Case 2:21-cv-00376-JRG Document 24 Filed 02/01/22 Page 1 of 6 PageID #: 448

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

ERICSSON INC. and

TELEFONAKTIEBOLAGET LM Civil Action No. 2:21-cv-376
ERICSSON,

Plaintiffs,

v.

APPLE INC.,

Defendant.

APPLE INC.’S OPPOSITION TO ERICSSON’S MOTION

TO FILE A FIRST AMENDED COMPLAINT
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Ericsson’s original claim was deficient at the outset and should be dismissed, so its motion

for leave to file a First Amended Complaint too should be denied. Ericsson’s request to amend its

premature, and necessarily deficient, complaint is part of a tactic to secure a litigation advantage—

to which it is not entitled—by breaching an in-force contract between the parties. Ericsson’s

complaint is irreparable, by amendment or otherwise. And condoning this tactic by permitting

Ericsson’s proposed amendment will give a green light for similarly-situated parties to ignore their

contractual obligations in favor of securing a favorable toe-hold in litigation. The only

procedurally proper case between Apple and Ericsson is Apple’s case, No. 2:21-cv-00460-JRG,

which is where Ericsson may attempt to bring its new claims as a counterclaim. And according to

Ericsson, the claims Apple has brought in that case will resolve the parties’ entire dispute.

Ericsson’s motion to amend should be denied.

ARGUMENT

I. Leave to Amend Should be Denied Because the Court Lacks Subject Matter
Jurisdiction Over the Original Claim.

As explained in Apple’s motion to dismiss, the Court lacks subject matter jurisdiction over

this action because Ericsson’s original claim was not ripe or justiciable when filed. See ECF 7.

When Ericsson filed its Complaint, the parties had no dispute about the essentiality or value of

Ericsson’s SEPs patents because those issues were settled in the 2015 license, which was still in

effect. Further, the 2015 license specifically prohibits either party from alleging that the other has

breached its FRAND commitments.

Because this Court lacks subject matter jurisdiction, the proper outcome here is dismissal.

In this Circuit, a plaintiff may not amend a complaint when, from the start, the plaintiff never had

standing and the court never had jurisdiction. Summit Office Park, Inc. v. United States Steel

Corp., 639 F.2d 1278, 1282 (5th Cir. 1981) (“[W]here a plaintiff never had standing to assert a
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claim against the defendants, it does not have standing to amend the complaint and control the

litigation”). Specifically, Fed. R. Civ. P. 15 does not allow plaintiffs to create jurisdiction when

none ever existed. See Federal Recovery Servs. v. United States, 72 F.3d 447, 453 (5th Cir. 1995);

Aetna Casualty & Surety Co. v. Hillman, 796 F.2d 770, 776 (5th Cir. 1986) (“At the time this case

was filed, … [t]he federal court had no subject matter jurisdiction. Rule 15 … [does] not allow a

party to amend to create jurisdiction where none actually existed.”).

District courts in the Fifth Circuit have applied these principles to deny motions to amend

a complaint where the court lacked jurisdiction from the outset. See, e.g., Bhandari v. Cadence

Design Sys., 485 F. Supp. 2d 747, 750 (E.D. Tex. 2007) (“Since Bhandari does not have standing,

this Court lacks subject matter jurisdiction over this suit and lacks jurisdiction to consider the

motion to amend the complaint.”); TXCAT v. Phx. Grp. Metals, LLC, No. H-10-0344, 2010 U.S.

Dist. LEXIS 132614, at *11 (S.D. Tex. Dec. 14, 2010) (“if TXCAT lacks standing, even if TXCAT

had filed a timely motion for leave to amend, the Court is not able to allow TXCAT to amend its

complaint … to create subject matter jurisdiction since the Court would have had no jurisdiction

before the proposed amendment.”). Allowing a plaintiff to amend the complaint to create

jurisdiction “would be akin to initiating a new lawsuit” with “a new cause of action.” Bhandari,

485 F. Supp. at 750.

Ericsson has asked the Court to act beyond its authority and grant leave to amend its flawed

complaint to cure the fatal jurisdictional deficiencies of its original complaint. However, because

subject matter jurisdiction did not exist at the outset, the motion should be denied. Bhandari, 485

F. Supp. at 751.

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II. Leave to Amend Should Be Denied Because of Ericsson’s Attempts at

Gamesmanship.

Even were the Court to have subject matter jurisdiction (which it does not, for the reasons

explained above), it nevertheless retains “discretion to grant or deny a motion to amend and may

consider a variety of factors including … bad faith… on the part of the movant.” Anokwuru v.

