Perfect 10 Inc v. Google Inc et al

Filing 308

EX PARTE APPLICATION to Continue Hearing from July 7, 2008 to August 11, 2008 Re: MOTION for Leave to file Second Amended Complaint #297 filed by Plaintiff Perfect 10, Inc.; Ex Parte Application filed by Defendant and Counterclaimant Google Inc. (Attachments: #1 Declaration of Rachel M. Herrick in Support of Google's Ex Parte Application, #2 Proposed Order Granting Google Inc.'s Ex Parte Application)(Herrick, Rachel)

Perfect 10 Inc v. Google Inc et al

Doc. 30

1 QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP Michael T. Zeller (Bar No. 196417) michaelzeller@quinne manuel.com 2 865 South Figueroa Street, 10th Floor 3 Los Angeles, California 90017-2543 Telephone: [phone] Facsimile: [phone] Charles K. Verhoeven (Bar No. 170151) charlesverhoeven@quinne manuel.com 5 50 California Street, 22nd Floor 6 San Francisco, California 94111 Rachel M. Herrick (Bar No. 191060) [e-mail] 7 555 Twin Dolphin Drive, Suite 560 8 Redwood Shores, California 94065-213 9 Attorneys for Defendant Google Inc. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 054753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION FOR (1) RELIEF FROM THE TWENTY DAY REQUIREMENT OF LOCAL RULE 7-3 AND (2) A CONTINUANCE OF THE JULY 7, 2008 NOTICED HEARING DATE FOR PERFECT 10, INC.'S MOTION FOR LEAVE TO FILE ITS [PROPOSED] SECOND AMENDED COMPLAINT Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

13 PERFECT 10, INC., a California corporation, 14 Plaintiff, 15 vs. 16 GOOGLE INC., a corporation; and 17 DOES 1 through 100, inclusive, 18 19 20 22 23 vs. Defendants. AND COUNTERCLAIM

PERFECT 10, INC., a California 21 corporation, Plaintiff,

24 AMAZON.COM, INC., a corporation; A9.COM, INC., a corporation; and 25 DOES 1 through 100, inclusive, 26 27 28 Defendants.

Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING Dockets.Justia.com

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Pursuant to the Federal Rules of Civil Procedure and this Court's Local

2 Rule 7-19, Defendant Google Inc. ("Google") respectfully submits this ex parte 3 application seeking (1) relief from the twenty-day requirement of Local Rule 7-3 4 and (2) a continuance of the July 7, 2008 noticed hearing date on Perfect 10, Inc.'s 5 ("Perfect 10") motion for leave to file its (proposed) Second Amended Complaint. 6 Google makes this application on two grounds. First, Google's lead 7 counsel, Michael T. Zeller, is unavailable on July 7, 2008 because he is currently in 8 trial in the matter sub nom. Bryant v. Mattel, Inc., Case No. CV 04-9049 SGL, 9 which trial is not expected to conclude until the end of July. Second, given the 10 scope and complexity of the issues raised by Perfect 10's motion, and Perfect 10's 11 failure to disclose material aspects of its motion during the meet and confer process, 12 Google needs additional time to prepare its opposition papers. Specifically, Perfect 13 10's motion for leave seeks to improperly and dramatically expand the scope of its 14 case by adding new causes of action and new theories of liability directed at Google 15 products and services never before at issue in this case. Many of Perfect 10's 16 proposed amendments appear futile, meritless and/or untimely. Perfect 10's moving 17 papers also present large amounts of completely new evidence, which evidence 18 Perfect 10 failed to disclose during the parties' meet and confer discussions relating 19 to this motion, and which will require extensive factual investigation by Google and 20 its counsel. Accordingly, Google requests expedited judicial intervention to 21 continue the July 7 hearing date to a date in August that is convenient for the Court. 22 Pursuant to Local Rule 7-19, on June 17, 2008, Jeffrey N. Mausner of 23 the Law Offices of Jeffrey N. Mausner (address: 21800 Oxnard Street, Suite 910, 24 Woodland Hills, California 91367, telephone: [phone])), counsel of record 25 for Perfect 10, was given notice of this ex parte application. Mr. Mausner did not 26 respond to the notice. Google presumes Perfect 10 opposes this application. 27 This application is based on this Application and the accompanying 28 memorandum, the Declaration of Rachel M. Herrick ("Herrick Decl.") filed Case No. CV 04-9484 AHM (SHx) [Consolidated -1with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING

1 concurrently herewith, the pleadings and other papers on file in this action, and all 2 matters of which the Court may take judicial notice. 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING

Respectfully submitted, QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By /s/ Rachel M. Herrick Rachel M. Herrick Attorneys for Defendant Google Inc.

