Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 1 of 16 PageID #: 1796
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`HTC CORPORATION and
`HTC AMERICA, INC.
`
`Plaintiffs
`
`v.
`
`INNOVATION SCIENCES, LLC,
`
`Defendant
`
`
`
`Case No.: 4:20-cv-00180
`
`
`
`§
`§
`§
`§
`§
`§
`
`PLAINTIFF HTC CORPORATION’S OPPOSITION TO DEFENDANT INNOVATION
`SCIENCES, LLC’S MOTION TO STRIKE OR FOR ALTERNATE RELIEF
`
`
`
`
`
`
`

`

`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 2 of 16 PageID #: 1797
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`TABLE OF CONTENTS
`
`I. 
`Introduction ............................................................................................................................. 1 
`II.  Legal Standard ........................................................................................................................ 2 
`III.  Argument ............................................................................................................................. 3 
`A. 
`Patentee misrepresents HTC’s position on venue ............................................................ 3 
`B. 
`Rule 15(a) permits amendment once as a matter of course to add or drop parties .......... 6 
`C. 
`Patentee’s request “for alternate relief” should be denied ............................................... 9 
`D. 
`HTC Corp.’s First Amended Complaint renders Patentee’s Original Answer a legal
`nullity .......................................................................................................................................... 9 
`IV.  Conclusion ......................................................................................................................... 10 
`
`
`i
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`
`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 3 of 16 PageID #: 1798
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Aguilar v. Tex. Dep’t of Criminal Justice, Institutional Div.,
`160 F.3d 1052 (5th Cir. 1998) ...................................................................................................2
`
`Ali v. Carnegie Inst. of Wash.,
`684 F. App’x 985 (Fed. Cir. 2017) ............................................................................................2
`
`Am. S. Ins. Co. v. Buckley,
`748 F. Supp. 2d 610 (E.D. Tex. 2010) .......................................................................................2
`
`United States ex rel. Bias v. Tangipahoa Par. Sch. Bd.,
`816 F.3d 315 (5th Cir. 2016) ...................................................................................................10
`
`Broyles v. Corr. Med. Servs.,
`No. 08-1638, 2009 U.S. App. LEXIS 5494 (6th Cir. Jan. 23, 2009) .........................................8
`
`Galustian v. Peter,
`591 F.3d 724 (4th Cir. 2010) .....................................................................................................8
`
`Harrison v. Prather,
`404 F.2d 267 (5th Cir. 1968) .....................................................................................................6
`
`Hornsby v. Salvation Army,
`No. H-10-CV-04277, 2011 U.S. Dist. LEXIS 167500 (S.D. Tex. Oct. 4, 2011) ......................2
`
`iFLY Holdings LLC v. Indoor Skydiving Germany Gmbh,
`No. 2:14-cv-01080-JRG-RSP, 2016 U.S. Dist. LEXIS 194013 (E.D. Tex. Mar.
`14, 2016) ....................................................................................................................................3
`
`McLellan v. Mississippi Power & Light Co.,
`526 F.2d 870 (5th Cir. 1976), modified on other grounds, 545 F.2d 919 (5th
`Cir. 1977) ...................................................................................................................................7
`
`McMurdy v. Bos. Sci. Corp.,
`No. 2:19-CV-00301-JRG, 2019 U.S. Dist. LEXIS 199861 (E.D. Tex. Nov. 19,
`2019) ........................................................................................................................................10
`
`Potter v. Cardinal Health 200, LLC,
`381 F. Supp. 3d 729 (E.D. Tex. 2019) .....................................................................................10
`
`United States ex rel. Precision Co. v. Koch Indus., Inc.,
`31 F.3d 1015 (10th Cir. 1994) ...............................................................................................7, 8
`
`ii
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`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 4 of 16 PageID #: 1799
`
`Robin v. City of Frisco,
`No. 4:16-CV-00576, 2017 U.S. Dist. LEXIS 108303 (E.D. Tex. July 13,
`2017) ..........................................................................................................................................3
`
`U.S. Bank N.A. v. Harris,
`2017 U.S. Dist. LEXIS 172701 (E.D. Tex. Sept. 29, 2017) ....................................................10
`
`Va. Innovation Scis., Inc. v. Amazon.com, Inc.,
`Civ. No. 4:18-cv-00474-ALM (E.D. Tex. Nov. 18, 2019) ........................................................9
`
`Williams v. Taylor Seidenbach, Inc.,
`958 F.3d 341, 2020 U.S. App. LEXIS 14214 (5th Cir. 2020) (en banc) ...........................1, 6, 7
`
`Other Authorities
`
`Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1344 (3d ed.
