EXHIBIT 14 

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

DAEDALUS BLUE LLC *

* November 23, 2021

VS. *

* CIVIL ACTION NO. W-20-CV-73

SZ DIJ TECHNOLOGY CO., LTD, ET AL

BEFORE THE HONORABLE ALAN D ALBRIGHT

FINAL PRETRIAL CONFERENCE (via Zoom)

APPEARANCES:

For the Plaintiff: Charles E. Cantine, Esq.

Dunlap Bennett & Ludwig PLLC

349 5th Avenue

New York, NY 10016

William Flachsbart, Esq.

Dunlap Bennett & Ludwig PLLC

333 N. Michigan Ave., Suite 2700

Chicago, IL 60601

Raymond Jones, Esq.

Dunlap Bennett & Ludwig PLLC

211 Church Street SE

Leesburg, VA 20175

For the Defendant: Jacob Schroeder, Esq.

Finnegan Henderson Farabow Garrett &

Dunner LLP

Stanford Research Park

3300 Hillview Avenue, 2nd Floor

Palo Alto, CA 94304

Benjamin R. Schlesinger, Esq.

Shawn S. Chang, Esq.

Finnegan Henderson Farabow Garrett &

Dunner LLP

271 17th St. Nw Suite 1400

Atlanta, GA 30363-6209

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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J. Michael Jakes, Esq.

Jason Romrell, Esq.

Qingyu Yin, Esq.

Finnegan, Henderson, Farabow, Garrett

Kelly Lu, Esq.

& Dunner LLP

901 New York Ave. Nw

Washington, DC 20001

Michael Chibib, Esq.

Bracewell LLP

111 Congress Ave, Suite 2300

Austin, TX 78701

Court Reporter: Kristie M. Davis, CRR, RMR

PO Box 20994

Waco, Texas 76702-0994

(254) 340-6114

Proceedings recorded by mechanical stenography, transcript

produced by computer-aided transcription.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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DEPUTY CLERK: Status conference in Civil Action

6:20-CV-73, styled Daedalus Blue LLC versus SZ DJI Technology

Company, Limited and DJI Europe B.V.

THE COURT: If I could have announcements from counsel

starting with the plaintiff.

MR. CANTINE: Good afternoon, Your Honor. This is Chuck

Cantine from Dunlap Bennett & Ludwig on behalf of the

plaintiff.

MR. CHIBIB: Good afternoon, Your Honor. Mike Chibib of

Bracewell on behalf of the DJI defendants. With me from the

Finnegan law firm are Mike Jakes, Jacob Schroeder, Qingyu Yin,

Ben Schlesinger, Jason Romrell and Shawn Chang.

THE COURT: Okay. The purpose of this hearing is I want

to hear from plaintiff since they don't have a damages expert

how they intend to prove damages at trial. So I'm happy to

hear from the plaintiff.

MR. CANTINE: Thank you, Your Honor. Again, this is Chuck

Cantine.

So pursuant to the statute, Your Honor, 35 USC 284 --

THE COURT: I don't need any of the law. I don't need any

of the law. I want you to skip right over to how you're

planning to prove it at trial.

MR. CANTINE: Certainly. So the evidence we plan on

introducing to the jury, Your Honor, includes sales of the

accused products. We have licenses taken by the defendant that

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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they contend are comparable.

THE COURT: So who -- no. So who contends they're

comparable?

MR. CANTINE: The defendants produced them, Your Honor,

because they contend that they are comparable.

THE COURT: But you have no expert on your side to say

they're comparable.

MR. CANTINE: Our expert didn't think that they were

comparable, but, nonetheless, their expert did, and --

THE COURT: Well, there you go. Their expert isn't going

to get on the stand during your case-in-chief though. So you

have no one to testify that these are comparable.

MR. CANTINE: Well, I can certainly ask their 30(b)(6)

witness about it, Your Honor, and their corporate rep if their

contention is that they're comparable. But we've got two

license agreements, both lump sum, that DJI --

THE COURT: And so who testifies what relevance that has

to your damages?

MR. CANTINE: Well, again, Your Honor, we have jury

instructions that --

THE COURT: No, no, no. Look. Who testifies on behalf of

plaintiff how those licenses impact how much the damages are?

MR. CANTINE: Well, I don't know that any of our witnesses

are going to testify about that, Your Honor. We certainly have

our technical expert, but no. He's not going to opine the

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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dollar figures.

