JOINT MOTION TO MODIFY THE STATUS (PRETRIAL SCHEDULING) ORDER AND ORDER Fed. R. Civ. P. 16(b)(4)

TROY L. NUNLEY, District Judge.

I.

INTRODUCTION

Repro-Med Systems, Inc. ("RMS") and EMED Technologies Corporation ("EMED") (collectively, the "Parties") jointly move to modify the Status (Pretrial Scheduling) Order (the "Scheduling Order) to conform the claim construction briefing order to that recited in Patent Local Rule 4-5 of the Northern District of California (Rule 4-5).

The Scheduling Order presently calls for each party to file an opening claim construction brief, on September 15, 2014. It also calls for each party to file a responsive brief on October 14, 2014. This briefing schedule will result in the filing of briefs that speak over one another, rather than to each other. As a result, the Parties agree that good cause exists to modify the Scheduling Order to conform the briefing order to that recited in Rule 4-5.

Rule 4-5 calls for the party alleging infringement to file its opening brief, followed by the alleged infringing party's responsive brief, and, finally, the former party's reply.

The proposed modifications will not affect the timing of the Technology Tutorial and Markman Hearing, and will promote judicial economy.

The Parties respectfully request that the Court approve the proposed Scheduling Order attached to this Joint Motion.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2014, EMED substituted trial counsel, at which time the Parties submitted a joint motion to modify the Scheduling Order. (Dkt. Nos. 30, 32.) The proposed modification was to continue all deadlines 45 days (with exceptions for weekends and holidays) to enable EMED's counsel to get up to speed. (Dkt. No. 32.) The Court granted the motion, with some additional modification to schedule the technology tutorial and Markman hearing for the same day. (Dkt. No. 36.)

In the absence of Patent Local Rules for the Eastern District of California, the Parties agreed to use Rule 4-5 of the Northern District of California's Patent Local Rules as a guide.

Recently, the Parties realized that the claim construction briefing order does not conform with the Rule 4-5 and will result in briefs that speak over each other.

Rule 4-5 provides:

(P.L.R. 4-5, available at http://www.cand.uscourts.gov/localrules/patent.)

III.

LAW AND ARGUMENT

Federal Rule of Civil Procedure 16 permits modification of a schedule "for good cause and with the judge's consent." Fed. R. Civ. Proc. 16(b)(4). Good cause exists to modify the Scheduling Order to more closely conform to Rule 4-5 because the operative Scheduling Order (Dkt. No. 36) will result in the filing of briefs that speak over each other, rather than to each other. Conforming the briefing order to Rule 4-5 will facilitate a dialogue between the briefs, which will promote efficiency and clarity in the litigation of the Parties' contentions.

IV.

CONCLUSION

Based on the foregoing, the Joint Motion should be GRANTED.

ORDER

Having considered the Parties' Joint Motion to Modify the Status (Pretrial Scheduling) Order, it is ORDERED that the deadlines entered in the June 30, 2014 Status (Pretrial Scheduling) Order are hereby modified as follows:

IT IS SO ORDERED.