`2008) ..........................................................................................................................................6
`
`Fed. R. Civ. P. 15 ................................................................................................................... passim
`
`Fed. R. Civ. P. 15(a)(1) ............................................................................................................2, 3, 8
`
`Fed. R. Civ. P. 15(a)(1)(B) ..............................................................................................................8
`
`Federal Rules of Civil Procedure Rule 12(b) ...................................................................................6
`
`3 Moore’s Federal Practice - Civil § 15.10 (2020) ..........................................................................2
`
`3 Moore’s Federal Practice - Civil § 15.16 (2020) ......................................................................1, 6
`
`8 Moore’s Federal Practice - Civil § 41.21 (2020) ..........................................................................6
`
`Rule 11 .............................................................................................................................................4
`
`Rule 12 .........................................................................................................................................2, 3
`
`Rule 15 ................................................................................................................................... passim
`
`Rule 21 .....................................................................................................................................6, 7, 8
`
`Rule 41 .....................................................................................................................................1, 6, 8
`
`
`
`-iii-
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`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 5 of 16 PageID #: 1800
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`I.
`
`INTRODUCTION
`
`Defendant Innovation Sciences, LLC (“Patentee”) misstates both the facts and the law.
`
`Patentee represents to this Court that Plaintiff HTC America, Inc. deliberately consented to
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`jurisdiction and venue in this District. In support of this representation, Patentee quotes two
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`sentences from earlier meet and confer correspondence out of context. The full correspondence
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`makes clear that HTC America, Inc. disputed proper venue and an amended complaint was being
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`drafted to remove HTC America, Inc. as a declaratory judgment plaintiff. Upon learning that
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`such an amended complaint was forthcoming, Patentee immediately filed its untimely answer
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`without leave of court, claiming that HTC America, Inc. “consented to jurisdiction and venue in
`
`this District . . . .”
`
`When the amended complaint was filed, Patentee filed the instant Motion to Strike or for
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`Alternate Relief (Dkt. 48) (“Motion”), arguing that Plaintiffs HTC America, Inc. and HTC
`
`Corporation (“HTC”) could not drop a party through amendment of pleadings under Rule
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`15(a)—and that HTC should instead have filed a request for dismissal under Rule 41(a)(2). But
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`Patentee’s motion conspicuously fails to cite a single case supporting this argument. Even
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`cursory legal research shows that a “party may amend a pleading in order to add or drop parties.”
`
`3 Moore’s Federal Practice - Civil § 15.16 (2020). Moreover, the Fifth Circuit noted less than a
`
`month ago in an en banc opinion that plaintiffs: “could have amended their complaint to excise
`
`any remaining claims or parties under Rule 15(a).” Williams v. Taylor Seidenbach, Inc., 958
`
`F.3d 341, 2020 U.S. App. LEXIS 14214, at *8 (5th Cir. 2020) (en banc) (emphasis added). In
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`short, the argument at the center of Patentee’s Motion—that parties may not be dropped under
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`Rule 15(a)—is a failing argument. Patentee’s Motion should be denied.
`
`1
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`
`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 6 of 16 PageID #: 1801
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`II.
`
`LEGAL STANDARD
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`The law of the regional circuit applies to procedural questions that are not unique to
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`patent cases, such as those pertaining to the amendment of pleadings under Rule 15(a). Ali v.
`
`Carnegie Inst. of Wash., 684 F. App’x 985, 991 (Fed. Cir. 2017).
`
`Under Rule 12(f), the Court “may strike from a pleading an insufficient defense or any
`
`redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The Fifth
`
`Circuit has stated that motions to strike are generally disfavored.” Am. S. Ins. Co. v. Buckley, 748
`
`F. Supp. 2d 610, 626 (E.D. Tex. 2010) (citing Kaiser Aluminum & Chem. Sales, Inc. v. Avondale
`
`Shipyards, 677 F.2d 1045, 1058 (5th Cir. 1982)). In asserting a motion to strike, the moving
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`party bears the burden of proof. See Hornsby v. Salvation Army, No. H-10-CV-04277, 2011 U.S.
