Alifax Holding Spa v. Alcor Scientific Inc. et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
ALIFAX HOLDING SPA, 	)
)
Plaintiff, 	)
)
v. 	) 	C.A. No. 14-440 S
)
ALCOR SCIENTIFIC INC.; and 	)
FRANCESCO A. FRAPPA, 	)
)
Defendants. 	)
___________________________________)
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Plaintiff 	Alifax 	Holding 	SpA 	requests 	an 	order 	striking 	the
declarations of defendant Francesco Frappa (ECF No. 171-7) and the
Defendants’ 	computer 	code 	expert 	Daniel 	Smith 	(ECF 	No. 	171-11)
submitted in support of the Defendants’ Reply Memorandum in Support
of 	Defendants’ 	Motion 	Summary 	Judgment 	(ECF 	No. 	171-2). 	(See 	ECF
No. 	175.) 	Alifax 	argues 	that 	the 	affidavits 	are 	improper 	and 	un-
timely 	under 	this 	district’s 	local 	rules 	and 	Rule 	6(c) 	of 	the
Federal Rules of Civil Procedure. 	The Court is not persuaded that
Defendants’ 	submitted 	these 	declarations 	in 	violation 	of 	either
rule. 	Accordingly, 	for 	the 	reasons 	set 	forth 	herein, 	Alifax’s
motion to strike is DENIED.
Case 1:14-cv-00440-MSM-AEM Document 194 Filed 10/16/18 Page 1 of 7 PageID #:
<pageID>

2
I. 	Discussion
Alifax’s asserts two bases for striking the Frappa and Smith
declarations: the Defendants violated LR Cv 7(a)(4) and Rule 6(c)
by submitting these declarations with the Defendants’ reply memo-
randum rather than their motion to for summary judgment.
a. Local Rule LR Cv 7(a)(4)
LR 	Cv 	7(a)(4) 	provides, 	in 	relevant 	part, 	“[a] 	reply 	shall
not present matters that do not relate to the response, or reargue
or expand upon the arguments made in support of the motion.” 	This
Court has “great leeway in the application and enforcement of its
local rules.” 	United States v. Roberts, 978 F.2d 17, 20 (1st Cir.
1992).
One of the principal disputes in this action is whether ele-
ments of the source code developed by Alifax for its ESR analyzer
were 	improperly 	copied 	into 	code 	used 	in 	Alcor’s 	competing 	ESR
analyzer, 	the 	“iSED.” 	(See, 	e.g., 	Second 	Am. 	Compl. 	¶¶ 	77-85.)
The focal point of this disagreement concerns whether a particular
iteration 	of 	the 	iSED 	software 	– 	version 	1.04A 	- 	used 	certain
conversion constants from Alifax’s source code. In support of sum-
mary judgment, Alcor argues that the iSED’s conversion parameters
are 	necessarily 	“device 	dependent” 	and 	that 	any 	variant 	of 	the
iSED software containing Alifax’s constants was regardless “a pre-
Case 1:14-cv-00440-MSM-AEM Document 194 Filed 10/16/18 Page 2 of 7 PageID #:
<pageID>

3
production 	version 	that 	never 	shipped 	in 	any 	functional 	iSED 	ma-
chine.” 	(Defs.’ Mem. In Support of Mot. for Partial Summary Judg-
ment 21, 26, ECF No. 147-1.)
Objecting to summary judgment, Alifax attempts to rebut this
argument through a declaration from its expert, Dr. Bryan Bergeron.
(Pl.’s 	Mem. 	of 	Law 	in 	Opp’n 	to 	Defs. 	Mot. 	for 	Partial 	Summary
Judgment 	(“Pl.’s 	Opp’n”) 	21, 	ECF 	No. 	161-1; 	Pl.’s 	St. 	of 	Addt’l
Undisputed 	Facts 	¶¶ 	174-185.) 	In 	a 	short 	statement, 	Dr. 	Bergeron
opines that, based on his review of the available evidence, soft-
ware version 1.04A was installed on eleven iSED devices “manufac-
tured and calibrated before June 2013.” 	(Pl.’s Opp’n Ex. P at 2,
ECF 	No. 	163-18.) 	Bergeron 	previously 	opined 	that 	he 	observed 	the
disputed 	conversion 	constants 	during 	his 	review 	of 	software 	ver-
sion 	1.04A. 	(See, 	e.g., 	Defs.’ 	St. 	of 	Undisputed 	Facts 	Ex. 	9 	at
25-26, ECF No 137-13.) Taken together, these statements frame out
an inference that the software installed on particular iSED devices
sold to customers included Alifax’s conversion constants.1
Alcor, through the Frappa and Smith declarations, argues that
Bergeron’s 	conclusion 	and 	inferences 	flowing 	therefrom 	are 	con-
trary to facts that cannot be genuinely disputed. (See Defs.’ Reply
1 At this juncture, the Court need not, and does not, decide whether
Alifax is entitled to this inference or whether the Bergeron dec-
laration or other evidence demonstrates that a genuine dispute of
material fact exists concerning this issue. 	Those issues are left
for another day.
Case 1:14-cv-00440-MSM-AEM Document 194 Filed 10/16/18 Page 3 of 7 PageID #:
<pageID>

