Case 1:16-cv-03852-JPO Document 54 Filed 06/14/16 Page 1 of 2
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`New York
`Menlo Park
`Washington DC
`Sao Paulo
`London
`
`Paris
`Madrid
`Tokyo
`Beijing
`Hong Kong
`
`Davis Polk
`
`Dana M. Seshens
`
`Dav is Polk & Wardwel l LLP
`450 Lexington Avenue
`New York , NY 1001 7
`
`212 450 4855 tel
`212 70 1 5855 fax
`dana.seshens@davispolk.com
`
`Re:
`
`Comcast Corp., et al. v. Ravi Corp., et al., Civil Action No. 1: 16-cv-03852-JPO
`
`June 13, 2016
`
`The Honorable J. Paul Oetken
`United States District Judge
`Southern District of New York
`40 Foley Square
`New York , New York 10007
`
`Dear Judge Oetken :
`
`We represent Plaintiffs in the above-referenced matter and write briefly in response to
`Defendants' June 10, 2016 letter concerning their motion to dismiss. (ECF No. 52 .)
`
`First, Defendants misstate the holding , and relevance to this case , of the Supreme Court's
`decision in Atlantic Marine Construction Company, Inc. v. United States District Court for the
`Western District of Texas , 134 S. Ct. 568 (2013) . Atlantic Marine does not concern the "first
`filed " rule on which Defendants rely , and it nowhere refers to the "first filed forum. " Rather, the
`Court in Atlantic Marine held that "a forum-selection clause may be enforced by a motion to
`transfer under [28 U.S.C. § 1404(a)]," but not by a motion to dismiss under 28 U.S .C. § 1406(a)
`or Federal Rule of Civil Procedure 12(b)(3). Id. at 575 (emphasis added) . It did not hold , as
`Defendants represent, that a motion to transfer is the only proper way to enforce a forum
`selection clause. To the contrary , neither Atlantic Marine nor the first-filed rule renders improper
`Plaintiffs' efforts to enforce their contractual rights in the parties' agreed upon (and jurisdictionally
`proper) forum
`
`Second , Plaintiffs respectfully submit that Defendants' motion to dismiss should be heard on July
`12, 2016 or later. Contrary to Defendants' assertion , their motion is not "procedurally dispositive"
`and does not raise any threshold issue that would obviate the need to hear Plaintiffs' preliminary
`injunction motion , including because the first-filed rule does not apply where , as here. there are
`forum selection clauses mandating that litigation take place in New York . Moreover, Defendants
`are likely to make the same arguments in opposition to Plaintiffs' preliminary injunction motion
`that they have made in their motion to dismiss. Given that briefing on Defendants' motion will not
`be complete until July 5, 2016 and the parties already will be before the Court on related issues
`on July 12, 2016, Plaintiffs respectfully submit that the most efficient course would be to have
`Defendants' motion to dismiss argued on July 12, 2016 or later, subject. of course , to the Court's
`availability.
`
` Plaintiffs shall respond to the motion to dismiss
`(Dkt. No. 49) on or before June 27, 2016.
`Defendants may file a reply on or before July 5,
`2016.
` Counsel for the parties should be prepared to
`address the motion to dismiss at the hearing on
`July 12, 2016.
` So ordered: 6/13/16
`
`MEMO ENDORSED
`
`

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`Case 1:16-cv-03852-JPO Document 54 Filed 06/14/16 Page 2 of 2
`
`The Honorable J. Paul Oetken
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`2
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`June 13, 2016
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`We thank the Court for its consideration .
`
`Respectfully submitted ,
`
`Dana M. Seshens