`
`Dist. LEXIS 167500, at *4 (S.D. Tex. Oct. 4, 2011) (denying unopposed motion to strike
`
`because defendants had “not met their heavy burden under Rule 12(f)”).
`
`Rule 15(a) provides: “A party may amend its pleading once as a matter of course within:
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`. . . (B) if the pleading is one to which a responsive pleading is required, 21 days after service of
`
`a responsive pleading . . . .” Fed. R. Civ. P. 15(a)(1). Previously, the right to amend “as a matter
`
`of course” was terminated by service of a responsive pleading, but Rule 15(a) has been amended
`
`to extend to 21 days after such service. The advisory committee notes explained:
`
`Second, the right to amend once as a matter of course is no longer terminated by service
`of a responsive pleading. The responsive pleading may point out issues that the original
`pleader had not considered and persuade the pleader that amendment is wise. Just as
`amendment was permitted by former Rule 15(a) in response to a motion, so the amended
`rule permits one amendment as a matter of course in response to a responsive pleading.
`
`
`Fed. R. Civ. P. 15 advisory committee’s note to 2009 amendment.
`
`Rule 15(a) permitting amendment “once as a matter of course” within specified time
`
`limits “implies that the court has no discretion to deny such an amendment.” Aguilar v. Tex.
`
`Dep’t of Criminal Justice, Institutional Div., 160 F.3d 1052, 1053 (5th Cir. 1998). See also 3
`
`-2-
`
`
`

`

`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 7 of 16 PageID #: 1802
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`Moore’s Federal Practice - Civil § 15.10 (2020) (“The court has no discretion to deny a timely
`
`amendment made ‘as a matter of course.’ Provided the amendment is timely . . ., the terms of
`
`Rule 15(a)(1) normally provide an unfettered right.”).
`
`III. ARGUMENT
`A.
`
`Patentee misrepresents HTC’s position on venue
`
`Contrary to Patentee’s representations, HTC does not and has never “consented to
`
`jurisdiction and venue in this District . . . .” Patentee’s Answer, Defenses and Counterclaims to
`
`HTC’s Complaint for Declaratory Judgment (“Original Answer”), Dkt. 42 at 8 (emphasis added).
`
`Even assuming that by filing suit, a plaintiff ordinarily waives the right to object to venue as to a
`
`defendant’s counterclaims, this overlooks one key fact—that HTC did not file in this District, but
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`rather filed in the Eastern District of Virginia. Complaint for Declaratory Judgment (“Original
`
`Complaint”), Dkt. 1. When Patentee moved to transfer venue, HTC opposed, arguing that
`
`“HTC’s choice of venue should not be disturbed.” Dkt. 27 at 22. In arguing that HTC America,
`
`Inc. has somehow affirmatively consented to venue, Patentee’s Motion takes two sentences from
`
`earlier meet and confer correspondence and quotes them out of context to misrepresent HTC’s
`
`position. Mot. at 2.
`
`On March 5, 2020, the Eastern District of Virginia issued an order, denying Patentee’s
`
`motion to dismiss, but granting Patentee’s motion to transfer. See Dkt. 34 at 5 (“As such, the
`
`Court declines to dismiss on this ground.”). This Court has previously explained:
`
`Rule 12(a)(4) provides “if the court denies [a Rule 12] motion or postpones its
`disposition until trial, [a] responsive pleading must be served within 14 days after notice
`of the court’s action.” Fed. R. Civ. P. 12(a)(4). If a party serves its responsive pleading
`outside the fourteen-day deadline, the party must seek leave of the Court by filing a
`formal motion.
`
`iFLY Holdings LLC v. Indoor Skydiving Germany Gmbh, No. 2:14-cv-01080-JRG-RSP, 2016
`
`U.S. Dist. LEXIS 194013, at *2 (E.D. Tex. Mar. 14, 2016) (citations omitted). See also Robin v.
`
`-3-
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`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 8 of 16 PageID #: 1803
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`City of Frisco, No. 4:16-CV-00576, 2017 U.S. Dist. LEXIS 108303, at *4-5 (E.D. Tex. July 13,
`
`2017) (“Defendants did not file their answer and affirmative defenses to the First Amended
`
`Complaint within fourteen days of the Court’s order denying their Rule 12 motion, and therefore
`
`did not timely respond.”).