THE COURT: So you have no witness who can tell the jury

how to relate either of those licenses to any amount that you

owe that you're entitled to? You have no evidence?

MR. CANTINE: Well, the license agreements speak for

themselves about what DJI considered to be the appropriate

amount of money --

THE COURT: And what -- and who on your side says what

that -- why that makes a difference and how the jury should

take those into account in determining what amount of -- what

is the appropriate amount of damages?

MR. CANTINE: Well, I think, Your Honor, we can get it

into evidence through their -- again, through their 30(b)(6)

and then argue it in closing to the jury in --

THE COURT: No, no, no, no, no. You don't get to argue it

unless there's evidence. Evidence that this has some -- the

only reason these licenses would be reasonable is in the

context of a hypothetical negotiation where the jury could be

told by an expert these are comparable licenses that the

parties would have had and how they impact a reasonable

royalty. You have none of that to put into evidence.

MR. CANTINE: Again, Your Honor, I think the license

agreements speak for themselves. I think we can get them into

evidence, and when you look at the jury instructions --

THE COURT: No. Assuming you get them -- I'm only going

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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to go through this one more time. I'm assuming you get the

licenses into evidence. You have no one who can testify that

these are comparable or what that means or how it fits into the

calculation of a reasonable royalty. You have no one on the

plaintiff's side who can do that, correct?

MR. CANTINE: Again, other than in closing argument and in

conjunction with the jury instructions, Your Honor. That's how

we --

THE COURT: Okay. I'm going to try one more time.

Evidence. There's no one on the plaintiff's side who can

testify how the jury should consider these and how they would

impact a reasonable royalty. There's no one who can do that.

You have the licenses themselves and no person who can explain

to the jury what difference they make?

MR. CANTINE: Other than perhaps I think DJI's own

30(b)(6) witness perhaps, Your Honor. Again, I don't have his

deposition.

(Simultaneous conversation.)

MR. CANTINE: I'm sorry?

THE COURT: He's not an expert. He doesn't get to

testify -- he doesn't get to testify as to how those licenses

affect the appropriate royalty.

MR. CANTINE: Well, he can testify to the factual basis as

to why they were entered into.

THE COURT: Well, sure. What difference does that make?

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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You have no one that can tether them to your client's damages,

right?

MR. CANTINE: I don't have a witness on behalf of the

plaintiff -- a plaintiff's witness, an employee or an expert

that can do that, Your Honor.

THE COURT: Nor a defense witness who you would call out

of order if they're available.

MR. CANTINE: Well, that leaves open -- you know, there

are cases in which the plaintiff has been able to call the

defendants' damages expert in its case-in-chief under these

circumstances.

THE COURT: Well, that's not going to happen. Not under

the circumstances where I've struck it -- well, I'm not -- let

me just say I'm not going to permit you to fix your problem

that you created on your own having your expert struck by

allowing you to call the defendants' expert. That's not going

to happen. So here's where we're at. There's several tools I

have I guess. I can just enter an order that there are no

damages, but basically I'm not going to try -- I'm not going to

try a case where the plaintiff has no way of putting on a

damages case.

MR. CANTINE: Your Honor, if I can, before you rule, you

know, we do have other evidence. I have -- I wasn't finished

going through my list, but the most important one, I think if

we just cut to the chase, is we have an offer from IBM to DJI

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

8

in and around the hypothetical negotiation date for these

particular patents.

THE COURT: So?

MR. CANTINE: I'm sorry?

THE COURT: So? Who is going to -- who's going to testify

in -- that in their opinion that's a comparable -- that that's

comparable?

MR. CANTINE: Well, Your Honor, the issue is, you know,

what would IBM and DJI have agreed to at the hypothetical

negotiation? We have direct evidence of an offer made by IBM

to DJI.

THE COURT: When was the offer made?

MR. CANTINE: I believe it was 2017. So it's right

around -- it's right in the right time period. I don't have

the exact date. But it was during the negotiations. There

was -- the negotiations went on for about year and a half

between DJI and IBM. And we have the written offer from IBM to

DJI for a lump-sum agreement with some embedded royalty rates

in there. That is direct evidence of what the patent owner at

the time IBM would have accepted in the hypothetical

negotiation. And that is evidence the jury can rely on in

assessing what a reasonable royalty is.

