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Apple Files Reply in Florida Action Re Apple's Motion to Dismiss or Transfer Venue
Wednesday, December 23 2009 @ 11:23 PM EST

Apple has filed its reply to Psystar's Response [PDF] to Apple's motion to dismiss or transfer venue [PDF]. Is that sentence clear? To amplify, Apple filed a motion to dismiss or to transfer venue in Florida, where Psystar had filed a case against Apple midstream in the California action, and Apple wants it either brought to an end or if not, sent to California.

All that is on the table in Florida is the issue about Rebel EFI, and in Psystar's dreams its reheated antitrust accusations, but Apple wants this all to be over or at least not to have to keep travelling to Florida to finish the farce, and so it tells the judge in Florida about the recent ruling in California on December 15, ordering a permanent injunction against Psystar, which, in Apple's view, reinforces and confirms that "this case should be dismissed or transferred to the Northern District of California."

Apple gives the court a real earful about what Psystar has been doing and accuses Psystar of misrepresentations to the Florida court in its filing.

Here's the filing:

12/21/2009 - 11 - REPLY to Response to Motion re 4 Defendant's MOTION to Dismiss 3 Amended ComplaintMotion to Change Venue MOTION for Order of SaleDefendant's MOTION to Dismiss 3 Amended Complaint filed by Apple Inc.. (Attachments: # 1 Exhibit 1 - 7)(Schafer, Harry) (Entered: 12/21/2009)

The introduction goes like this:
New events in the California Action further confirm that this case should be dismissed or transferred to the Northern District of California. On December 15, 2009, Judge Alsup entered a broad injunction on the grounds that enjoining "Psystar from continuing to commit infringing and illegal, if not criminal, acts under the Copyright Act and DMCA would ensure that the public will continue to benefit from the creative fruits of Apple's labor." See Ex. 1 at 8. The injunction prohibits Psystar from infringing or inducing others to infringe Apple's copyrights in Mac OS X (including Snow Leopard) and circumventing, or trafficking in technology designed to circumvent, the technological protection measures in Mac OS X. Id. at 16-17.

Judge Alsup retained jurisdiction "to enforce the judgment and permanent injunction." Id. at 15, 17. To resolve any potential uncertainty surrounding any existing or new Psystar product, Judge Alsup stated that Psystar may move the California court for a declaration that the product does not violate Apple's rights under the Copyright Act and the DMCA. A few days ago, Psystar announced its intent to file such a motion. Ex. 2 (Psystar website and 12/18/09 ComputerWorld Article). Judge Alsup also emphasized that he would hear any contempt motions by Apple if Psystar violates the injunction. Ex. 1 at 15, 17. Thus, the manufacture and sale of Rebel EFI -- the only product that Psystar now claims is relevant -- will be the subject of a "vetting" motion by Psystar or a contempt motion by Apple in the California court. Id. Consequently, all of the legal and factual issues in the instant action have already been, or will be, before Judge Alsup.

Psystar's arguments against dismissal or transfer of the instant case are unavailing. First Judge Alsup never stated that this action should remain pending in Florida or that Rebel EFI was excluded from the California action (see Ex. 3 (Order on Motion to Enjoin) at 2) and the new permanent injunction order entered by Judge Alsup just days ago effectively ensures that Rebel EFI will be the subject of further proceedings in California. Second, the case is a repackaging of the same legal (copyright, DMCA and antitrust) and factual issues (distribution of circumvention software, with or without hardware) that are the subject matter of the California action. Because of the substantial overlap in fact and law between the California and Florida cases, the first-filed rule applies and the Florida lawsuit should be dismissed or transferred. Third, even if this case were the first-filed, which it is not, Psystar's filing of the instant action was anticipatory. Psystar cannot legitimately assert that, in the midst of the California Action, it lacked notice of Apple's intent to enforce its copyrights in Mac OS X. Lastly, the interests of justice, efficiency and judicial economy require the dismissal or transfer of this action to California. Allowing Psystar to proceed with this lawsuit will result in duplicative litigation with potentially conflicting judgments and delay that would only benefit Psystar -- an adjudged infringer.

That says it all. Kidding. If you continue to read, Apple amplifies each point, starting with Psystar's misrepresenting the scope of the California Court's orders on the motions to halt Psystar's prosecution of the Florida Action and for summary judgment, as Apple puts it. "Psystar's opposition misrepresents Judge Alsup's rulings in the California case," Apple tells the Florida court, a serious matter. "Psystar incorrectly asserts that the California court previously rejected the arguments Apple makes here to support its motion to dismiss or transfer. But Judge Alsup expressly reserved judgment on the merits of a transfer motion."

I can't figure out why Psystar would do that. It's a real puzzlement. Judge Alsup called them on misrepresentation also, and I can't think of any good reasons why an attorney would do that. It's kind of like a Linux kernel guy introducing infringing code into the kernel. It's bound to be noticed and then there is you know what to pay. In fact, Apple mentions Judge Alsup's statement in footnote 1, "Psystar continues to grossly mischaracterize prior rulings in this case". Like I say, 'tis a puzzlement to me.

Apple is telling the Florida court that Judge Alsup retained jurisdiction. That means that he isn't letting go of the enforcement of the injunction he ordered. And since he mentioned Rebel EFI in that context, Apple is letting the judge in Florida know that there is overlap and that a prior judge in a prior filed action has jurisdiction. The purpose is to counter Psystar's position that it filed first in Florida about Rebel EFI. It will be up to the Florida judge to decide whose arguments to accept on this point, but if he lets the Florida action go forward, Apple is letting him know that there could be conflicting rulings, and that California got there first on jurisdiction regarding the injunction. In a normal universe, that argument ought to prevail, but you never know for sure what a court will do, only what it *ought* to do.

You can find all the filings in both California and Florida on our Psystar Timeline page, by the way.

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