Trafficschool.com.Inc v. Drivers Ed Direct LLC

Filing 214

REQUEST to Strike Defendants' Newly Submitted Expert Declaration and Related Arguments filed by Plaintiffs Trafficschool.com.Inc, Drivers Ed Direct LLC. (Hamilton, Mina)

Trafficschool.com.Inc v. Drivers Ed Direct LLC

Doc. 214

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DA VID N. MAKOUS (State Bar # 082409) mako u s @lb b s law.co m DANIEL C. DECARLO (State Bar # 160307) d ecarlo @lb b s law.co m M INA I. HAMILTON (State Bar # 213917) h amilt o n @lb b s law.co m LEWIS BRISBOIS BISGAARD & SMITH LLP 221 North Figueroa Street, Suite 1200 Lo s Angeles, California 90012-2601 Telep h o n e: [phone] Facs imile: [phone]

A t t o rn ey s for Plaintiffs TRA FFICSCHOOL.COM , INC. and 8 DRIVERS ED DIRECT, LLC, California companies.
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UNITED STATES DISTRICT COURT
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CENTRA L DISTRICT OF CALIFORNIA
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TRA FFICSCHOOL.COM , INC., a California corporation; DRIVERS ED 13 DIRECT, LLC, a California limited liab ilit y company,
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Plain t iffs ,
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vs .
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EDRIVER, INC.,ONLINE GURU, INC., FIND MY SPECIALIST, INC., and SERIOUSNET, INC., California 18 co rp o rat io n s ; RAVI K. LAHOTI, an in d iv id u al; RAJ LAHOTI, an individual; 19 an d DOES 1 through 10,
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Defen d an t s .

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Cas e No. CV 06-7561 PA (CWx) Th e Honorable Percy Anderson PLAINTIFFS ' REQUEST TO STRIKE DEFENDANTS ' NEWLY SUBMITTED EXPERT DECLARATION AND RELATED ARGUMENTS

P L A IN TIFFS' REQUEST TO STRIKE DEFENDANTS' NEWLY SUBMITTED EXP E RT DECLARATION AND RE L A TE D ARGUMENTS

Dockets.Justia.com

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I.

Introducti on and Summary of Request A s anticipated, Defendants have improperly submitted new evidence in the form

o f an expert declaration and argued for a d i f f e r e n t t y p e of injunction altogether in their Ob ject io n s filed on June 18, 2008. Defendants blatantly disregarded the Court's Fin d in g s of Fact and Conclusions o f Law an d Order Finding Defendants Liable for Fals e Advertising ("Findings and Ord e r " ) an d have also ignored the Court's invitation fo r objections based on the form of the proposed injunction. Instead, Defendants

i mp ro p erly used the Court's invitation for objections to file what amounts to a motio n fo r reconsideration o r a motion for a new trial. The trial is over but Defendants have s o u g h t by their filing to submit new evidence from an expert who was never designated (o r cross-examined) on an issue which was considered during the trial. Th e p r o c ed u ral imp ro p riet ies are multi-fold and, as a result, Plaintiffs object to the submission and req u es t that the Court strike the new expert declaration and the argument which seeks t o persuade the court to "reconsider" its findings o n liab i l i t y or regarding the proper in ju n ct iv e remedy. II. The Court Has Already Ordered a Splash Screen as the Remedy Th e Court has ruled and the parties were supposed to co mme n t o n l y o n t h e Co u rt 's proposed injunction as to the "form o f t h e Court's proposed permanent in ju n ct io n ." [Findings and Order, pg. 33:17-18.] The Court did not request an ev id en t iary hearing, set a further b r i e f i n g schedule, or otherwise suggest that these o b ject io n s were meant to be a re-opening of trial. The Court did not invite the parties t o persuade the Court to reconsider its findings by submitting new expert tes t i mo n y .1 / Specifically related to injunctive relief, the Co u r t h as already found and ordered as follows: "A cco rd in g ly , the Court will req u i re Defendants to employ an ackn o wled g men t page co mmu n icat in g to all visitors to all entry Perhaps Defendan t s felt that they had nothing to lose in disregarding the Co u rt 's Order and therefore submitted their improper "ob j e c t i o n s " and new declaration.
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P L A IN TIFFS' REQUEST TO STRIKE DEFENDANTS' NEWLY SUBMITTED EXP E RT DECLARATION AND RE L A TE D ARGUMENTS

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p ag es of DMV.ORG that the website is privately owned, and is not t h e website of any government agency. This acknowledgment page s h all include an affirmat i v e click-through that a consumer must ch o o s e in order to continue to the DMV.ORG s i t e. The ackn o wled g men t page must also provide links to the websites o f the o fficial state agencies that regulate motor vehicles. Such "in t e r c ep t " d ev ices have been ordered by other courts in the context of t e l e p h o n e connections. [citations omitted.] The court will issue a p erma n en t injunction consistent with this Order." [Fin d in g s and Order, pg. 29:20 to pg. 30:13 (Emphasis added).] III. Prejudi ce to Plaintiffs Defendants ignored the Court's Order, and accordingly, Plaintiffs find

Defen d an t s ' June 18, 2008 filing objectionable in at least the following respects: 1. Defen d an t s ' filing is improper as it is really a motion for reconsideration

o r a motion for a new trial. Defendants admit as much in their Objectio n s , s t a t i n g that t h ey request "this Court to reconsider the splash page concept altogether." [Defendants' Ob ject io n s , Pg. 4:23-24.] However, Defendants have failed to fo l l o w the Local Rule p ro ced u res 2 / fo r s u c h mo t io n s and thus their submission is highly prejudicial to

Plain t iffs b e c a u s e Plaintiffs do not have any opportunity to respond to the disguised mo t io n for reconsideration/new trial and the arguments presented therein. 2. Defendan t s ' submission of an expert witness' declaration after the close

o f trial ­ especially when that expert was never designated during trial or in any o f Defen d an t s ' required Rule 26 disclosures ­ is h i g h ly improper for obvious reasons: Plain t iffs never had an opportunity to rebut or cross-examin e t h e numerous positions t h at Mr. Bruce Tognazzini makes in his declaration which are used t o support Defen d an t s ' entire argument for why a splash screen should not be utilized. Fo r example, L.R. 59-1.3's New Trial Procedures requires an articulation fo r why new evidence could not have been produced at trial.
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P L A IN TIFFS' REQUEST TO STRIKE DEFENDANTS' NEWLY SUBMITTED EXP E RT DECLARATION AND RE L A TE D ARGUMENTS

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3.

Fin ally , Defendants' position appears to be that the Court should not issue

it s proposed injunction because a splash screen would hurt Defendants' business. This is an irrelevant point when the only issue is whether the in j u n ct io n would serve to p rev e n t t h e ongoing confusion that Defendants were found liable for intentionally creat in g in the first place. IV. Concl us i on Fo r all the foregoing reasons, Plaintiffs respectfully request that the Court strike Defen d an t s ' newly submitted expert declarat i o n and related arguments in the Defen d an t s ' Objections.

DATED: June 19, 2008

LEW I S BRISBOIS BISGAARD & SMITH LLP By /s/ David N. Makous Dan iel C. Decarlo M in a I. Hamilton A t t o rn ey s for Plaintiffs

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P L A IN TIFFS' REQUEST TO STRIKE DEFENDANTS' NEWLY SUBMITTED EXP E RT DECLARATION AND RE L A TE D ARGUMENTS