THE COURT: But they were not -- they were not assuming

all the factors you have to assume during the hypothetical

negotiation.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

9

MR. CANTINE: Right. And the jury's going to have all the

Georgia-Pacific Factors as part of the jury instructions.

THE COURT: But they -- but there was -- but you have no

evidence of a -- you have no evidence that -- that offer was

made in an entirely different context than the context of a

hypothetical negotiation.

MR. CANTINE: It was made during negotiations, Your Honor,

prelitigation. It's -- that's direct evidence that an expert

or the jury, you know, could rely on as to what the willing

licensor would have accepted at the hypothetical negotiation at

that time. That's -- it was an offer. That's what they were

willing to take. That's the whole -- but this whole

hypothetical negotiation's trying to get to is to figure out

what these parties would have agreed to at the time. This is

direct evidence of that that the jury can certainly rely on.

THE COURT: Why is that not a settlement offer that's

excluded?

MR. CANTINE: Well, it's not made under 408, Your Honor.

It's a negotiation. It was rejected ultimately. No question

about that.

THE COURT: What do you mean it was not made under 408?

MR. CANTINE: Well, there's no evidence in the record in

the e-mail chains or in the offer itself, I don't think, that

it was a, you know -- it was an offer to enter into a fully

paid up license to resolve the dispute at the appropriate --

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

10

THE COURT: Which is what a settlement negotiation is.

Mr. Chibib, if you want to respond to the last point,

you're welcome to do so.

MR. CHIBIB: Yes, Your Honor. I believe Mr. Schroeder

will be responding.

MR. SCHROEDER: Good afternoon, Your Honor. This is Jake

Schroeder from Finnegan on behalf of defendants.

First of all, Your Honor, and perhaps this is the easiest

way to deal with this, none of the evidence that Mr. Cantine

has indicated that they would present at a damages case for

their case was identified or disclosed in their Rule 26

disclosures, nor was it identified in response to our

interrogatories asking them for all facts and theories that

they would present at this case. So --

THE COURT: Okay. I'm sorry. Mr. Schroeder, I'm sorry.

Let me interrupt you and ask plaintiff's counsel if that's

correct or not.

MR. CANTINE: I don't think that's correct, Your Honor. I

think what he's talking about is this new MLC case from the

Federal Circuit which is simply, you know, a Federal Circuit

case that affirmed the exclusion of an expert witness on three

different grounds. It has nothing to do with what happens

after the expert is excluded.

THE COURT: No. I'm -- maybe I just -- I just heard

counsel say, Mr. Schroeder say, that none of the evidence that

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

11

you're trying to put in was disclosed in an appropriate manner

for it to be admissible, and I want your response to that.

MR. CANTINE: Sitting here today, Your Honor, I don't know

exactly what we said in every interrogatory response, but I can

certainly tell you in the complaint and in others we said we

are going to seek no less than a reasonable royalty which is

what the statute --

THE COURT: Well, that's just the law. I'm having a hard

time -- I have a really hard time when I ask questions that I

think can -- I can get a direct answer for and I don't get it.

It makes me figure either I'm not doing a good job asking my

question, which may be true after spending eight hours or nine

hours in a hearing which I just finished, but the more

likely -- my more likely assumption is that you're not

answering my question. So I'll try again. I just heard

Mr. Schroeder state on the record as an officer of the Court

that the evidence that you're trying to persuade me would come

in was not properly produced during the case. Is that true or

not true?

MR. CANTINE: I don't think that's true, Your Honor, and,

again, I don't have the --

THE COURT: Well, I need -- tell me what -- tell me what

it is that you are trying to put in that you are certain

Mr. Schroeder's wrong about. Any of the stuff that you're

talking about, tell me any -- all the stuff that you are

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

12

certain Mr. Schroeder is wrong about that -- whether it was

properly produced during the case.

MR. CANTINE: Well, I'll start with the IBM --

THE COURT: Okay. I got the IBM license. Anything else?

MR. CANTINE: Well, Your Honor, that was produced by DJI.

So, you know, how was I supposed to -- I'm sure we disclosed at

some point in our interrogatory responses or otherwise.

There's not something that I could cite to in my initial

disclosures because we learned about it during discovery.

That's an example. You know, I'd have to go back and look and

see exactly when we disclosed it to them.

THE COURT: What else?