`
`Over 3 weeks after Patentee’s deadline to answer, HTC pointed out on April 14, 2020
`
`that Patentee had yet to answer: “Also, I think you[r] deadline to answer or otherwise respond to
`
`the complaint has passed. Did we miss that?” Ex. 1. The Patentee responded with: “The
`
`complaint has lots of allegations relating to jurisdiction and/or venue in Virginia and why the
`
`case was brought there. Does HTC intend to file an amended complaint to streamline it and
`
`reflect that the case is in Texas? We intend to file an answer.” Ex. 1. HTC’s reply:
`
`[W]e weren’t planning on amending the complaint. I don’t think we have any obligation
`to do so, but if there is authority that you think requires us to do so if an allegation is
`arguably no longer relevant, we’re happy to consider it. [¶] When are you filing your
`answer? I believe the deadline has passed. Are you moving for leave or to extend your
`time?
`
`Ex. 1. Thus, it is clear in context that the two sentences quoted in Patentee’s Motion were made
`
`in relation to whether HTC was required to remove arguably irrelevant allegations that Patentee
`
`was subject to personal jurisdiction and venue in the Eastern District of Virginia.
`
`A week later, on April 20, 2020, Patentee notified HTC for the first time that it intended
`
`to assert a counterclaim of infringement. Ex. 1. HTC responded by raising an objection as to
`
`HTC America, Inc. based on venue:
`
`Separately, to the extent you intend to file counterclaims of infringement against
`HTC America, we do not believe venue would be proper for such claims under TC
`Heartland and as evidenced by the fact that you have not included HTCA as a defendant
`in your other suits in EDTX.
`
`Raising it now to hopefully avoid unnecessary motion practice on that issue. If
`you think there is a Rule 11 basis to file infringement claims against HTCA in EDTX,
`we’d appreciate you explaining that basis.
`
`-4-
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`

`

`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 9 of 16 PageID #: 1804
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`Finally, to the extent you believe you need to file a motion for leave or an
`extension of time for your answer (as I believe it is overdue), let us know.
`
`Ex. 1. In response, Patentee took its current position that HTC America, Inc. had somehow
`
`consented to venue: “Recall that we asked you if HTC intended to file an amended complaint,
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`and you indicated that it would not do so. HTCA is maintaining its complaint against
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`Innovation.” Ex. 1. HTC responded by explaining why this was a mischaracterization:
`
`You and Jay had asked if we would amend the complaint to remove allegations
`relating to whether Innovation was subject to personal jurisdiction in E.D. Va. and why
`the case was filed in that venue. We did not believe amending the complaint to remove
`those allegations was necessary. There was no prior discussion about Innovation filing
`counterclaims of infringement – we were actually the first to raise that issue, and long
`after your deadline to file an answer or any counterclaims passed. Innovation still has not
`filed an answer or any counterclaims.
`
`To remove any disputes as to venue for HTCA and whether Innovation must
`file mandatory counterclaims, we will file an amended complaint to remove HTCA
`as a DJ Plaintiff.
`
`
`Ex. 1 (emphasis added). Rather than continuing to confer, the Patentee filed its Original Answer
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`that same day claiming that “HTC and HTC America have consented to jurisdiction and venue in
`
`this District . . . .” Dkt. 42 at 8. Moreover, Patentee did so without seeking leave of the Court by
`
`filing a formal motion as required. When HTC filed its First Amended Complaint for
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`Declaratory Judgment (“First Amended Complaint”) (Dkt. 44) removing HTC America, Inc. as a
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`plaintiff, the Patentee filed the instant Motion, which quoted two sentences out of context to
`
`misrepresent HTC’s position.1 Mot. at 2.
`
`
`1 In a footnote, Patentee argued that counsel entered a “general appearance” on behalf of HTC
`implying waiver or forfeiture. Mot. at 2 n.1. “Prior to the federal rules, the practice was for
`counsel to appear specially for the purpose of objecting by motion to the jurisdiction of the court
`over the defendant or its property, venue of the action, or insufficient process or service of
`process; a failure to follow the correct procedure for doing so often resulted in a waiver of the
`defense. As many judicial opinions have made clear, it no longer is necessary to appear
`specially or employ any particular set of words to challenge a federal court’s personal
`jurisdiction, venue, or service of process.” 5B Charles Alan Wright & Arthur R. Miller, Fed.