City of Hous., 990 F.3d 956, 966 (5th Cir. 2021) (citations omitted).

Ericsson filed a deficient declaratory judgment claim. And with its instant motion to amend

to add FRAND claims, Ericsson confirms that this was a pre-planned tactic to be the party with

the first-filed case, with jurisdiction to be repaired through subsequent amendment. Ericsson’s

transparent attempts to make the Court a pawn in its global injunction game should be rejected. A

motion for leave to amend is properly denied where, as here, the plaintiff seeks to use the

amendment process in bad faith to bring claims in series for a tactical advantage. See, e.g.,

Wimm v. Jack Eckerd Corp., 3 F.3d 137, 142-43 (5th Cir. 1993); Smith v. Chrysler Grp., LLC, No.

1:15-CV-218, 2016 U.S. Dist. LEXIS 182669, at *9-11 (E.D. Tex. Aug. 12, 2016).

Ericsson’s motion concedes that the amended claims, the only claims for which the Court

can fashion a remedy other than an advisory declaration, were not justiciable at the time of the

original complaint because of the parties’ license agreement. ECF 18 at 1 (“The reason Ericsson

did not assert these claims in its Original Complaint is that parties’ 2015 License Agreement

contains a provision preventing one party from accusing the other party of violating FRAND

during the term of the of 2015 License Agreement.”). The Court should not countenance such

conduct and instead should use the ripeness doctrine to prevent Ericsson from advancing a claim

for an extra-jurisdictional, advisory declaration. See Choice Inc. v. Greenstein, 691 F.3d 710, 715

(5th Cir. 2012) (“The ripeness doctrine’s basic rationale is to prevent the courts, through avoidance

of premature adjudication, from entangling themselves in abstract disagreements.”).

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Apple has filed the only procedurally proper complaint before this Court, and it presents

an opportunity for a global resolution on FRAND terms. Apparently seeking to avoid this

outcome, Ericsson, over the last two weeks, has started a campaign to undermine this Court’s

ability to set FRAND terms by filing cases seeking injunctions against Apple on FRAND-

committed SEPs in the Western District of Texas, the ITC, Belgium, Brazil, the Netherlands, and

Germany. Ericsson should not be permitted to evade a decision by this Court. The Court should

deny the pending motion to amend, and Ericsson should instead seek leave to plead its FRAND

arguments as counterclaims in Apple’s properly filed suit.

CONCLUSION

For the foregoing reasons, Apple respectfully requests the Court deny Ericsson’s motion

for leave to amend, and dismiss Ericsson’s complaint.

DATED: February 1, 2022 Respectfully submitted,

/s/ Melissa R. Smith

Melissa R. Smith
State Bar No. 24001351
melissa@gillamsmithlaw.com
GILLAM & SMITH, LLP
303 South Washington Avenue
Marshall, TX 75670
Telephone: 903-934-8450
Facsimile: 903-934-9257

Ruffin Cordell Joseph J. Mueller (pro hac vice)

cordell@fr.com Timothy D. Syrett (pro hac vice)
State Bar No. 04820550 joseph.mueller@wilmerhale.com
FISH & RICHARDSON P.C. timothy.syrett@wilmerhale.com
1000 Maine Ave SW, Suite 1000 WILMER CUTLER PICKERING
Washington, DC 20024 HALE AND DORR LLP
Telephone: 202-783-5070 60 State Street
Facsimile: 202-783-2331 Boston, MA 02109

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Telephone: 617-526-6000
Benjamin C. Elacqua Facsimile: 617-526-5000
State Bar No. 24055443
elacqua@fr.com
FISH & RICHARDSON P.C. Mark D. Selwyn (pro hac vice)
1221 McKinney Street, Suite 2800 mark.selwyn@wilmerhale.com
Houston, TX 77010 WILMER CUTLER PICKERING
Telephone: 713-654-5300 HALE AND DORR LLP
Facsimile: 713-652-0109 2600 El Camino Real #400
Palo Alto, CA 94306
Betty Chen Telephone: 650-858-6000
State Bar No. 24056720 Facsimile: 650-858-6100
bchen@fr.com
FISH & RICHARDSON P.C.
500 Arguello Street, Suite 500 Attorneys for Plaintiff Apple Inc.
Redwood City, CA 94063
Telephone: 650-839-5070
Facsimile: 650-839-5071

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing

document has been served on February 1, 2022, to all counsel of record who are deemed to have

consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).

/s/ Melissa R. Smith

Melissa R. Smith

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