MR. CANTINE: Same. I know you're going to fight me on

it, but the licenses taken by DJI. Obviously we didn't know

about those until discovery. We do have evidence that our

client actually purchased these patents from IBM, and I'm

pretty sure we disclosed that in discovery. And then we have

the notice from IBM to DJI putting them on notice of

infringement. Again, that was produced to us by DJI. We

didn't have that until we got into discovery. And same with

the sales information. Obviously we didn't have that until we

got in discovery. So all this information that we're relying

on now that we're going to submit to the jury was information

that was provided to us during discovery.

THE COURT: Mr. Schroeder, what exactly are you suggesting

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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the plaintiff wants to use that was not produced in a timely

manner?

MR. SCHROEDER: Yes, Your Honor. I'm looking at Daedalus'

Rule 26 disclosures under damages computation, and I know these

are the initial disclosures.

THE COURT: Were they ever -- were they ever amended and

was anything added to them?

MR. SCHROEDER: No, Your Honor. They were never amended,

and I'm reading, it says: Plaintiff will respond to this

disclosure item at the time set by the docket control order in

this action as it relates to disclosure of expert testimony,

period. Plaintiff anticipates serving defendants with the

damages expert report and plaintiff hereby incorporate that

report by reference herein.

And if I can pause there before addressing their response

to Interrogatory No. 7, Your Honor, plaintiff's counsel has

mentioned they intend to rely on licenses taken by DJI, but I

know their expert report has been stricken, but their expert

said that those were noncomparable at all. He said these are

not comparable. And he said that true as well for any evidence

of patent owners' licenses of the technology as well. So to

now hear them come in and say they're now going to say those

are comparable, this is an entirely new theory not disclosed in

response to Rule 26 which is exactly what that PLC or that

Micron case that we cited is about.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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And then, additionally, they identified Mr. Gomez who was

their principal in their initial disclosures. He's the only

individual they identified as having damages information. And

I took his deposition and I asked him if he had any evidence.

I said, what do you contend the appropriate royalty rate is

that DJI should pay for a license to Daedalus' '232 and '913

patent?

And he answered: I don't have an opinion on that.

And then I said: Okay. Outside of Rule 408, do you have

any facts you're going to offer as far as what the appropriate

lump-sum royalty should be?

And his answer: I do not have any facts as I sit here

today. No.

And he was their only corporate representative on the

issue of damages.

And in response to Interrogatory No. 7 which we issued --

THE COURT: Mr. Schroeder?

MR. SCHROEDER: Yes, Your Honor.

THE COURT: Mr. Schroeder, and just so I'm getting the

right nomenclature, when he answered those questions, he didn't

have any evidence -- was he a 30(b)(6) witness or was it in his

individual capacity?

MR. SCHROEDER: It was both, Your Honor. He was the sole

30(b)(6) for plaintiff and he also answered -- you know, to the

extent it was beyond the scope in his personal capacity as

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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well.

THE COURT: So you have the testimony of the plaintiff's

30(b)(6) witness speaking on behalf of the corporation saying

that he can't tell you either what a reasonable royalty or a

lump sum amount would be, right?

MR. SCHROEDER: Yes, Your Honor. And to be fair, he did

say that the company would likely put on that testimony through

an expert which has now been stricken.

THE COURT: No. I get it. I get that, but the corporate

representative speaking on behalf of the corporation said, I

don't have anything to testify about?

MR. SCHROEDER: Yes, Your Honor. I read directly from the

deposition transcript. I can put it up on the screen, but I

understand Your Honor might not be able to see that right now.

And I know my Internet connection has been weak today too,

but...

THE COURT: If you have it, why don't you at least -- why

don't you give the page number that you're reading from at the

deposition? That would help.

MR. SCHROEDER: Yes, Your Honor. So it's Page 184 and 185

of Mr. Gomez' deposition as it concerns damages. And also on

Page 185 there's also some relevant testimony about how they're

not actually seeking any injunctive relief. I don't think

there's any dispute here about that.

THE COURT: And nor could they in their capacity.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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So let me see if I have the lay of the land correct. The

corporate representative represented to you that the

corporation had no information, and the position that the

company wants to take now without an expert is diametrically

the opposite -- with regard to the licenses diametrically

opposite to the position that their expert took. So to the

extent the 30(b)(6) witness said, I'm going to rely on an

expert, the expert said exactly the opposite of the argument

they want to make at trial now; is that correct?