`Prac. & Proc. Civ. § 1344 (3d ed. 2008) (footnotes omitted) (emphasis added). See also Harrison
`
`-5-
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`
`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 10 of 16 PageID #: 1805
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`B.
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`Rule 15(a) permits amendment once as a matter of course to add or drop
`parties
`
`Citing no precedent, Patentee argues that Rule 15 may not be used to add or drop parties,
`
`and only Rule 41 can be used to remove a party from the Original Complaint. Mot. at 2 (“Rule
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`15 is appropriate for a party to amend its pleading in an action, but not to dismiss the entirety of
`
`its claims or remove itself from the action. The withdrawal of a party from an action is a
`
`dismissal of that party’s case. A party may dismiss all of its claims only as provided by Fed. R.
`
`Civ. P. 41.”) (emphasis in original). But contrary to Patentee’s unsupported argument, a plaintiff
`
`may use any one of multiple rules to drop a party from an action: Rule 15(a), Rule 21, or Rule
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`41. See Williams, 958 F.3d 341, 2020 U.S. App. LEXIS 14214, at *8 (en banc) (“They could
`
`have dismissed the remaining defendants with prejudice under Rule 41(a). They could have
`
`amended their complaint to excise any remaining claims or parties under Rule 15(a). They could
`
`have requested severance of certain parties under Rule 21.”) (citations omitted); 8 Moore’s
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`Federal Practice - Civil § 41.21 (2020). Specifically, under Rule 15(a), “[a] party may amend a
`
`pleading in order to add or drop parties.” 3 Moore’s Federal Practice - Civil § 15.16 (2020).
`
`“Because such amendments are ‘as a matter of course,’ the amending party need not and should
`
`not file a motion for leave to amend.” Wagstaffe Prac. Guide: Fed Civil Proc. Before Trial § 18-
`
`II (2020). Less than a month ago, the Fifth Circuit noted in an en banc opinion that plaintiffs:
`
`“could have amended their complaint to excise any remaining claims or parties under Rule
`
`15(a).” Williams, 958 F.3d 341, 2020 U.S. App. LEXIS 14214, at *8 (5th Cir. 2020) (en banc)
`
`(emphasis added).
`
`
`v. Prather, 404 F.2d 267, 272 (5th Cir. 1968) (“Under Rule 12(b), Federal Rules of Civil
`Procedure there is no longer any necessity for appearing specially to protest the court’s
`jurisdiction.”).
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`-6-
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`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 11 of 16 PageID #: 1806
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`Precedent makes clear that when a plaintiff amends to add or drop parties as a matter of
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`course under Rule 15(a), the plaintiff is not required to first request leave as is required by other
`
`rules. In McLellan v. Mississippi Power & Light Co., 526 F.2d 870 (5th Cir. 1976), modified on
`
`other grounds, 545 F.2d 919 (5th Cir. 1977), plaintiff sued his former employer, and defendant
`
`filed a motion to dismiss. Id. at 871. Before the court decided the motion, plaintiff filed an
`
`amended complaint under Rule 15 adding two new parties. Id. The district court held that parties
`
`could only be added pursuant to Rule 21 (pertaining to misjoinder and nonjoinder of parties). Id.
`
`at 872. Since Rule 21 required leave of court and leave had not been obtained, the district court
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`dismissed the complaint with respect to the new parties. Id. On appeal, the issue before the Fifth
`
`Circuit was: “Which rule takes precedence if a party attempts to drop or add parties by an
`
`amended pleading filed before a responsive pleading is served? May the amending party file his
`
`amendment as a matter of course (first sentence of Rule 15) or must he obtain leave (Rule 21)?”
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`Id. The Fifth Circuit concluded that Rule 15 took precedence and leave of court under Rule 21
`
`was not required: “The District Court in this case gave precedence to Rule 21. We reach the
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`opposite conclusion.” Id. at 873.
