff.

Case No. 2:08-cv-441-TJW-CE Jury Trial Demanded

JOINT MOTION TO EXTEND SCHEDULE AND RESET MARKMAN HEARING AND TRIAL DATES AND TO PERMIT THE PARTIES TO RENEGOTIATE THE DOCKET CONTROL AND DISCOVERY ORDERS
Plaintiffs Calypso Wireless, Inc. (“Calypso”) and Drago Daic (“Daic”) and Defendant T-Mobile USA, Inc. (“T-Mobile”), by and through their respective attorneys, respectfully submit this Joint Motion to Extend Schedule and Reset Markman Hearing and Trial Dates and to Permit the Parties to Renegotiate the Docket Control and Discovery Orders. Due to the stays caused by withdrawal of Plaintiffs’ counsel and subsequent disputes between Plaintiffs regarding ownership of the patent-in-suit, the parties respectfully submit that it would be prejudicial as well as inefficient to maintain the current schedule. The parties show the Court as follows:

On August 13, 2009, this Court entered a Docket Control Order (“DCO”) for the above-captioned case, setting the Markman hearing and trial dates for June 15, 2010 and May 2, 2011, respectively. (D.I. 34).
The Court also entered a Discovery Order on August 21, 2009. (D.I. 35). The Discovery Order provided, among other things, that the parties were to file their respective Initial
Disclosures on September 25, 2009, and were to produce all documents relevant to the pleaded claims or defenses in this action by October 4, 2010. (Id.).
Pursuant to the DCO, Plaintiffs were to serve their L.P.R. 3-1 and 3-2 Disclosures (“Infringement Contentions”) on September 11, 2009, and Defendant was to serve its L.P.R. 3-3 and 3-4 Disclosures (“Invalidity Contentions”) three months later, on December 11, 2009. (D.I. 34).
Plaintiffs did not serve their infringement contentions by September 11, 2009, in accordance with the terms of the DCO. Instead, on September 16, 2009, counsel for Plaintiffs filed a motion to withdraw as counsel, (D.I. 36), and on September 18, 2009, Plaintiffs requested that the case be stayed for 90 days while they sought to retain new counsel. (D.I. 41).
On September 28, 2009, the court granted counsel’s motion to withdraw and stayed the case for 30 days to permit Plaintiffs’ to find new counsel. (D.I. 48). At that time, the Court also ordered the parties to renegotiate a schedule once the stay was lifted.
On October 20, 2009, Calypso requested that the stay be extended an additional 60 days.
On October 23, 2009, the Court stayed the case for an additional 21 days in light of Calypso’s inability to retain new counsel. (D.I. 54).
8. New counsel for Daic made an appearance on October 23, 2009. (D.I. 53).

