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UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

CAMERON INTERNATIONAL 

CORPORATION, 

Plaintiff, 

v. 

NITRO FLUIDS L.L.C., 

Defendant. 

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CIVIL ACTION NO. 6:20-cv-00125-ADA 

JURY TRIAL DEMANDED 

CAMERON’S RESPONSE IN OPPOSITION TO 

NITRO’S MOTION TO SUSPEND ALL PENDING DEADLINES 

The Court should deny Nitro’s Motion (ECF No. 58). Suspending the deadlines in this case 

would introduce unnecessary delay and would unfairly prejudice Cameron. As Cameron explains 

below, the facts of this case do not justify suspending any pending deadlines, and Nitro’s Motion 

is simply a thinly veiled attempt to brief its interpretation of the Federal Circuit’s mandamus Order, 

despite the Court instructing Nitro not to do so. See Ex. A. 

I. THE POSTURE OF THIS CASE DOES NOT WARRANT A STAY 

Nitro “bears a ‘heavy burden’ to demonstrate that a stay is appropriate.” Whole Woman's 

Health v. Hellerstedt, No. A-16-CA-1300-SS, 2017 U.S. Dist. LEXIS 217076, at *2 (W.D. Tex. 

Mar. 15, 2017). Nitro cannot satisfy this heavy burden by simply identifying a pending motion to 

transfer. See, e.g., Clark v. Camber Corp., No. SA-14-CV-470-DAE, 2014 WL 12580451, at *2 

(W.D. Tex. Aug. 26, 2014). Rather, the Court should consider the following factors: (1) whether 

a stay would unduly prejudice or present a clear tactical disadvantage to the nonmoving party, 

(2) whether a stay would simplify the issues in question and trial of the case, and (3) the current 

trial setting and the status of discovery in the case. See Allure Energy, Inc. v. Honeywell Int'l, Inc., 

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No. 1-15-CV-079 RP, 2015 U.S. Dist. LEXIS 86668, at *3 (W.D. Tex. July 2, 2015). None of 

these factors favors a stay in this case. 

First, Nitro’s proposed stay would prejudice Cameron and subject it to a clear tactical 

disadvantage. Cameron and Nitro offer competing fracturing fluid delivery systems. When the 

dispute centers on infringement allegations against a competitor, a stay “would afford [the alleged 

infringer] a tactical advantage while greatly prejudicing [the patent owner].” See Allure Energy, 

Inc. v. Honeywell Int'l, Inc., No. 1-15-CV-079 RP, 2015 U.S. Dist. LEXIS 86668, at *5 (W.D. 

Tex. July 2, 2015). Cameron and Nitro are competitors in the narrowing and increasingly 

competitive market for fracturing fluid delivery systems. Nitro’s continued use of Cameron’s 

patented technology undermines Cameron’s ability to compete in that market, encourages other 

potential infringers, and confuses potential customers. Nitro’s ongoing infringement also continues 

to erode the value of Cameron’s innovations. This factor thus weighs strongly against a stay. 

Second, Nitro’s proposed stay would not simplify the issues in question or the trial. Despite 

having the burden of persuasion, Nitro does not identify a single specific issue that would be 

simplified by a stay. Instead, Nitro generally alleges there is “substantial overlap between the 

patents-in-suit and accused systems here and in the Houston case,” ECF No. 57 at 3, without 

further analysis. But according to Nitro, if the Court grants transfer, then “the exact same issues 

will be adjudicated in the Houston case.” Id. Thus according to Nitro, the only apparent effect of 

a stay would be to delay discovery that it believes will happen in any case. Other courts have 

recognized often that such delays make fact discovery more difficult and complicate the case and 

trial. See, e.g., Salehi v. Bluestem Brands, Inc., No. 16-cv-0924 DMS (BGS), 2018 U.S. Dist. 

LEXIS 21686, at *7 (S.D. Cal. Feb. 2, 2018). This factor thus weighs against a stay. 

Third, the Court has set a trial date in August 2021. See ECF No. 57 at 4. To meet that date 

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the parties must complete fact discovery in the next four months. See id. at 3. This is consistent 

with the schedule that Nitro negotiated and that the parties jointly submitted only three weeks ago. 

See ECF No. 56; ECF No. 57. Nitro’s proposed stay would almost certainly require resetting the 

trial date and delaying resolution. It would also take this case out of synch with the co-pending 

Butch’s litigation, where the parties have agreed to the same schedule. Compare ECF No. 57, with

Case No. 6:20-cv-00124-ADA, ECF No. 43 (filed Oct. 28, 2020). 

As to discovery, although it is not complete, it is well under way. Nitro and Cameron have 

both propounded, and responded to, requests for production and interrogatories, and Nitro has also 

served notices of subpoena on two third parties. Nitro is wrong that continuing this progress would 

entail “unnecessary expenses.” See ECF No. 58 at 4. The parties will need to conduct the same 

discovery on these patents regardless of venue. See id. at 3 (“the exact same issues will be 

adjudicated in the Houston case”). The only apparent effect of staying discovery would be delaying 

a fair and timely resolution on the merits, whichever the ultimate venue. The current trial setting 

and progress of discovery thus weigh against a stay. 

Given that no factor favors transfer, the Court should deny Nitro’s Motion and allow this 

dispute to continue progressing toward a fair and expeditious resolution on the merits. 

