Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 166

REPLY In Opposition To Plaintiffs' Request For Enlargement Of Time filed by Defendants Edward Magedson, Xcentric Ventures LLC. (Gingras, David)

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Asia Economic Institute et al v. Xcentric Ventures LLC et al Doc. 166 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 David S. Gingras, CSB #218793 Gingras Law Office, PLLC 4072 E Mountain Vista Dr. Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David.Gingras@webmail.azbar.org Maria Crimi Speth, (Admitted Pro Hac Vice) Jaburg & Wilk, P.C. 3200 N. Central Ave., Suite 2000 Phoenix, AZ 85012 Tel: (602) 248-1000 Fax: (602) 248-0522 mcs@jaburgwilk.com Attorneys for Defendants Xcentric Ventures, LLC and Edward Magedson UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ASIA ECONOMIC INSTITUTE, LLC, et al., Plaintiffs, vs. XCENTRIC VENTURES, LLC, et al. Defendants. Hearing Date: Nov. 1, 2010 Time: 1:30 PM Courtroom: 6 (Hon. Stephen Wilson) Case No: 2:10-cv-01360-SVW-PJW DEFENDANTS' OPPOSITION TO PLAINTIFFS' REQUEST FOR ENLARGEMENT OF TIME TO FILE BRIEF 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Xcentric Ventures, LLC and Edward Magedson respectfully submit the following opposition to Plaintiffs' Request for Enlargement of time (Doc. #165) to file their opposition to Defendants' Motion for Summary Judgment. As explained in Defendants' Request For Waiver of Oral Argument (Doc. #164), on September 20, 2010 this court ordered Plaintiffs to file their opposition to Defendants' Motion for Summary Judgment by October 4, 2010, with Defendants' Reply due a week later on October 12. Two days after the October 4 deadline had passed, Plaintiffs had still not filed any opposition nor did they request an extension of time pursuant to Fed. R. Civ. P. 6(b). Instead, Plaintiffs simply ignored this court's order and took no action until after the OPPOSITION TO PLAINTIFFS' REQUEST FOR ENLARGEMENT OF TIME Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 court-ordered deadline had passed and only after Defendants requested waiver of oral argument on the unopposed summary judgment motion. If Plaintiffs genuinely needed additional time to prepare their opposition, they were obligated to request an extension "before the original time ... expires." Fed. R. Civ. P. 6(b)(1)(A). No timely request was made. As such, pursuant to Rule 6(b)(1)(B), an extension may only be granted "on motion made after the time has expired if the party failed to act because of excusable neglect." (emphasis added). Here, Plaintiffs have not brought a motion under Rule 6(b)(1)(B) nor have they identified any excusable neglect sufficient to justify their failure to comply with the court's October 4th deadline. Defendants recognize that the court has broad discretion in such matters. See Aros v. Robinson, 331 Fed.Appx. 485 (9th Cir. 2009) (extension under Rule 6(b) is within the court's discretion). As the same time, the mandatory requirements of Rule 6(b)(1)(B) are not satisfied by an after-the-fact "request" dropped into a response brief. Rather, as the U.S. Supreme Court has explained: Rule 6(b) establishes a clear distinction between "requests" and "motions," and the one cannot be converted into the other without violating its provisions-or at least cannot be converted on the basis of such lax criteria that conversion would be not only marginally permissible but positively mandatory in the present case. Rule 6(b)(1) allows a court ("for cause shown" and "in its discretion") to grant a "request" for an extension of time, whether the request is made "with or without motion or notice," provided the request is made before the time for filing expires. After the time for filing has expired, however, the court (again "for cause shown" and "in its discretion") may extend the time only "upon motion." To treat all postdeadline "requests" as "motions" (if indeed any of them can be treated that way) would eliminate the distinction between predeadline and postdeadline filings that the Rule painstakingly draws. Lujan v. National Wildlife Federation, 497 U.S. 871, 897 n. 5, 110 S.Ct. 3177, 3193 n.5 (1990) (emphasis added). It is important to note that this issue is not merely academic. Plaintiffs' strident efforts to prolong this action and to avoid any merits-based disposition is inherently prejudicial in the context of the Communications Decency Act immunity. This is so because "Section 230 immunity, like other forms of immunity, is generally 2 OPPOSITION TO PLAINTIFFS' REQUEST FOR ENLARGEMENT OF TIME CV10-01360 SVW 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 accorded effect at the first logical point in the litigation process. As we have often explained in the qualified immunity context, `immunity is an immunity from suit rather than a mere defense to liability' and `it is effectively lost if a case is erroneously permitted to go to trial.'" Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 25455 (4th Cir. 2009); see also Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (explaining "section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.") Plaintiffs know they cannot overcome the CDA on the merits so they are seeking to delay any consideration of the merits in order to do precisely what the CDA prohibits--force Defendants to fight a costly and protracted legal battle. In this manner, Plaintiffs are effectively depriving Defendants of any benefit of immunity under the CDA simply by delaying consideration of that issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is time for these games to end. To have any meaning, CDA immunity must be applied at the earliest possible stage of an action or its value is lost. Indeed, an early determination as to CDA immunity is so important that the Ninth Circuit has determined that it is an immediately appealable issue under the collateral order doctrine. See Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). Because the timely resolution of the issue is so essential, this court must not permit Plaintiffs to continue delaying without a showing of good cause which has not been made here. For these reasons, the court should deny Plaintiffs' untimely request for an extension of time to file their opposition to Defendants' Motion for Summary Judgment. DATED this 7th day of October 2010. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorneys for Defendants Ed Magedson and Xcentric Ventures, LLC 3 OPPOSITION TO PLAINTIFFS' REQUEST FOR ENLARGEMENT OF TIME CV10-01360 SVW 1 2 3 4 5 6 7 8 9 10 11 12 13 GINGRAS LAW OFFICE, PLLC 4072 EAST MOUNTAIN VISTA DRIVE PHOENIX, ARIZONA 85048 CERTIFICATE OF SERVICE I hereby certify that on October 7, 2010 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Ms. Lisa Borodkin, Esq. Mr. Daniel F. Blackert, Esq. Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Attorneys for Plaintiffs And a courtesy copy of the foregoing delivered to: Honorable Stephen V. Wilson U.S. District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 OPPOSITION TO PLAINTIFFS' REQUEST FOR ENLARGEMENT OF TIME CV10-01360 SVW /s/David S. Gingras

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