The Facebook, Inc., et al v. ConnectU, Inc., et al
Filing
180
Filed (ECF) Intervenors Divya Narendra, Cameron Winklevoss and Tyler Winklevoss in 08-16745, Appellants Divya Narendra, Cameron Winklevoss and Tyler Winklevoss in 08-16873, 09-15021 Motion to recall the mandate. Date of service: 05/21/2011. [7760396] [08-16745, 08-16873, 09-15021] (SMS)
CA Nos. 08-16745, 08-16873, 09-15021 (consolidated)
DC No. C 07-01389 JWW
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE FACEBOOK, INC.; MARK ZUCKERBERG,
Plaintiffs-Appellees,
DIVYA NARENDRA; CAMERON WINKLEVOSS;
TYLER WINKLEVOSS,
Intervenors,
v.
PACIFIC NORTHWEST SOFTWARE, INC.;
WAYNE CHANG; WINSTON WILLIAMS,
Defendants.
Appeal From Judgment Of The United States District Court
For The Northern District Of California
(Hon. James Ware, Presiding)
MOTION TO RECALL MANDATE
JEROME B. FALK, JR.
SEAN M. SELEGUE
SHAUDY DANAYE-ELMI
NOAH S. ROSENTHAL
HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN
A Professional Corporation
Three Embarcadero Center, 7th Floor
San Francisco, California 94111
Telephone: 415/434-1600
Attorneys For Appellants and
Intervenors Divya Narendra, Cameron
Winklevoss and Tyler Winklevoss
Appellants
and
Intervenors
Cameron
Winklevoss,
Tyler
Winklevoss and Divya Narendra (“Appellants”) hereby move this
Court to recall the mandate issued in the above-captioned appeal on
May 16, 2011. This request is made to prevent potentially unnecessary
proceedings
from
going
forward
in
the
District
of
Massachusetts.
As noted in Appellants’ Opening Brief, the disputed settlement at
issue on this appeal related to two cases, one in the Northern District
of California and another in the District of Massachusetts.
In
September 2009, the Massachusetts court put the action before it on
hold pending completion of proceedings in the Ninth Circuit.
Request for Judicial Notice in Support of Appellants/Intervenors’
Motion to Recall Mandate (“RJN”) Ex. A at 2. The Massachusetts
court noted that “there [was] no need to keep these cases active in
this Court while the fundamental question of the enforceability of the
settlement agreement moves toward resolution [in the Ninth Circuit].” To that end, the Massachusetts court terminated all pending
motions before it and ordered that those motions could be “reassert[ed] . . . no later than 30 days after the issuance of any mandate
of the United States Court of Appeals for the Ninth Circuit.” Id. at
-1-
2-3. That 30-day deadline began running on May 16, 2011, when the
Clerk of this Court issued the mandate.1
Among the motions that the Massachusetts court terminated pursuant to the above-described order was Appellants’ motion to impose
a sanction of non-dismissal due to the failure of Facebook and
Mr. Zuckerberg to produce certain documents in discovery. Recently,
in a status report to the Massachusetts court, Appellants stated their
intention to file a Rule 60 motion based on discovery misconduct in
the event that the disputed settlement is not rescinded. RJN Ex. B.
Under the Massachusetts court’s order, those matters will proceed
there unless this Court recalls the mandate.
Appellants believe that it is sensible for the Massachusetts proceedings to remain on hold until the Supreme Court rules on their
1
The mandate appears to have issued prematurely. Pursuant to
Rule 41 of the Federal Rules of Appellate Procedure, “[t]he court’s
mandate must issue . . . 7 days after entry of an order denying a
timely petition for panel rehearing, petition for rehearing en banc, or
motion for stay of mandate, whichever is later. The court may
shorten or extend the time.” However, the Clerk issued the mandate
on the same day that rehearing was denied, without a ruling that
See
exceptional circumstances warranted immediate issuance.