4 DATED: June 18, 2008

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Memorandum of Points and Authorities PERFECT 10 HAS DEMONSTRATED NO COMPELLING NEED TO HAVE ITS MOTION HEARD ON JULY 7, 2008, AND NO POSSIBLE PREJUDICE FROM HAVING IT HEARD IN AUGUST. Perfect 10 filed the operative complaint in this case on January 14,

6 2005. The parties have been actively litigating this case for years, including the 7 filing of a motion for preliminary injunction, an appeal to the Ninth Circuit and 8 remand, and extensive discovery efforts. Late last week, more than three and a half 9 years into this litigation, Perfect 10 filed a motion to amend its complaint. Perfect 10 10 first expressed its intention to move for amendment approximately a year and a 11 half ago, in January 2007. Herrick Decl. ¶ 6. For reasons unknown, Perfect 10 12 apparently abandoned those efforts. Perfect 10 re-initiated meet-and-confer efforts 13 on its proposed Second Amended Complaint with present counsel on March 2, 14 2008--over three months ago. Id. at ¶ 7. Perfect 10 e-filed its motion and 15 supporting materials on various dates between June 12 and 17, 2008, and noticed the 16 hearing on its motion for July 7. Id. at ¶ 8. 17 As discussed at greater length below, Google made a timely request to 18 continue the noticed hearing date on Perfect 10's motion to any date in August that 19 would be convenient for Perfect 10. Google asked for the continuance because 20 Google's lead counsel--who is currently in trial in Riverside, California and will 21 remain so occupied throughout the month of July--is currently unable to prepare for 22 and attend the hearing. Id. at ¶ 9. Despite Google's reasonable request for a 23 continuance in these circumstances, Perfect 10 has refused to extend Google's 24 counsel this basic professional courtesy. 25 This case has been pending for years, and Perfect 10 has been talking 26 about filing a motion for leave to amend its complaint for a full year and a half-- 27 since January 2007. Perfect 10 has given no rational explanation for why, after 28 delaying the filing of its motion for eighteen months, the motion is now suddenly so Case No. CV 04-9484 AHM (SHx) [Consolidated -3with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING

1 urgent that Google should be denied the right to have its lead counsel involved in 2 the briefing and argument on the motion. Nor has Perfect 10 identified any possible 3 prejudice it would suffer from having its motion heard in August rather than in July. 4 Id. at ¶ 10. 5 II. 6 7 8 9 10 GOOGLE'S LEAD COUNSEL, MICHAEL T. ZELLER, IS UNAVAILABLE ON JULY 7, 2008 BECAUSE HE IS CURRENTLY AND WILL CONTINUE TO BE IN TRIAL IN THE CENTRAL DISTRICT OF CALIFORNIA (EASTERN DIVISION) THROUGH THE END OF JULY. As Google explained to Perfect 10 during the parties' meet and confer

11 efforts preceding this Application, Google's lead counsel, Michael T. Zeller, is 12 currently in the midst of one of the biggest and highest-profile civil trials in recent 13 memory--the lawsuit between Mattel and MGA over the ownership of Bratz dolls, 14 a billion-dollar brand, sub nom. Bryant v. Mattel, Inc., Case No. CV 04-9049 SGL, 15 consolidated with Case Nos. CV 04-09059 and CV 05-02727. Herrick Decl. ¶ 2. 16 Trial is currently pending before the Honorable Stephen G. Larson in the Central 17 District of California, Eastern Division, in Riverside, California, and is expected to 18 continue through the end of July. Id. at ¶¶ 2, 4. Mr. Zeller is intimately involved in 19 all aspects of the trial, has overseen the day-to-day events of the case since the filing 20 of the complaint over four years ago in April 2004, deposed the bulk of the key 21 witnesses, is in the courtroom every minute of every day that court is in session, and 22 is one of the three lead attorneys for Mattel who are examining witnesses in the trial. 23 Id. at ¶ 3. Because of the all-consuming nature of his trial responsibilities, Mr. 24 Zeller is currently unable to devote any time to Google's opposition to Perfect 10's 25 motion, and will not be able to return to Los Angeles in order to prepare for and 26 attend the July 7, 2008 hearing on the motion. Id. at ¶ 5. 27 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING

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BECAUSE PERFECT 10'S MOTION FOR LEAVE TO AMEND PRESENTS COMPLEX AND SUBSTANTIAL QUESTIONS OF LAW AND FACT, AND INCLUDES FACTS AND ARGUMENTS THAT WERE NEVER DISCLOSED IN MEET-AND-CONFER DISCUSSIONS, GOOGLE NEEDS ADDITIONAL TIME TO EVALUATE THEM. In addition to Mr. Zeller's unavailability, good cause exists to continue

