Case 3:08-cv-03343-SI Document 55 Filed 11/21/2008 Page 1 of 5

1 Mike McKool, Jr. (pro hac vice)

Douglas Cawley (pro hac vice)
2 McKOOL SMITH P.C.
300 Crescent Court
3 Suite 1500
Dallas, Texas 75201
4 Telephone: (214) 978-4000
Facsimile: (214) 978-4044
5 Email: mmckool@mckoolsmith.com;
dcawley@mckoolsmith.com
6
Scott L. Cole (pro hac vice)
7 Pierre J. Hubert (pro hac vice)
Craig N. Tolliver (pro hac vice)
8 McKOOL SMITH P.C.
300 W. 6th Street
9 Suite 1700
Austin, Texas 78701
10 Telephone: (512) 692-8700
Facsimile: (512) 692-8744
11 Email: scole@mckoolsmith.com;
phubert@mckoolsmith.com;
300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

12 ctolliver@mckoolsmith.com
Dallas, TX 75201

13 Julie S. Turner (State Bar No. 191146)

THE TURNER LAW FIRM
14 344 Tennessee Lane
Palo Alto, California 94306
15 Telephone: (650) 494-1530
Facsimile: (650) 472-8028
16 Email: jturner@julieturnerlaw.com

17 Attorneys for Plaintiff

RAMBUS INC.
18

19 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
20 SAN FRANCISCO DIVISION
21
RAMBUS INC.,
22 Case No. C-08-03343 SI
Plaintiff,
23 RAMBUS INC.’S OPPOSITION TO
v. NVIDIA’S MOTION TO EXTEND
24 TIME TO FILE ANSWER AND
NVIDIA CORPORATION, COUNTERCLAIMS
25
Defendant. Judge: The Hon. Susan Illston
26

27

28 Rambus Inc.’s Opposition to NVIDIA Corp.’s

Motion to Extend Time to File Answer and Counterclaims
Case No. C-08-03343 SI
Austin 47230v3
Austin 47260v1
 Case 3:08-cv-03343-SI Document 55 Filed 11/21/2008 Page 2 of 5

1 Despite a series of prior delays spanning several months, NVIDIA now argues that its

2 answer to Rambus’s July 10, 2008 complaint should be delayed even further. NVIDIA has

3 failed to advance any plausible justification for further delaying its answer, and additional delay

4 would unfairly prejudice Rambus. Accordingly, NVIDIA’s motion for an extension on its

5 answer and counterclaims should be denied.

6 NVIDIA has had ample time to formulate its answer. NVIDIA already extended its time

7 to answer the complaint by filing a Rule 12 motion (Dkt. No. 34) on August 29, 2008 instead of

8 answering, and the Court denied that motion without a hearing. (Dkt. No. 45). Notably,

9 NVIDIA was able to respond almost immediately to Rambus’s complaint in this action by

10 preparing and filing – the very next day – a 38-page complaint in North Carolina purportedly

11 asserting antitrust and unfair competition claims that are inextricably intertwined with Rambus’s
300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

12 patent infringement suit in this Court. (See Decl. of Trent E. Campione ISO Rambus’s Opp. to
Dallas, TX 75201

13 NVIDIA’s Mo. to Extend Time (“Campione Decl.”), filed herewith, Ex. A (NVIDIA’s M.D.N.C.

14 Complaint)). In fact, NVIDIA has alleged in North Carolina that it “first suffered damages …

15 when Rambus asserted patent claims against it in” this action. (Campione Decl., Ex. B

16 (NVIDIA’s FAC) at ¶148). Though able to answer without further delay, NVIDIA apparently is

17 reluctant to assert the same allegations here as it did in North Carolina while Rambus’s motion to

18 transfer the North Carolina action to this District is still pending because it fears that overlap in

19 the two cases would weigh in favor of the transfer it opposes. Allowing NVIDIA to further

20 delay its answer – particularly for nearly two more months as it has proposed – would serve only

21 to deprive the North Carolina court of information material to its upcoming decision regarding

22 transfer and unfairly prejudice Rambus.

23 Contrary to NVIDIA’s statement in its motion that “Rambus has declined to stipulate to

24 this extension,” Rambus never had an opportunity to do so before NVIDIA filed its motion.