Ninth Cir. Gen. Order 4.6.a (“It is the policy of this court that only in
exceptional circumstances should a panel order the issuance of mandate forthwith . . .”). Accordingly, Appellants did not have the opportunity to seek a stay of issuance of the mandate. See also
CHRISTOPHER A. GOELZ & MEREDITH J. WATTS, NINTH CIRCUIT CIVIL
APPELLATE PRACTICE ¶10:509 (2011) (immediate issuance of the
mandate only occurs “in exceptional circumstances”) (emphasis in
original).
-2-
anticipated petition for certiorari. If certiorari is granted and the
settlement is ultimately rescinded as Appellants request, then any
proceedings that have taken place in Massachusetts based on the
assumption that the settlement was enforceable would either be
moot or need to be reconsidered in light of the new development that
the settlement has been rescinded. For this reason alone, this Court
should exercise its discretion to recall the mandate.
Zipfel v.
Halliburton Co., 861 F.2d 565, 567 (9th Cir. 1988) (mandate may be
recalled for “good cause” or to “prevent injustice”) (citation and internal quotation marks omitted).
In addition, this Court’s rules recognize that recalling the mandate
is often appropriate when a petition for certiorari will be filed, unless
the petition is frivolous. LOCAL RULE 41-1 Ninth Circuit advisory
committee’s note. Here, the grounds on which Appellants intend to
seek certiorari are set forth in Appellants’ Petition For Rehearing En
Banc. Although the Court declined to rehear this appeal en banc, the
issues presented by Appellants are substantial and far from frivolous. In any event, it would make no sense for the Massachusetts
proceedings to resume while the Supreme Court decides whether to
take up the case. Appellees Facebook and Zuckerberg will face no
prejudice from the mandate being recalled. To the contrary, they will
-3-
be relieved of the obligation to respond to the motions that will proceed in Massachusetts if this Court does not recall its mandate.
For the foregoing reasons, Appellants respectfully request that the
Court recall the mandate issued on May 16, 2011, and instruct the
Clerk that the mandate should issue forthwith if the Supreme Court
denies certiorari or upon further order of the Court.2
DATED: May 21, 2011.
Respectfully,
JEROME B. FALK, JR.
SEAN M. SELEGUE
SHAUDY DANAYE-ELMI
NOAH S. ROSENTHAL
HOWARD RICE NEMEROVSKI CANADY
FALK & RABKIN
A Professional Corporation
By
/s/ Sean M. SeLegue
SEAN M. SELEGUE
Attorneys For Appellants and
Intervenors Divya Narendra, Cameron
Winklevoss and Tyler Winklevoss
W03 052111-180060001/PB6/1648575/F
2
Appellants will apprise the Clerk when they learn whether
Appellees intend to oppose this motion.
-4-
PROOF OF SERVICE
I hereby certify that I electronically filed the foregoing MOTION
TO RECALL MANDATE with the Clerk of the Court of the United
States Court of Appeals for the Ninth Circuit by using the appellate
CM/ECF system on May 21, 2011.
Participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
I further certify that some of the participants in the case are not
registered CM/ECF users.
On May 21, 2011, the foregoing docu-
ment, described as MOTION TO RECALL MANDATE, was mailed
by placing the document for deposit in the United States Postal Service through the regular mail collection process at the law offices of
Howard Rice Nemerovski Canady Falk & Rabkin, located at Three
Embarcadero Center, Seventh Floor, San Francisco, California, to
the following non-CM/ECF participants:
Mark A. Byrne
Byrne & Nixon LLP
800 W. Sixth Street, Suite 430
Los Angeles, CA 90017
Jonathan M. Shaw
Bois, Schiller & Flexner, LLP
5301 Wisconsin Avenue NW
Washington, D.C. 20015
Steven C. Holtzman
Bois, Schiller & Flexner, LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
/s/ Sean M. SeLegue
SEAN M. SELEGUE
W03 052111-180060001/PB6/1648575/F
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