Mark Mishak v. Google, Inc. et al

Filing 28

APPLICATION to Dismiss Case Defendant Lycos's Motion To Dismiss, Or In The Alternative For More Definite Statement filed by Defendant Lycos, Inc.. (Page, Michael)

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Mark Mishak v. Google, Inc. et al Doc. 28 Case 2:07-cv-08258-CAS-JCR Document 28 Filed 03/20/2008 Page 1 of 4 KEKER & VAN NEST, LLP MICHAEL H. PAGE - #154913 2 710 Sansome Street San Francisco, CA 94111-1704 3 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 1 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorneys for Defendant LYCOS INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION MARK MISHAK, dba INEEDATV.COM, Plaintiff, v. GOOGLE, INC., AMERICAN ONLINE, INC., NETSCAPE, INC., MICROSOFT NETWORK, INC., ASK JEEVES, INC. EXCITE, INC., WEBCRAWLER, INC., YAHOO, INC., CONVERSA, INC., LYCOS, INC., HOTBOT INC., ALTAVISTA INC., CRAIGSLIST INC., RESPOND INC., INFOSEEK INC., YELLOW PAGES INC., PLANETSEARCH INC., PRONET INC., NORTHERNLIGHT INC., LUCKYSURF INC., COMFIND INC., LIQUIDPRICE INC., EARTHLINK INC., DOES 1-100, Defendants. Case No. CV07-8258 CAS (JCRx) DEFENDANT LYCOS'S MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR MORE DEFINITE STATEMENT Date: Time: April 28, 2008 10:00 a.m. Date Comp. Filed: December 20, 2007 Trial Date: None 413700.01 DEFENDANT LYCOS'S MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR MORE DEFINITE STATEMENT CASE NO. CV07-8258 CAS (JCRx) Dockets.Justia.com Case 2:07-cv-08258-CAS-JCR Document 28 Filed 03/20/2008 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Lycos, Inc. ("Lycos") HEREBY GIVES NOTICE to all parties and their attorneys of record that on April 28, 2008, at 10:00 a.m., or as soon thereafter as counsel may be heard in the above-captioned Court, located at 312 N. Spring Street, Los Angeles, CA 90012, it will, and hereby does, move this Court for an order dismissing this matter with prejudice. Lycos's motion is brought under Federal Rule of Civil Procedure 12(b)(6) and relevant case law, on the ground that the First Amended Complaint ("FAC") fails to state a cause of action against Lycos. In the alternative, Lycos moves for a more definite statement pursuant to Rule 12(e). This motion is made following conferences of counsel pursuant to L.R. 7-3 which took place on January 23, 2008 and February 7, 2008. Since that time, Plaintiff's counsel has stated his intention to either dismiss this matter or withdraw as counsel, but has not done neither, and has ignored repeated requests to meet and confer or to extend Lycos' time to respond. I. INTRODUCTION As this Court is already aware from Google et al.'s unopposed Rule 11 motion, the complaint in this action is wholesale fantasy. The purported business of the Plaintiff Mark Mishak does not exist. His purported trademark appears to be a copyright registration. No advertiser on Google or any of its partners has ever used his claimed trademark in any way. The outright fabrications go on and on. Accordingly, and after repeated efforts to get Plaintiff's counsel to withdraw his complaint, we were forced to bring a Rule 11 motion seeking dismissal and fees. That motion is unopposed, and is set for argument on March 31, 2008. In the meantime, however, Mishak has served one defendant, Lycos, while foregoing service on all others. This is not, apparently, a tactical choice. Rather, Mishak's counsel sent his initial complaint to all defendants by mail, apparently under the mistaken impression that this was a proper means of service. It is not, in most states. But Lycos (contrary to the allegations of the FAC) is headquartered in 1 DEFENDANT LYCOS'S MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR MORE DEFINITE STATEMENT CASE NO. CV07-8258 CAS (JCRx) 413700.01 Case 2:07-cv-08258-CAS-JCR Document 28 Filed 03/20/2008 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Massachusetts, where mail service of summons on corporations is recognized, and thus by accident Lycos is the sole served defendant to date. Mishak's counsel previously agreed to an extension of time for Lycos, so that the response times for the various defendants could be coordinated. But the other defendants still have not been served (despite repeated offers to accept and acknowledge service), and Mishak's counsel has now simply ignored four separate requests for a further extension. Accordingly, Lycos is forced tofile the instant motion. It is a simple one, because Mishak's complaint contains no allegations of any acts constituting trademark infringement by Lycos or any other defendant. II. ARGUM ENT Mishak's FAC purports to be one for trademark infringement. As set forth in our previous Rule 11 motion, however, Mishak has simply copied, wholesale, a three-year-old complaint filed against Google in New York by American Blind & Wallpaper Factory ("American Blind"), and then replaced the names (while keeping the factual allegations). And where those allegations don't fit, he simply ellipses them out. The result is a complaint that fails to state any claim for myriad reasons. First, Mishak fails to allege ownership of a trademark, without which one cannot allege its infringement. Instead, at Paragraph 32 of the FAC, he simply states that he owns "the following trademark:" and cites Exhibit 1 to the FAC. But Exhibit 1 is a copy of a copyright registration form for an unspecified web page. Second, Mishak fails to allege any use of his nonexistent trademark. Instead, in the paragraphs (FAC 55-56) copied from the American Blind complaint, Mishak has replaced the allegations of infringement of American Blind's marks with ellipses, leaving no allegations of any use of any purported trademarks. A trademark infringement complaint requires, at a minimum, a claim that the defendant has used the mark at issue in commerce. Third, because Mishak has simply copied a complaint against Google, 2 DEFENDANT LYCOS'S MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR MORE DEFINITE STATEMENT CASE NO. CV07-8258 CAS (JCRx) 413700.01 Case 2:07-cv-08258-CAS-JCR Document 28 Filed 03/20/2008 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AOL,Ask Jeeves, Earthlink, and Netscape, the FAC contains no allegations of any conduct by Lycos. Instead, the factual allegations concerning non-Google companies are directed at those specific companies. FAC 59. Other than being added to the caption, and a single sentence stating (incorrectly) that Lycos is a Delaware corporation doing business in California, there are no allegations concerning Lycos in the FAC whatsoever. Nor could there be: Lycos is not an advertising partner of Google. Fourth, Mishak does not identify any competitor to whom he contends any of his non-existent customers have been diverted. Absent a claim of confusion (in the form of a claim that consumers were confused into purchasing a competitor's goods by misuse of the plaintiff's marks), Mishak has no claim. These are but four of literally dozens of fatal defects in Mishak's FAC, and each individually mandate dismissal. Accordingly, Lycos moves this Court for an order dismissing the FAC with prejudice, or in the alternative, for a more definite statement setting forth with particularity the claims Mishak seeks to state against Lycos. Respectfully Submitted, Dated: March 20, 2008 KEKER & VAN NEST, LLP By: /Michael H. Page _____________ MICHAEL H. PAGE Attorneys for Defendant LYCOS, INC. 3 413700.01 DEFENDANT LYCOS'S MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR MORE DEFINITE STATEMENT CASE NO. CV07-8258 CAS (JCRx)

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