4
Mem. 	in 	Support 	of 	Defs.’ 	Mot. 	for 	Partial 	Summary 	Judgment 	17-
19, ECF No. 171-2.) 	Frappa’s declaration (1) explains an exhibit
to Alcor’s Motion for Summary Judgment showing the software version
installed at the manufacture or last date of service for particular
iSED 	devices; 	and 	(2) 	attests 	that, 	regardless, 	software 	Version
1.04A 	did 	not 	include 	Alifax’s 	proprietary 	conversion 	algorithm.
(See Frappa Decl. ¶¶ 4-7, 10-20, ECF. No. 171-7.) 	Smith’s decla-
ration 	purports 	to 	corroborate 	Frappa’s 	assertions 	and 	restates
the conclusion from his rebuttal report that only the pre-produc-
tion 	version 	of 	1.04A 	contained 	Alifax’s 	conversion 	constants.
(See Smith Decl. ¶¶ 6-9, ECF. No. 171-11; Rebuttal Expert Rpt. of
Daniel 	Smith, 	ECF 	No. 	137-32, 	¶ 	4) 	On 	their 	face, 	these 	declara-
tions 	“relate 	to 	[Alifax’s] 	response” 	and 	thereby 	satisfy 	LR 	Cv
7(a)(4).
b. Rule 6(c)
Alifax’s second argument is equally unavailing. 	If an affi-
davit supports a motion, pursuant to Rule 6(c) the affidavit “must
be 	served 	with 	the 	motion.” 	The 	rule’s 	text 	does 	not 	address
affidavits or declarations specifically submitted to support reply
memoranda. 	See 	id. 	The 	absence 	of 	any 	express 	prohibition 	has
led many courts to conclude that sworn statements responding to an
opposition 	memorandum 	may 	properly 	be 	filed 	with 	a 	reply. 	See,
e.g., 	Dubinsky 	v. 	Liberty 	Surplus 	Insurance 	Corporation 	et 	al.,
No. 	CV 	08-06744-MMM-SHX, 	2010 	WL 	11506086, 	at 	*5 	n.44 	(C.D. 	Cal.
Case 1:14-cv-00440-MSM-AEM Document 194 Filed 10/16/18 Page 4 of 7 PageID #:
<pageID>