`
`Similarly, in United States ex rel. Precision Co. v. Koch Indus., Inc., 31 F.3d 1015 (10th
`
`Cir. 1994) (“Precision”), an amended complaint was filed under Rule 15(a) which joined two
`
`additional plaintiffs. Id. at 1016. The district court held that plaintiff violated Rule 21 by
`
`attempting to add parties without seeking the court’s permission, and granted defendants’ motion
`
`to dismiss. Id. at 1016-17. The Tenth Circuit reversed, explaining: “plaintiffs were entitled to the
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`amendment as a matter of right. Thus, the district court erred in its refusal to recognize that
`
`right.” Id. at 1019. The court concluded: “the district court erred in deciding the addition of
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`plaintiffs to pending litigation is governed by Fed. R. Civ. P. 21 and not by Fed. R. Civ. P. 15(a)
`
`-7-
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`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 12 of 16 PageID #: 1807
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`. . . .” Id. at 1016. Other courts have reached similar results. See, e.g., Galustian v. Peter, 591
`
`F.3d 724, 730 (4th Cir. 2010); Broyles v. Corr. Med. Servs., No. 08-1638, 2009 U.S. App.
`
`LEXIS 5494, at *8 (6th Cir. Jan. 23, 2009).
`
`The issue before the Court is similar to McLellan and Precision. Here, the First Amended
`
`Complaint was timely filed pursuant to Rule 15(a), which expressly permits amendment “once as
`
`a matter of course within . . . 21 days after service of a responsive pleading.” Fed. R. Civ. P.
`
`15(a)(1)(B). Notably, HTC did not file a notice of dismissal under Rule 41(a)(1)(A)(i). Nor did
`
`HTC file a request for dismissal under Rule 41(a)(2). But rather than argue that HTC failed to
`
`comply with Rule 15’s requirements, Patentee argues that HTC failed to comply with the
`
`requirements of another rule—one that HTC did not invoke. Furthermore, Patentee’s argument
`
`that HTC should have sought leave of court under Rule 41(a)(2) is incongruous with Patentee’s
`
`own failure to seek leave of the Court to file its untimely answer—even after HTC repeatedly
`
`reminded Patentee of its obligation to do so. Ex. 1.
`
`Similar to McLellan and Precision, the issue before the Court is whether the amending
`
`party may file its amendment as a matter of course (first sentence of Rule 15) or must request
`
`dismissal by court order (Rule 41). Compare Fed. R. Civ. P. 15(a)(1) (“A party may amend its
`
`pleading once as a matter of course . . . .”) with Mot. at 1 (“Pursuant to Fed. R. Civ. P. 41,
`
`however, HTC America, Inc. cannot withdraw absent court order.”). The same outcome as in
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`McLellan and Precision is warranted. The plain language of Rule 15(a) permits an amendment
`
`“once as a matter of course,” and precedent makes it clear that Rule 15(a) is an appropriate way
`
`to drop a party. Finally, the drafters specifically intended that Rule 15 be used to amend
`
`pleadings to change plaintiffs: “Again the chief consideration of policy is that of the statute of
`
`limitations, and the attitude taken in revised Rule 15(c) toward change of defendants extends by
`
`-8-
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`
`

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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 13 of 16 PageID #: 1808
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`analogy to amendments changing plaintiffs.” Fed. R. Civ. P. 15 advisory committee’s note to
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`1966 amendment (emphasis added).[YJ1] It is telling that Patentee’s Motion fails to cite a single
`
`case from any court in support of its argument that Rule 15(a) may not be used to drop a party.
`
`Patentee’s argument is contrary to precedent.
`
`C.
`
`Patentee’s request “for alternate relief” should be denied
`
`Patentee’s Motion requests “alternate relief” without ever specifying precisely what relief
`
`Patentee is seeking or what precedent would support such relief. Mot. at 1. Such a vague request
`
`should be denied. In the lead consolidated case, the alleged infringers filed a motion to dismiss
`
`alleging lack of standing. Va. Innovation Scis., Inc. v. Amazon.com, Inc., Civ. No. 4:18-cv-
`
`00474-ALM (E.D. Tex. Nov. 18, 2019) (Dkt. 314). When the movants “requested the Court to
`
`convert the motion to dismiss to whatever motion the Court finds appropriate,” the Court
`
`explained that “it is the Movants responsibility to file the appropriate motion and the Court will
`
`not convert the current motion to another motion, whatever that may be, find a new legal
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`standard, and convert the arguments presented for a motion to dismiss into the framework of that
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`standard.” Id. at 7. Likewise, it is Patentee’s responsibility to file the appropriate motion clearly
`
`articulating the relief sought. Nor should Patentee be permitted to articulate the “alternative
`
`relief” sought for the first time in its reply brief. See id. (“the Court does not accept new
`
`arguments, or a change of theory raised for the first time in a reply.”).