On November 12, 2009, Calypso requested that the stay be extended until December 4, 2009.
On December 4, 2009, the Court denied Calypso’s request for a further stay of the case and ordered that it retain counsel within 5 days. (D.I. 64). New counsel for Calypso made an appearance that day. (D.I. 65).
On November 19, 2009, Daic filed a motion to substitute a party and temporarily stay the case. (D.I. 57). Daic subsequently withdrew this motion on December 11, 2009. (D.I. 74).
On January 13, 2010, Calypso served infringement contentions on T-Mobile. Calypso did not serve the documents required under Local P.R. 3-2, and the infringement contentions were signed only by Calypso.1
On January 13, 2010, Calypso filed a motion for a temporary restraining order and preliminary injunction. (D.I. 89). The Court granted this motion that same day. (D.I. 91).
Also on January 13, 2010, Calypso filed a motion for leave to file a second amended complaint, adding cross-claims against its co-Plaintiff Daic and third-party claims against Jimmy Williamson, P.C. and Kelly Stephens. (D.I. 88). The Court granted this motion on January 25, 2010. (D.I. 101).
On February 2, 2010, Calypso filed a brief in support of its Motion for a Preliminary Injunction. (D.I. 106). Calypso subsequently withdrew this motion on February 9, 2010. (D.I. 112).
On February 8, 2010, Plaintiffs submitted a Joint Stipulation in which Plaintiffs agreed, among other things, that Drago Daic and Jimmy Williamson, P.C. would cease their attempt to sell Calypso’s intellectual property, including the Patent-in-Suit, and undo a purported assignment thereof. Plaintiffs then moved to cancel the preliminary injunction hearing scheduled for February 10, 2010. (D.I. 111).
1 The parties agree that T-Mobile does not waive any objections it may have to the sufficiency of Plaintiffs’ disclosures pursuant to Local P.R. 3-1 and 3-2, which cannot be fully determined until Plaintiffs have completed their disclosures pursuant to Local P.R. 3-2.
On February 9, 2010, the Court cancelled the preliminary injunction hearing and granted Calypso’s motion to withdraw its motion for a preliminary injunction. (D.I. 113).
Counsel for the parties have met and conferred on February 5, 2010, regarding a schedule going forward and have determined that Plaintiffs will be able to complete their L.P.R. 3-1 and 3-2 disclosures by March 15, 2010.
In order to avoid prejudice to T-Mobile, the parties agree that T-Mobile should be allotted at least as much time to serve its responsive L.P.R. 3-3 and 3-4 disclosures as it was allotted under the original schedule governing the case, three months.
The parties further agree that it would promote the efficient resolution of this case to begin claim construction deadlines after infringement contentions and invalidity contentions had been exchanged, so that the parties may use such discovery to narrow the claims to be asserted and the terms to be construed.
Accordingly, the parties hereby propose that Plaintiffs Calypso and Daic shall serve their full L.P.R. 3-1 and 3-2 disclosures on March 1, 2010.
The parties further propose that Defendant shall serve its L.P.R. 3-3 and 3-4 Disclosures on June 15, 2010.
Additionally, the parties propose that claim construction deadlines shall begin on August 1, 2010, likewise mirroring the time periods set forth in the DCO.
Owing to the nearly six-month delay in the start of discovery thus far, the parties hereby request a new Markman hearing date that will establish claim construction deadlines that fall after infringement contentions and invalidity contentions have been exchanged, in August 2010.
The parties also request a new trial date be set that takes into account the almost six-month delay in discovery so far, so as to permit the parties sufficient time to conduct fact and expert discovery, as well as to file dispositive motions and pretrial motions, if necessary.
The parties hereby request that the Court issue new Markman and trial dates and grant the parties leave to submit a new Docket Control Order and a new Discovery Order that will reflect these new Markman and trial dates.
The parties respectfully request that the parties be permitted to submit the new Docket Control Order and Discovery Order within two weeks after the Court issues the new Markman and trial dates.
T-Mobile joins in this request without prejudice to its pending Motion to Transfer Venue to the Western District of Washington, (D.I. 17), Motion to Strike Plaintiffs’ Answer to T-Mobile’s Counterclaims, (D.I. 58), and its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to Prosecute, (D.I. 109). February 24, 2010 Respectfully submitted,
/s/ Timothy W. Johnson /s/ Anne Champion Guy E. Matthews (lead attorney) Josh A. Krevitt (lead attorney) State Bar. No. 13207000 N.Y. Bar No. 2568228 Timothy W. Johnson Benjamin Hershkowitz State Bar No. 24002366 N.Y. Bar No. 2600559 Matthew C. Juren Anne Champion State Bar No. 24065530 N.Y. Bar No. 4425237

MATTHEWS, LAWSON & GIBSON, DUNN & CRUTCHER LLP

BOWICK, PLLC 200 Park Avenue 2000 Bering Drive, Suite 700 New York, New York 10166 Houston, Texas 77057 Telephone: [phone]

Telephone: [phone] Facsimile: [phone]

Facsimile: [phone] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

Attorneys for Plaintiff Drago Daic Attorneys for Defendant T-Mobile USA, Inc.

/s/ Anthony P. Miller Paul V. Storm (lead counsel) State Bar. No. 19325350 Anthony P. Miller State Bar No. 24041484 Michael Leach State Bar No. 24065598 STORM LLP 901 Main Street, Suite 7100 Dallas, Texas 75202 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail]

Attorneys for Plaintiff Calypso Wireless, Inc.

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this document was served on all counsel who have consented to electronic service on February 24, 2010.

/s/ Anne Champion

CERTIFICATE OF CONFERENCE
The undersigned certifies that Anthony Miller, counsel for the Plaintiff Calypso Wireless, Inc., Timothy Johnson, counsel for Plaintiff Drago Daic, and undersigned counsel for Defendant T-Mobile USA, Inc. met and conferred regarding this joint motion and agreed upon its submission.

/s/ Anne Champion

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
CALYPSO WIRELESS, INC. & DRAGO DAIC,

Plaintiffs-Counterclaim Defendants,

v.

T-MOBILE USA, INC., Defendant-Counterclaim Plaintiff.

Case No. 2:08-cv-441-TJW-CE Jury Trial Demanded

[PROPOSED] ORDER GRANTING JOINT MOTION TO EXTEND SCHEDULE AND RESET MARKMAN HEARING AND TRIAL DATES AND TO PERMIT THE PARTIES TO RENEGOTIATE THE DOCKET CONTROL AND DISCOVERY ORDERS
Upon consideration of the joint motion of Plaintiffs Calypso Wireless, Inc. (“Calypso”) and Drago Daic (“Daic”) and Defendant T-Mobile USA, Inc. (“T-Mobile”), to reset the Markman and trial dates and to permit the parties to submit a new Docket Control Order and a new Discovery Order, this Court finds good cause for the motion and hereby orders the parties to submit new Docket Control and Discovery Orders within two weeks after this Court issues new dates for the Markman hearing and trial dates in this action.