Case 1:23-cv-00758-JLH Document 25 Filed 01/18/24 Page 1 of 2 PageID #: 1192
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
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`302 658 9200
`302 658 3989 FAX
`
`RODGER D. SMITH II
`(302) 351-9205
`rsmith@morrisnichols.com
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`
`
`The Honorable Jennifer L. Hall
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`
`January 18, 2024
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`VIA ELECTRONIC FILING
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`
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`Re: Orca Security Ltd. v. Wiz, Inc., C.A. No. 23-0758 (JLH)
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`Dear Judge Hall:
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`I write on behalf of plaintiff Orca Security Ltd. in the above-captioned matter to
`ask the Court to require the parties to engage in substantive meet and confer conferences under
`both Fed. R. Civ. P. 16 and 26 so that a Rule 16(b) scheduling conference can be held with the
`Court, a case schedule can be entered, and discovery can commence without further delay.
`
`This action has been pending for over six months. Orca filed its initial complaint
`in this action on July 12, 2023 (D.I. 1), alleging direct, indirect, and willful patent infringement by
`defendant Wiz, Inc. As additional related patents issued, Orca amended its complaint twice, filing
`the operative Second Amended Complaint on October 10, 2023. (D.I. 13, 15). On November 21,
`2023, Wiz filed a motion to dismiss only the indirect and willful infringement claims of the Second
`Amended Complaint, but not challenging the claims of direct infringement in this case. (D.I. 17).
`Thus, even in the unlikely event that Wiz’s motion were granted with prejudice and indirect and
`willful infringement permanently dismissed from the action, the direct infringement claims would
`proceed. Wiz’s motion was fully briefed as of January 5, 2024 (D.I. 18, 22, 23).
`
`The Court often enters scheduling orders and permits discovery to proceed while
`motions to dismiss are pending. See, e.g., Autonomous Devices, LLC v. Tesla, Inc., C.A. No. 22-
`1466-MN, D.I. 17 (D. Del. Feb. 16, 2023) (three days after motion to dismiss briefing was
`completed, oral order requiring parties to confer and submit a proposed scheduling order); Kraft
`Foods Grp. Brands LLC v. TC Heartland LLC, C.A. No. 14-28, D.I. 32 (D. Del. Jan. 7, 2015) (oral
`order denying defendants’ request to stay entry of a scheduling order based on pending motion to
`dismiss); GlaxoSmithKline LLC v. Teva Pharms. USA, Inc., C.A. No. 14-878-LPS-CJB, D.I. 38
`(D. Del. Apr. 20, 2015) (entering scheduling order despite pending motion to dismiss the
`complaint); see also Kaavo Inc. v. Cognizant Tech. Sols. Corp., C.A. No. 14-1192-LPS-CJB, 2015
`WL 1737476, at *3 (D. Del. Apr. 9, 2015) (describing “the District Court’s preference that, in the
`main, cases should move forward—even in the face of a yet-to-be-resolved motion to dismiss”).
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`Case 1:23-cv-00758-JLH Document 25 Filed 01/18/24 Page 2 of 2 PageID #: 1193
`
`The Honorable Jennifer L. Hall
`January 18, 2024
`Page 2
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`Nevertheless, Wiz has refused to discuss a proposed scheduling order until its non-dispositive
`motion to dismiss is decided.
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`Given that this case has been pending for over six months, Orca respectfully
`requests that the Court compel the parties to confer under Rules 16 and 26 concerning a case
`schedule and to set a Rule 16(b) scheduling conference so that this case can move forward.
`
`Respectfully,
`
`/s/ Rodger D. Smith II
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`Rodger D. Smith II (#3778)
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`cc:
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`Clerk of Court (via hand delivery)
`All Counsel of Record (via electronic mail)
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