25 Rambus in fact was considering NVIDIA’s request and had even inquired of NVIDIA how much

26 time it believed would be appropriate for an extension. (Campione Decl., Ex. C (11/20/08 email

27 from counsel for Rambus to counsel for NVIDIA)). Rather than respond to Rambus with any

28 Rambus Inc.’s Opposition to NVIDIA Corp.’s

Motion to Extend Time to File Answer and Counterclaims
Case No. C-08-03343 SI
1
Austin 47260v1
 Case 3:08-cv-03343-SI Document 55 Filed 11/21/2008 Page 3 of 5

1 particular date, NVIDIA unilaterally ended the discussion and filed its motion seeking an

2 unreasonable two month delay of its answer.

3 I. NVIDIA HAS HAD OVER FOUR MONTHS TO CRAFT ITS ANSWER, IS

FULLY CAPABLE OF DOING SO, AND OFFERS NO PLAUSIBLE
4 JUSTIFICATION FOR FURTHER DELAY
5 As the result of NVIDIA’s unsuccessful motion to dismiss and other delays, NVIDIA has

6 now had over four months to formulate its answer in response to Rambus’s complaint. Even

7 before Rambus filed its complaint, the parties had discussed Rambus’s claims in licensing

8 negotiations, providing NVIDIA even more time to evaluate its position and respond to

9 Rambus’s claims. There is no question NVIDIA is capable of answering without further delay,

10 particularly to the extent it repeats in its answer here the allegations it asserted in North Carolina

11 the day after Rambus filed this action, which it presumably will do to the extent it seeks to
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McKOOL SMITH P.C.

12 preserve those purported claims.

Dallas, TX 75201

13 Having failed to explain why it needs more time to answer, NVIDIA argues that its

14 answer should be delayed further because the Case Management Conference (“CMC”) has been

15 rescheduled.1 Any rationale for rescheduling the CMC, however, is not applicable here because

16 the CMC has no bearing on NVIDIA’s answer. NVIDIA tacitly conceded as much when it

17 previously moved to continue the CMC date, but did not also seek to delay its answer that was

18 then due in two weeks. NVIDIA’s actions belie the premise of its motion – that the CMC date

19 and deadline for its answer should move in tandem.2 In addition, to the extent Rambus needs to

20 move to dismiss and/or strike portions of whatever answer is filed by NVIDIA, the parties should

21 resolve those issues prior to the CMC instead of waiting until late January for NVIDIA to file its

22 answer.

23

24
1
The filing of Rambus’s prior Opposition (Dkt. No. 50) to NVIDIA’s motion to continue the
25 CMC inadvertently crossed with the Order continuing the CMC (Dkt. No. 49).
2
NVIDIA’s attempt to explain away its inconsistency, purportedly on the basis that it previously
26 “only” sought to extend the CMC to December 23, and that its request that Rambus stipulate to
such an extension was still pending, falls flat. None of NVIDIA’s stated reasons for delaying its
27 answer depend on the period over which the CMC was delayed, and the parties were still
discussing a stipulation here when NVIDIA abruptly filed the motion at bar.
28
Rambus Inc.’s Opposition to NVIDIA Corp.’s
Motion to Extend Time to File Answer and Counterclaims
Case No. C-08-03343 SI
2
 Case 3:08-cv-03343-SI Document 55 Filed 11/21/2008 Page 4 of 5

1 NVIDIA’s conclusory assertion that Rambus’s ITC Complaint and motions to dismiss

2 and transfer pending in North Carolina “present significant uncertainties as to issues that will go

3 forward in this action” likewise does not support its request. NVIDIA fails to explain how the

4 content of its answer or any underlying facts could be affected by events in the ITC or North

5 Carolina. Regardless of whether the North Carolina case is dismissed or transferred to this

6 District, or any stay is imposed in view of any ITC investigation, NVIDIA will need to answer

7 with whatever defenses or counterclaims it seeks to preserve. Moreover, a prompt answer by

8 NVIDIA would help resolve some of the “uncertaint[y]” it mentions.

9 Accordingly, NVIDIA has failed to provide any justification for departing from the

10 requirement that it respond within 10 days after this Court denied its motion to dismiss. See Fed.