MR. SCHROEDER: With respect to the evidence of licenses

taken by my client DJI, that's exactly correct.

Georgia-Pacific Factor No. 2 on Mr. Pellegrino's report he said

all of those were noncomparable, and that's on Page 39 of his

report. And the page prior where he addresses Georgia-Pacific

1, he said evidence of patent owners' prior license activity is

also not relevant.

THE COURT: And so when you prepared your expert report,

you prepared it with the understanding that it was the

plaintiff's position that those licenses were not applicable,

correct?

MR. SCHROEDER: Yes, Your Honor. And, I mean, the only

disclosure that we got from plaintiff was that. And as I

mentioned, in their Rule 26 disclosures they never indicated

that those were, nor did they in response to interrogatories.

In response to Interrogatory No. 7 which asked for them to

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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state in detail all financial remedies, including factual,

legal and evidentiary bases for them, they simply referred to

their subsequent disclosure of an expert report. And that's

it. Oh, and they also mentioned infringement contentions which

don't have anything related to do with damages and related

documentation, but there is nothing else that indicates that

this was going to be their theory now. And so even if the law

says a plaintiff should be entitled to a reasonable royalty,

it's still the plaintiff's burden to prove it through

admissible evidence, and here we contend there is none.

THE COURT: With respect to Rule 26, they never amended

that answer that they gave you saying basically they weren't

going to give you anything but an expert report, and they also

never invoked, I think it's 26(c), but I could be wrong, they

never invoked the ability under Rule 26 to provide a lay

witness as long as the lay witness gave a statement in advance

so he could be deposed, correct?

MR. SCHROEDER: You're correct, Your Honor. They never

amended their Rule 26 disclosures nor did they identify any lay

witness who would be providing expert type testimony as to

hypotheticals other than the testifying expert they did

disclose which was Mr. Pellegrino.

THE COURT: Okay. And I've interrupted you a bunch, and

so you can continue with whatever it was you were trying to

argue to me.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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MR. SCHROEDER: That was the remaining points I wanted to

make, Your Honor, is this really comes down to it is not an

issue that a damages expert is required in every case, but in

those cases where a plaintiff is going to go in without an

expert or is going to provide sufficient proof of their damages

through fact witness testimony or lay witness testimony, they

need to put the other side on notice through Rule 26

disclosures, responses to interrogatories and so on. And here

plaintiffs went all in on the one theory they did disclose in

their expert report, and that's the theory that Your Honor had

held was unreliable and shouldn't be presented to the jury.

And so for that reason DJI's position is that the Court

should enter a judgment of zero damages based on the record

we've got so far and the inability of plaintiff to have any

admissible evidence to prove damages for their case.

THE COURT: Well, let me ask you about that. If I enter a

judgment of zero damages, why would there be a judgment -- I'm

just trying to figure this out. There would be no finding of

infringement or noninfringement, either one, because there had

been no trial. So from your perspective as a defendant, do you

think the best scenario here, given the situation, is I enter a

judgment essentially saying that the plaintiff take nothing?

Is that correct?

MR. SCHROEDER: Your Honor, yeah. I think our position

here would be that Your Honor should enter a dismissal with

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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prejudice that plaintiff takes nothing because irrespective of

Your Honor's findings or the Court's findings, if we were to

proceed on infringement or validity, it would simply be

advisory because even in that circumstance there would be no

damages. So dismissal with prejudice is probably the safer way

to proceed due to failure to establish any damages.

THE COURT: Understood. Is there anything else you wanted

to say before I flip back over to plaintiff's counsel?

MR. SCHROEDER: Not at the moment, Your Honor. Thank you.

THE COURT: Okay. Very good. I'll hear from plaintiff's

counsel and any issues you want to take up.

MR. CANTINE: Thank you, Your Honor. Let me just touch

base on these licenses by DJI again. We're not offering them

as comparable. We're offering them for the fact that DJI

accepts lump sum payments as a form of compensation for its

licenses. That's number one. So I agree our technical expert

said that these were not comparable. There's no dispute on

that.

In terms of amending our initial disclosures, again, all

the evidence we are relying on here came during discovery. We

identified in our discovery responses that this was going to --

the contentions of our damages claim were going to be in the

expert report. Those contentions haven't changed. It's just

the form in which they're coming in has now changed in light of

Your Honor's order.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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I think we have -- the case law -- I know you don't want

to talk about the case law but the case law is if we prove

infringement, we're entitled to damages. The only case that

addresses where zero damages are appropriate is the Apple v.