`
`D.
`
`HTC Corp.’s First Amended Complaint renders Patentee’s Original Answer
`a legal nullity
`
`Even ignoring Patentee’s failure to obtain leave of court to file its Original Answer,
`
`precedent establishes that the filing of the First Amended Complaint renders the Original Answer
`
`a legal nullity. “An amended complaint supersedes the original complaint and renders it of no
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`legal effect unless the amended complaint specifically refers to and adopts or incorporates by
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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 14 of 16 PageID #: 1809
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`reference the earlier pleading.” Potter v. Cardinal Health 200, LLC, 381 F. Supp. 3d 729, 734
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`(E.D. Tex. 2019) (citing Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 440 (5th Cir.
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`2015)). The First Amended Complaint was timely filed under Rule 15(a) and did not specifically
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`refer to, adopt, or incorporate by reference the Original Complaint. Dkt. 44. Therefore, HTC’s
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`Original Complaint is rendered a nullity. McMurdy v. Bos. Sci. Corp., No. 2:19-CV-00301-JRG,
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`2019 U.S. Dist. LEXIS 199861, at *3 (E.D. Tex. Nov. 19, 2019) (“Unless the amended
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`complaint expressly incorporates the original complaint, the amended complaint completely
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`replaces the original and renders it a legal nullity.”) (citing In re Vitro Asset Corp., 656 F. App’x
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`717, 722 (5th Cir. 2016)). Likewise, Patentee’s Original Answer to the Original Complaint is
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`rendered a nullity. See U.S. Bank N.A. v. Harris, 2017 U.S. Dist. LEXIS 172701, *3 (E.D. Tex.
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`Sept. 29, 2017) (entry of default based on failure to answer superseded complaint rendered a
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`nullity and motion for default judgment denied as moot); United States ex rel. Bias v.
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`Tangipahoa Par. Sch. Bd., 816 F.3d 315, 322 (5th Cir. 2016) (“It is certainly true that if a
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`plaintiff amends his complaint, a defendant may file a new responsive pleading because the
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`amended complaint typically causes the original pleading to be ‘of no legal effect.’”).
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`IV. CONCLUSION
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`For the foregoing reasons, Patentee’s Motion to Strike or for Alternate Relief should be
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`denied. Should this Court deny Patentee’s Motion, HTC Corp. does not oppose Patentee’s
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`request for an extension of ten (10) days from that denial to respond to HTC Corp.’s First
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`Amended Complaint at Dkt. 44. Mot. at 3. Should this Court grant Patentee’s Motion, HTC
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`respectfully requests an extension of ten (10) days from the Court’s decision to respond to
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`Defendant’s Answer, Defenses and Counterclaims at Dkt. 42.
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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 15 of 16 PageID #: 1810
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`DATED:
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`May 29, 2019
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`PAUL HASTINGS LLP
`
`By: /s/ Philip Ou
`Yar R. Chaikovsky
`yarchaikovsky@paulhastings.com
`Philip Ou
`philipou@paulhastings.com
`Bruce Yen
`bruceyen@paulhastings.com
`Joshua Yin
`joshuayin@paulhastings.com
`1117 S. California Avenue
`Palo Alto, California 94304-1106
`Telephone:
`1(650) 320-1800
`Facsimile:
`1(650) 320-1900
`
`Harry L. Gillam, Jr.
`TX Bar No. 07921800
`GILLAM & SMITH LLP
`303 S. Washington Ave.
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`gil@gillamsmithlaw.com
`
`Attorneys for Plainitff,
`HTC CORPORATION
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`Case 4:20-cv-00180-ALM Document 49 Filed 05/29/20 Page 16 of 16 PageID #: 1811
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 29, 2020, I electronically filed the foregoing
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`document with the Clerk of the Court using the CM/ECF system which will send
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`notification of such filing via electronic mail to all counsel of record.
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`
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`/s/ Philip Ou
`Philip Ou
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`-12-
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