11 R. Civ. P. 12(a)(4)(A).
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McKOOL SMITH P.C.

12 II. FURTHER DELAY PREJUDICES RAMBUS AND DEPRIVES THE NORTH

CAROLINA COURT OF INFORMATION MATERIAL TO RAMBUS’S
Dallas, TX 75201

13 MOTION TO TRANSFER
14 NVIDIA repeatedly has sought to delay deadlines in this case, the first-filed case, while

15 seeking to accelerate deadlines in the North Carolina action. See, e.g., Dkt. Nos. 22, 34, 38 and

16 46; Campione Decl., Ex. D (NVIDIA seeking to delay 26(f) in California and accelerate 26(f) in

17 North Carolina).

18 NVIDIA’s present motion is yet another transparent attempt to delay asserting the same

19 allegations here as in North Carolina. NVIDIA understands that the North Carolina court will

20 consider the degree of overlap between the two cases, and that making the same allegations here

21 as in North Carolina would support Rambus's motion to transfer.3 Yet NVIDIA presumably will

22 need to answer here with counterclaims of the sort it asserted in North Carolina if it wishes to

23 preserve them. Indeed, if NVIDIA is not planning to repeat those claims here, it has every

24 incentive to file its answer immediately and apprise the North Carolina court of any lack of

25 3
In its September 17, 2008 motion to transfer venue, Rambus contends that NVIDIA’s
allegations in its North Carolina complaint are the same as or similar to allegations brought as
26 counterclaims by other alleged infringers in patent cases pending in this District, and that
NVIDIA should have brought its allegations as counterclaims in the present action in this
27 District, where NVIDIA’s and Rambus’s headquarters, numerous potential witnesses and the
vast majority of potentially relevant documents are located.
28
Rambus Inc.’s Opposition to NVIDIA Corp.’s
Motion to Extend Time to File Answer and Counterclaims
Case No. C-08-03343 SI
3
 Case 3:08-cv-03343-SI Document 55 Filed 11/21/2008 Page 5 of 5

1 overlap in the actions that would weigh against the transfer it opposes.

2 With the series of delays in filing its answer, however, NVIDIA has thus far had it both

3 ways – by preserving its counterclaims here and at the same time preventing them from being

4 considered in North Carolina. NVIDIA’s strategy of seeking to delay its answer until after the

5 North Carolina court rules on the motion to transfer is apparent from its refusal to respond to

6 Rambus’s inquiry whether NVIDIA was amenable to an extension that would allow the North

7 Carolina court to consider NVIDIA’s answer and counterclaims. (Campione Decl., Ex. E

8 (11/20/08 email from counsel for NVIDIA to counsel for Rambus)).

9 The North Carolina Court has already issued an order referring Rambus’s motion to

10 transfer for decision. (See Campione Decl., Ex. F). Further delay of NVIDIA’s answer risks

11 depriving the North Carolina court of information material to its upcoming decision, and unfairly
300 Crescent Court, Suite 1500
McKOOL SMITH P.C.

12 prejudicing Rambus’s ability to be fully heard on its motion to transfer and to prepare its case
Dallas, TX 75201

13 here. Enabling NVIDIA’s strategy and encouraging parallel proceedings with substantial

14 overlap on opposite coasts, with all the attendant inefficiencies, would undermine rather than

15 advance judicial efficiency and sound case administration. See Fed. R. Civ. P. 1 (“These rules

16 … should be construed and administered to secure the just, speedy, and inexpensive

17 determination of every action and proceeding.”).

18 NVIDIA’s delay tactics smack of gamesmanship and should not be condoned.

19 For the foregoing reasons, Rambus respectfully requests that the Court deny NVIDIA’s

20 motion.

21 Respectfully submitted,

22
DATED: November 21, 2008 MCKOOL SMITH P.C.
23
THE TURNER LAW FIRM
24

25 By: /s/ Pierre J. Hubert

Pierre J. Hubert
26

27 Attorneys for Plaintiff

RAMBUS INC.
28
Rambus Inc.’s Opposition to NVIDIA Corp.’s
Motion to Extend Time to File Answer and Counterclaims
Case No. C-08-03343 SI
4