Motorola case, and in that case they found no damages because

it was the rare instance -- or they said one -- the only

instance where this would make sense is if at the hypothetical

negotiation the parties agreed that zero dollars was an

appropriate way to resolve the issue. We don't have that here.

So, again, I would say the case law's clear that if we

prove infringement, we are entitled to a reasonable royalty.

And I think we have sufficient evidence from which the jury can

make that determination in conjunction with the jury

instructions.

The only other point I wanted to make, Your Honor, is if

you're inclined to simply dismiss our case with prejudice and

issue some sort of take nothing order, I think the more

appropriate way to do this would be to take the case off the

calendar and do it via summary judgment. I don't think making

that ruling, which is akin to a summary judgment ruling, even I

think the defendants' counsel would concede, the more

appropriate way to do that under Rule 56 is to let us brief it

instead of having, you know, a couple of e-mails in a couple of

hours and making a decision.

THE COURT: No. I think that's totally fair as well.

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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And, again, I'm trying to find the right vehicle to protect

both parties, including you, so that if -- whatever decision I

make you have the ability to have the Federal Circuit, you

know, tell me if I made the right decision. So, you know,

I'm -- it strikes me -- let's do -- let's do that. I think

I'll have the defendant file a motion for summary judgment that

they are entitled to a -- I'm not going to tell them what to

do, but essentially what I'm persuaded by here is that because

there are no damages -- there would be no damages, then the

opinion would be an advisory opinion and therefore I should

enter judgment and the plaintiff can respond to that, and in

that response put whatever evidence they care to in to

establish that they think they would be able to establish

damages at trial if I allowed it to go to trial. And that way

I'll have everything that you guys can put forward to me, and

if I decide that a trial's appropriate, then I can deny the

summary judgment and set it for trial. So I think that's a

very workable way of doing it.

MR. CANTINE: Do you want to talk dates on that stuff now,

or do you want to wait?

THE COURT: You know, my clerks don't let me do stuff like

that. So what I would suggest you do is the -- this will be

the defendants' motion. I would suggest that you two talk.

The defendant can give you a date when they think they can get

a motion for summary judgment filed by, and then I don't see

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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any reason to hold you guys tight to the deadlines for the

summary judgment. You let the defendant know when you can get

a response filed. They'll -- and I don't want you to take nine

months, but I'm just saying if it takes you an extra week or

two to do all this stuff, that's fine. And then the defendant

can take the time they need to reply. And what I would suggest

to you all is that when the -- when everything's complete and

all the pleadings have been filed that you give us a heads-up

so we know it's ripe and we can address it. Does that work for

the plaintiff?

MR. CANTINE: That does, Your Honor. And just to confirm,

we're taking it off the trial date obviously, right? Off the

calendar?

THE COURT: We are. Yes, sir.

MR. CANTINE: Okay.

THE COURT: We are. Does that work for both parties? If

not, someone let me know and I'll try to adjust.

MR. SCHROEDER: That works for defendants, Your Honor.

This is Mr. Schroeder.

THE COURT: And for plaintiff?

MR. CANTINE: Yes, Your Honor. That works. Thank you.

THE COURT: Okay. You guys coordinate the deadlines and

just -- I think this is Jeffrey's case. You know, just kind of

give him a heads-up on where you're at on all this stuff, but

he's on the call, so he's heard all this. But just let us know

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

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when it's ripe and we'll take it up then.

You guys have a great Thanksgiving and take care. Bye.

(Hearing adjourned at 5:07 p.m.)

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KRISTIE M. DAVIS, OFFICIAL COURT REPORTER

U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (WACO)

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UNITED STATES DISTRICT COURT )

WESTERN DISTRICT OF TEXAS )

I, Kristie M. Davis, Official Court Reporter for the

United States District Court, Western District of Texas, do

certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter.

I certify that the transcript fees and format comply with

those prescribed by the Court and Judicial Conference of the

United States.

Certified to by me this 27th day of November 2021.

/s/ Kristie M. Davis

KRISTIE M. DAVIS

Official Court Reporter

800 Franklin Avenue

Waco, Texas 76701

(254) 340-6114

kmdaviscsr@yahoo.com

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