5
June 15, 2010) (“Evidence submitted in support of a reply brief is
proper if it rebuts arguments or exhibits proffered in opposition
to 	the 	motion.”); 	Doolittle 	v. 	Structured 	Invs. 	Co., 	LLC, 	No. 	CV
07-356-S-EJL-CWD, 	2008 	WL 	5121591, 	*3 	(D. 	Idaho 	Dec. 	4, 	2008)
(“[R]eply 	affidavits 	that 	respond 	only 	to 	the 	opposing 	party's
brief 	are 	properly 	filed 	with 	a 	reply 	brief”); 	McGinnis 	v. 	Se.
Anesthesia 	Assocs., 	P.A., 	161 	F.R.D. 	41, 	42 	(W.D.N.C. 	1995) 	(“To
strike 	the 	Defendant's 	reply 	affidavits 	would 	conflict 	with 	Rule
6(d)'s 	ultimate 	objective 	of 	resolving 	this 	motion 	on 	its 	mer-
its.”). 	The Court perceives no reason to depart from these rulings
here.
This conclusion is not only consistent with the rule’s plain
language, but also its spirit, which seeks to minimize the risk of
prejudice caused by unfair surprise. 	See Peters v. Lincoln Elec.
Co., 	285 	F.3d 	456, 	476 	(6th 	Cir. 	2002) 	(“Fed. 	R. 	Civ. 	Pro. 	6's
requirement that cause be shown for affidavits not attached to the
original 	motion, 	is 	designed 	to 	prevent 	the 	moving 	party 	from
springing 	new 	facts 	on 	the 	nonmoving 	party 	‘when 	it 	is 	too 	late
for 	that 	party 	to 	contest 	them.’”) 	(quoting 	Republic 	Bank 	Dallas
v. 	First 	Wis. 	Nat'l 	Bank 	of 	Milwaukee, 	636 	F. 	Supp. 	1470, 	1472
(E.D. 	Wis. 	1986)); 	accord 	Orsi 	v. 	Kirkwood, 	999 	F.2d 	86, 	91 	(4th
Cir. 	1993). 	Here, 	Alifax 	has 	failed 	to 	articulate 	any 	prejudice
Case 1:14-cv-00440-MSM-AEM Document 194 Filed 10/16/18 Page 5 of 7 PageID #:
<pageID>

6
whatsoever.2 	Alifax 	had 	months 	to 	assess 	the 	Frappa 	and 	Smith
declarations prior to the hearing on Defendants’ motion for summary
judgment. 	Compare 	Cia. 	Petrolera 	Caribe, 	Inc. 	v. 	Arco 	Caribbean,
Inc., 754 F.2d 404, 409 (1st Cir. 1985) (no cause shown for filing
affidavits 	on 	day 	of 	motion 	hearing, 	leading 	to 	unfair 	surprise
and prejudice); see also Vais Arms, Inc. v. Vais, 383 F.3d 287, 292
(5th Cir. 2004). (“[T]hose circuits that have expressly addressed
this 	issue 	have 	held 	that 	a 	district 	court 	may 	rely 	on 	arguments
and evidence presented for the first time in a reply brief as long
as 	the 	court 	gives 	the 	nonmovant 	an 	adequate 	opportunity 	to 	re-
spond.”). 	Alifax 	could 	have 	sought 	leave 	to 	further 	supplement
the 	record 	based 	on 	the 	substance 	of 	either 	declaration; 	it 	did
not. 	Bearing 	these 	facts 	in 	mind, 	Alifax’s 	hypertechnical 	inter-
pretation of Rule 6(c) rings hollow.
Indeed, 	it 	is 	the 	Defendants 	– 	not 	Alifax 	– 	who 	plausibly
raise the alarm of unfair surprise. 	(See Defs.’ Opp’n to Mot. to
Strike 2, ECF No. 188). 	A review of the summary judgment record,
which 	includes 	Dr. 	Bergeron’s 	reports, 	statements 	and 	excerpted
deposition testimony, reveals no clear disclosure of the specific
2 On the contrary, Alifax suggest the allegedly non-compliant dec-
larations 	demonstrate 	the 	existence 	of 	disputed 	facts 	that 	pre-
clude summary judgment. (See Pl.’s Mot. to Strike 2, ECF No. 174.)
Case 1:14-cv-00440-MSM-AEM Document 194 Filed 10/16/18 Page 6 of 7 PageID #:
<pageID>

7
opinion contained in his declaration.3 	Alcor was therefore enti-
tled to respond by way of the Frappa and Smith declarations. 	See
Peters, 285 F.3d at 477 (“While the Rules are silent as to timing
matters with reply affidavits, precedent establishes that, in the
face 	of 	new 	evidence, 	the 	court 	should 	permit 	the 	opposing 	party
an opportunity to respond”).
II. 	Conclusion
For the aforementioned reasons, Alifax’s Motion to Strike the
Untimely 	Declarations 	of 	Francesco 	Frappa 	and 	Daniel 	Smith 	(ECF
No. 174) is DENIED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: October 16, 2018
3 	Alcor 	has 	not 	moved 	to 	strike 	the 	opinion 	or 	Dr. 	Bergeron’s
declaration.
Case 1:14-cv-00440-MSM-AEM Document 194 Filed 10/16/18 Page 7 of 7 PageID #:
<pageID>