LegalZoom.com Inc v. Rocket Lawyer Incorporated
Filing
166
EX PARTE APPLICATION for Leave to TO FILE MOTION TO SUPPLEMENT FACTUAL RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND TO SET BRIEFING SCHEDULE filed by Defendant Rocket Lawyer Incorporated. (Attachments: # 1 DECLARATION OF HONGAN VU IN SUPPORT OF ROCKET LAWYER INCORPORATEDS EX PARTE APPLICATION TO FILE MOTION TO SUPPLEMENT FACTUAL RECORD AND TO ESTABLISH BRIEFING SCHEDULE, # 2 ROCKET LAWYER INCORPORATEDS NOTICE OF MOTION AND MOTION TO SUPPLEMENT FACTUAL RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, # 3 DECLARATION OF MICHAEL JONES IN SUPPORT OF ROCKET LAWYER INCORPORATEDS MOTION TO SUPPLEMENT FACTUAL RECORD IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, # 4 Proposed Order GRANTING MOTION TO SUPPLEMENT FACTUAL RECORD, # 5 Proposed Order GRANTING LEAVE TO FILE MOTION TO SUPPLEMENT FACTUAL RECORD AND TO ESTABLISH BRIEFING SCHEDULE)(Vu, Hong-An)
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Forrest A. Hainline III (SBN 64166)
fhainline@goodwinprocter.com
Hong-An Vu (SBN 266268)
hvu@goodwinprocter.com
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111-4003
Tel.: 415.733.6000
Fax.: 415.677.9041
Michael T. Jones (SBN 290660)
mjones@goodwinprocter.com
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, California 94025-1105
Tel.: 650.752.3100
Fax.: 650.853.1038
Brian W. Cook (Pro Hac Vice)
bcook@goodwinprocter.com
GOODWIN PROCTER LLP
53 State Street
Boston, Massachusetts 02109-2802
Tel.: 617.570.1000
Fax.: 617.523.1231
Attorneys for Defendant
ROCKET LAWYER INCORPORATED
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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LEGALZOOM.COM, INC., a Delaware
corporation,
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Plaintiff,
v.
ROCKET LAWYER
INCORPORATED, a Delaware
corporation,
Defendant.
Case No. 2:12-cv-09942-GAF-AGR
ROCKET LAWYER
INCORPORATED’S EX PARTE
APPLICATION TO FILE MOTION
TO SUPPLEMENT FACTUAL
RECORD IN SUPPORT OF ITS
MOTION FOR SUMMARY
JUDGMENT AND TO SET
BRIEFING SCHEDULE
Date:
Time:
Judge:
Courtroom:
TBD
TBD
Judge Gary A. Feess
740
255 East Temple Street
Los Angeles, CA 90012
Action Filed: November 20, 2012
APPLICATION
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
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PLEASE TAKE NOTICE that pursuant to Local Rule 7-19, Defendant
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Rocket Lawyer Incorporated (“Rocket Lawyer”) hereby applies to this Court ex
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parte for an order allowing it to (i) to file the accompanying motion to supplement
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the factual record (“Motion to Supplement”) relating to Rocket Lawyer’s motion for
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summary judgment (the “RLI MSJ”), ECF No. 60, with evidence provided to
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Rocket Lawyer on October 3 and 6, 2014, and (ii) to set a briefing schedule such
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that this motion to supplement may be heard on November 10, 2014, the date the
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RLI MSJ is set to be heard.
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LegalZoom has persistently refused to produce a witness to testify about its
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alleged damages resulting from the Rocket Lawyer advertisements at issue in this
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case. On October 6, 2014, it produced an expert report on damages that only
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addresses damages for one of the four categories of advertisements at issue.
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LegalZoom also refused to produce documents its experts supposedly relied on in
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reaching his purported damages opinion. The evidence of LegalZoom’s lack of
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damages relating to three of Rocket Lawyer’s allegedly misleading ads was
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provided on October 3 and October 6, 2014 and as such, was not previously
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available to Rocket Lawyer when it was briefing the RLI MSJ.
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Ex parte relief is necessary because there is insufficient time before the
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November 10, 2014 hearing on the Motion for a motion to supplement the record to
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be heard, and Rocket Lawyer will be prejudiced if the Court does not consider this
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recently produced evidence. To allow the Court sufficient time to review the
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additional materials, Rocket Lawyer proposes the following briefing schedule:
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LegalZoom shall file its opposition to the Motion to Supplement on or before
October 28, 2014.
Rocket Lawyer shall file a reply on or before October 31, 2014.
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Should the Court require oral argument, the Motion to Supplement shall be
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heard on November 10, 2014 at the same time as the hearing on the RLI MSJ.
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Rocket Lawyer gave notice of this application to Fred Heather and Aaron
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Allan, counsel for LegalZoom, by email and telephone on October 20, 2014. The
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name, address, and telephone number of counsel for Plaintiff is as follows:
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Fred D. Heather
Aaron Allan
GLASER WElL FINK HOWARD
AVCHEN & SHAPIRO LLP
10250 Constellation Boulevard, 19th Floor
Los Angeles, CA 90067
(310) 553-3000
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I.
THE COURT SHOULD ALLOW ROCKET LAWYER TO FILE THE
MOTION TO SUPPLEMENT
The Court should permit Rocket Lawyer to supplement the summary
judgment record because the evidence it seeks to introduce is newly acquired and
was not previously available. On October 3, 2014, LegalZoom confirmed that it
will rely exclusively on testimony from its expert for damages. Declaration of
Hong-An Vu in Support of Ex Parte Application to File Motion to Supplement the
Factual Record and to Set Briefing Schedule (“Vu Decl.) at ¶ 2.
On October 6, 2014, LegalZoom disclosed a third expert report from its
damages expert that supersedes all prior expert reports. Id. at ¶ 3. Rocket Lawyer
completed depositions of LegalZoom’s fact witnesses on October 9, 2014, id. at ¶ 4
and has brought this motion as soon as practicable after being made aware of
LegalZoom’s position.
Courts have permitted supplementation of newly acquired evidence after the
completion of briefing. See, e.g., Lassen Mun. Utility Dist. v. Kinross Gold U.S.A.
Inc., 2013 WL 875974, at *2 (E.D. Cal. Mar. 7, 2013) (granting motion to
supplement summary judgment record with evidence obtained by the moving party
more than two months after submission of the summary judgment motion). Rocket
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Lawyer requests that the Court consider allowing it to supplement the record in
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advance of the November 10, 2014, hearing.
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II.
GRANTING THIS APPLICATION WILL CAUSE NO PREJUDICE
LegalZoom will not be prejudiced by the granting of this application because
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the newly discovered evidence is uncomplicated, limited in scope and can be
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addressed by LegalZoom under Rocket Lawyer’s proposed briefing schedule.
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III.
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CONCLUSION
For the foregoing reasons, Rocket Lawyer respectfully requests that the Court
allow it to file the accompanying motion to supplement and set the briefing
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schedule proposed by Rocket Lawyer so that the Motion to Supplement may be
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heard on November 10, 2014.
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Dated: October 21, 2014
Respectfully submitted,
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By: /s/ Hong-An Vu
Forrest A. Hainline III (SBN 64166)
fhainline@goodwinprocter.com
Hong-An Vu (SBN 266268)
hvu@goodwinprocter.com
Michael T. Jones (SBN 290660)
mjones@goodwinprocter.com
Brian W. Cook (Pro Hac Vice)
bcook@goodwinprocter.com
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111-4003
Tel.: 415.733.6000
Fax.: 415.677.9041
Attorneys for Defendant
ROCKET LAWYER INCORPORATED
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