II. NITRO MISSTATES THE FEDERAL CIRCUIT’S MANDAMUS ORDER 

As is evident from its substantive weakness, Nitro’s request for a stay was a pretext for 

briefing the Court on Nitro’s view of the Federal Circuit’s mandamus Order, despite this Court 

declining Nitro’s request to provide additional briefing on that issue. See Ex. A. This is also 

obvious from the fact that Nitro spends the bulk of its brief addressing the mandamus Order and 

Nitro’s (mistaken) analysis of it. See ECF no. 58 at 1-3. As to the request for a stay, Nitro spends 

only a page and a half on that topic (see id. at 3-4), where it barely addresses the relevant factors 

at all. Given the Court’s directive otherwise, Cameron will not fully brief its positions on the 

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mandamus Order here. But Cameron will briefly correct some of Nitro’s misstatements. 

First, the Federal Circuit did not conclude this Court erred in finding it should not apply 

the first-filed rule, as Nitro suggests. If the Federal Circuit believed this Court could not retain 

jurisdiction over this case, it would have reversed and remanded for transfer or dismissal. Instead, 

the Federal Circuit simply instructed this Court to clarify whether the balance of the Volkswagen

factors favor the Western District over Houston. 

Second, Nitro is wrong to suggest the Federal Circuit indicated this Court improperly 

weighed the convenience factors when it found that most were neutral and that two favored 

retaining the case. The Federal Circuit simply noted this Court needed to indicate whether “those 

factors were important enough to warrant, on balance, favoring the Western District of Texas.” 

ECF No. 54 at 6. 

Although the Federal Circuit found this Court erred in some reasoning it applied to those 

factors, it did not find that the ultimate conclusions were wrong. To the contrary, the Federal 

Circuit noted that “judicial economy might favor keeping the case given that Cameron has a 

pending action against another defendant involving the same patents asserted here and that there 

are differences between this case and the Southern District case.” Id., at 7. The Federal Circuit 

merely instructed this Court to provide additional analysis on these issues. In short, there is no 

reason to believe, as Nitro suggests, that the Federal Circuit disagreed with this Court’s decision 

not to apply the first-filed rule and to deny transfer instead. 

Third, Nitro overstates the applicability of In re Apple Inc, incorrectly implying that this 

Court cannot consider progress made in this case after it decided the original transfer motion. See

ECF No. 58 at 2 (citing No. 2020 U.S. App. LEXIS 35326 (Fed. Cir. Nov. 9, 2020)). In re Apple

decided a narrow and distinct issue. It explained that district courts should give “top priority” to 

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pending transfer motions and that “a district court's decision to give undue priority to the merits of 

a case over a party's transfer motion should not be counted against that party in the venue transfer 

analysis.” 2020 U.S. App. LEXIS 35326, at *21. 

This Court did not give “undue priority” to the merits over Nitro’s transfer motion. Most 

substantive progress occurred in the four months after this Court denied Nitro’s motion and before

the Federal Circuit vacated that order. This includes consolidating claim construction with the copending litigation against Butch’s (ECF No. 42), conducting a joint Markman hearing (ECF 

No. 51), construing all the disputed claim terms and adjudicating Nitro’s indefiniteness 

contentions (ECF No. 55), and setting a trial date (ECF No. 51). Nitro has not provided any 

authority whatsoever that suggests this substantial progress—all of which took place with no 

pending transfer motion and all of which is relevant to at least the judicial economy analysis—

should not count for weighing the propriety of transfer mere months before the close of fact 

discovery and less than a year before trial. 

Fourth, Nitro omits important information about the status of the Houston case. It is true 

that Nitro sought to amend its answers and counterclaims in Houston after Cameron filed this case, 

including to add counterclaims about infringement and validity of the patents in suit, among other 

things. It is also true that the Houston court recently granted Nitro leave to file its amended answer 

and counterclaims. But Nitro neglects to mention that Cameron has moved to dismiss the 

counterclaims in Houston related to the asserted patents in this case, and that the Houston court 

has not yet ruled on Cameron’s motion. Nitro also omits that the Houston court has asked the 

parties to update it after this Court decides whether it will retain jurisdiction (see Ex. B), which 

does not support Nitro’s bare speculation that the Houston case will proceed on the patents in this 

case regardless of this Court’s decision on Nitro’s motion to transfer. 

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CONCLUSION 

The Court should deny Nitro’s Motion and leave this case on its current track for a fair 

resolution on the merits, consistent with the current agreed schedule. 

 

DATED: November 27, 2020 Respectfully submitted, 

By: /s/ John R. Keville 

John R. Keville 

Texas Bar No. 00794085 

jkeville@winston.com 

Merritt D. Westcott (Pro Hac Vice)

Texas Bar No. 24027091 

mwestcott@winston.com 

William M. Logan 

Texas Bar No. 24106214 

wlogan@winston.com 

Evan D. Lewis (Pro Hac Vice) 

Texas Bar No. 24116670 

edlewis@winston.com 

WINSTON & STRAWN LLP 

800 Capitol Street, Suite 2400 

Houston, Texas 77002 

Telephone: (713) 651-2600 

Facsimile: (713) 651-2700 

ATTORNEYS FOR PLAINTIFF, CAMERON 

INTERNATIONAL CORPORATION 

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CERTIFICATE OF SERVICE 

I hereby certify that on November 27, 2020, I electronically filed the above with the Clerk 

of Court using the CM/ECF system, which will send notification of this filing to the following: 

J. David Cabello 

James H. Hall 

Stephen D. Zinda 

CABELLO HALL ZINDA, PLLC

801 Travis Street, Suite 1610 

Houston, Texas 77002 

david@chzfirm.com 

james@chzfirm.com 

stephen@chzfirm.com 

/s/ John R. Keville 

John R. Keville 

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