8 the July 7, 2008 hearing date on Perfect 10's motion for the additional reason that 9 the motion presents complex and voluminous issues that were not fully disclosed to 10 Google during the parties' meet and confer discussions. Under the Local Rules, 11 Google's opposition papers would ordinarily be due on Monday, June 23--a mere 3 12 business days from today. Civil L.R. 7-9. This is simply not enough time to 13 respond to Perfect 10's motion. 14 Perfect 10's motion is no ordinary request for leave to make ministerial 15 or technical amendments to its complaint. To the contrary, Perfect 10 seeks to add 16 entirely new causes of action--for unjust enrichment, misappropriation, unfair 17 competition under Cal. Bus. & Prof. Code § 17200, and unfair competition under 18 the common law. None of these claims has ever been a part of this case (though 19 Perfect 10 certainly could have alleged them many years ago had it been diligent), 20 and each presents complex questions of law and fact. Based on preliminary 21 research, Google believes that many--if not all--of these claims are deeply flawed 22 and unsupported by law or fact, and that their amendment would be entirely futile 23 and untimely. However, to reach a reasoned conclusion on each of these brand-new 24 claims, Google needs adequate time to research, evaluate, and, as appropriate, 25 oppose their addition to the case. 26 Moreover, Perfect 10's motion seeks to add an entirely new set of 27 claims against Google based upon an entirely new theory of copyright liability-- 28 claims that appear to be time barred. As this Court is aware, this case has proceeded Case No. CV 04-9484 AHM (SHx) [Consolidated -5with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING

1 since November 2004 on the theory that Google's search functions (i.e. Web Search 2 and Image Search) effectuate copyright infringement. By its proposed amendments, 3 however, Perfect 10 now seeks to add brand new claims directed at Google's 4 blogger.com and blogspot.com websites--Google services which have nothing to do 5 with Google search, and which have never before been at issue in this action. 6 In support of its proposed amendments, Perfect 10 presents a dizzying 7 array of brand-new "evidence," in two separate declarations, and in 20 separate 8 exhibits comprised of several hundred pages of documents and a CD containing 133 9 separate files (which CD Google's counsel was not served with until just yesterday). 10 Perfect 10 made no mention whatsoever of this "evidence" during the parties' meet11 and-confer efforts preceding this motion, nor did Perfect 10 disclose these materials 12 to Google prior to filing them on various dates between June 12 and 17, 2008. 13 Perfect 10 also failed to disclose (or even mention) the blogspot.com and 14 blogger.com claims and theories prior to its filing. 15 Google needs sufficient time to review all of this voluminous new 16 information, conduct relevant factual and legal research, and respond to Perfect 10's 17 motion as appropriate. Preliminary research, however, reveals that this new 18 "evidence" is flawed, and that Perfect 10 had actual knowledge of the facts giving 19 rise to its alleged claims against Google related to blogspot.com and blogger.com at 20 least five years ago. Accordingly, these new claims appear to be time-barred, and 21 thus futile. Google requests adequate time to fully research and brief these issues 22 for the Court's consideration. 23 Finally, it bears note that Perfect 10's motion levies serious accusations 24 against Google, which accusations are as untrue as they are improper. Nevertheless, 25 Google is entitled to respond to these attacks in due course, and will demonstrate the 26 falsity of these accusations in its opposition materials. 27 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING

Perfect 10's transparent attempt to sandbag Google by filing a motion -6-

1 involving voluminous new materials and arguments never disclosed during the meet 2 and confer process is made all the more obvious by Perfect 10's senseless refusal to 3 agree to a simple continuance of the hearing to permit Google to respond on the 4 merits, with the guidance of its lead counsel. Such intransigent tactics only serve to 5 impose greater burdens on this Court's resources, burdens that Perfect 10 easily 6 could have avoided with an ounce of cooperation. During the April 14, 2008 7 hearing in this case, this court admonished Perfect 10 to make efforts to work things 8 out with opposing counsel where possible, to avoid the need for court intervention. 9 Regrettably, it appears that Perfect 10 has not heeded this message. 10 11 Conclusion For the above-stated reasons, Google respectfully requests that the

12 Court grant its ex parte application to continue the hearing date on Perfect 10's 13 motion for leave to file a second amended complaint from July 7, 2008 to a date in 14 August that is convenient for the Court. If the Court has no preference, Google 15 suggests a hearing date of August 11, 2008. 16 17 DATED: June 18, 2008 18 19 20 21 22 23 24 25 26 27 28
Case No. CV 04-9484 AHM (SHx) [Consolidated with Case No. CV 05-4753 AHM (SHx)] DEFENDANT GOOGLE INC.'S EX PARTE APPLICATION TO CONTINUE THE JULY 7, 2008 HEARING

QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP By /s/ Rachel M. Herrick Rachel M. Herrick Attorneys for Defendant Google Inc.

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