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Apple Files Motion to Dismiss Psystar's Florida Case; Alternatively to Transfer Case to California
Thursday, November 26 2009 @ 03:55 AM EST

Apple has filed a motion to dismiss Psystar's litigation in Florida, or in the alternative to transfer it to the Northern District of California, where its so-far successful litigation against Psystar is taking place and consolidate it there. It requests a 30-minute hearing on its motion.

You'll recall that Apple told the California court that it would be filing this motion before Thanksgiving, and it now has. It has asked the California court to issue a permanent injunction against Psystar, and it would like it to cover all versions of Apple's Mac OSX software, including Snow Leopard, which is what the Florida case is supposedly about. If the Florida case is sent to California, that would ensure that any injunction would cover the entire enchilada.

Apple tells the court that Psystar is losing like crazy in California, and the Florida filing is Psystar forum shopping so it can attempt to relitigate issues it is losing or has already lost in the California action.

Here are the filings:

4 - Filed & Entered: 11/24/2009
Motion to Dismiss
Docket Text: Defendant's MOTION to Dismiss [3] Amended Complaint ( Responses due by 12/14/2009), MOTION to change/transfer venue to the Northern District of California by Apple Inc.. (Attachments: # (1) Exhibit 1 - 7, # (2) Exhibit 8 - 10, # (3) Exhibit 11 - 12, # (4) Exhibit 13 - 15)(Schafer, Harry) Modified reliefs/text on 11/25/2009 (lk).

5 - Filed & Entered: 11/24/2009
Motion for Hearing
Docket Text: Defendant's MOTION for Hearing re [4] Defendant's MOTION to Dismiss [3] Amended Complaint by Apple Inc. (Schafer, Harry)text Modified on 11/25/2009 (jc).

6 - Filed & Entered: 11/25/2009
Clerks Notice of Docket Correction and Instruction to Filer - Attorney Docket Text: Clerks Notice to Filer re [4] Defendant's MOTION to Dismiss [3] Amended Complaint MOTION to Adopt/Join [3] Amended Complaint MOTION for Order of Sale Defendant's MOTION to Dismiss [3] Amended Complaint MOTION to Adopt/Join [3] Amended Complaint. Filer Selected the Wrong Motion Relief(s); ERROR - The Filer selected the wrong motion relief(s) when docketing the motion(Motion to adopt/Motion for sale). The correction was made by the Clerk. It is not necessary to refile this document but future motions filed must include applicable reliefs. (lk)

I'm puzzled by the court's notation, because whatever it was, it's correct now. But sometimes what happens is you fill out a form using a prior filing in another case, just to have the wording, and you end up making minor errors of this kind because you copy too much.

Can you imagine having to travel from California to Florida just for a 30-minute hearing? And Psystar's lawyer isn't getting paid unless he wins, which is looking less and less likely. I would not be amazed to see this settle, if it were normal litigation. Which it isn't.

Apple tells the court on page 6 of its motion, in footnote 3, that Mac OS X uses the same embedded (in the hardware) decryption key to unlock the encrypted binaries in both Leopard and Snow Leopard, which is how customers who bought a Mac running Leopard can upgrade to Snow Leopard.

Psystar is trying to distinguish Snow Leopard, asking the Florida court to allow sale and distribution of Psytar's circumvention software and computers containing copies of Mac OSX, Apple tells the judge in Florida. But the judge in California just ruled that this exact Psystar conduct is unlawful. As for the Florida antitrust allegations Psystar is trying to bring, Apple says it's just repackaged claims that the California court dismissed over a year ago and which Psystar chose not to replead when given the opportunity. As for its first-sale arguments in Florida, it lost on that in California already.

Apple relies on the "first-to-file" rule, which you will undoubtedly remember when there were questions about which of the SCO litigations should go first, if you are an old timer here on Groklaw. Apple filed first in California, so if Psystar wishes to file claims, it should do so there, it points out, since otherwise there is a risk of conflicting rulings, which is one purpose of that rule, to avoid such an outcome. In discussing the rule, Apple says that the 11th Circuit requires a party opposing the first-filed forum to prove there are "compelling circumstances" that warrant an exception to the rule.

Even if Psystar argues that Florida is the first-filed forum for Snow Leopard, due to so differences in the EULA, the Florida judge should still send the case to California, Apple argues:

Courts in the Eleventh Circuit have consistently held that dismissal of a first-filed declaratory judgment action is warranted when that action was filed in anticipation of 'imminent' judicial proceedings.
The Eleventh Circuit courts didn't just fall off a turnip truck, I see. Psystar filed in Florida about a week before Psystar first sold any Snow Leopard computers, and a day before it even came out, so Apple never had a "good faith and reasonable basis to seek to move to amend its complaint to include Snow Leopard in the California Action". Worse, Apple says, Psystar filed but didn't inform Apple it had done so in Florida for more than two months. Apple describes it as a kind of insurance plan, in case California went badly for Psystar. That kind of tactic, designed to buy more time for infringing activity, should not be rewarded, Apple argues, so it asks for dismissal or transfer.

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