Calcar Inc. et al v. The California Cars Initiative, Inc. et al

Filing 37

Memorandum in Opposition re 33 MOTION to Shorten Time Plaintiffs' Notice of Motion and Motion to Shorten Time filed byDave Bagshaw, The California Cars Initiative, Inc., Felix Kramer. (Pistorino, James) (Filed on 7/1/2008)

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1 JAMES C. PISTORINO (State Bar No. 226496) HOWREY LLP 2 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 3 Telephone: (650) 798-3500 Facsimile: (650) 798-3600 4 E-mail: 5 WILLIAM C. ROOKLIDGE (State Bar No. 134483) HOWREY LLP 6 4 Park Plaza, Suite 1700 Irvine, CA 92614-8557 7 Telephone: (949) 721-6900 Facsimile: (949) 721-6910 8 E-mail: 9 Attorneys for Defendants THE CALIFORNIA CARS INITIATIVE, INC. 10 and FELIX KRAMER and Third Party DAVE BAGSHAW 11 12 13 14 15 16 CALCAR, INC., a California corporation; and AMERICAN CALCAR, INC., a Delaware 17 corporation, 18 19 v. Plaintiffs, Case No. 3:08-MC-80083 MHP (WDBx) Underlying Civil Action Pending in U.S. District Court for the Central District of California (Civil Action Case No. SACV07-00723) THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME Honorable Wayne D. Brazil UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 20 THE CALIFORNIA CARS INITIATIVE, INC., an unknown business entity; and FELIX KRAMER, an 21 individual, 22 23 24 25 26 27 28 HOWREY LLP Defendants. THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME Case No. 3:08-MC-80083 MHP (WDBx) 1 Third party Dave Bagshaw (hereinafter "Mr. Bagshaw") opposes Plaintiffs Calcar Inc. and 2 American Calcar Inc.'s Motion to Shorten Time to Respond to a Motion to Compel Mr. Bagshaw to 3 appear for a deposition. 1 Plaintiffs' motion should be denied because: 4 (1) there is no pressing need to expedite the schedule of the underlying motion and any 5 alleged inconvenience to Plaintiffs is the result of Plaintiffs' own conduct; 6 (2) despite the Certificate of Service asserting service on June 26, Plaintiffs did not serve the 7 underlying motion until June 30, 2008, leaving Mr. Bagshaw only four business days to respond to a ten 8 (10) page motion with seven (7) exhibits during a period when Mr. Bagshaw is out of town on a 9 previously-scheduled family vacation as well as only three (3) court days to respond to Plaintiffs' 10 motion to shorten time supported by two (2) declarations and eight (8) exhibits filed more than twenty 11 (20) days after Mr. Bagshaw served objections indicating that he would not appear; 12 (3) Plaintiffs' underlying motion lacks merit in that Mr. Bagshaw was not properly served 13 with the subpoena as no witness or mileage fees were provided; and 14 (4) further, a deposition of Mr. Bagshaw would be unduly burdensome and oppressive as 15 Mr. Bagshaw lacks any relevant information and/or any minimal alleged relevance is outweighed by the 16 burden on Mr. Bagshaw, especially when considered in light of Plaintiffs' counsel's conduct generally 17 and at prior depositions. 18 I. 19 BACKGROUND Mr. Bagshaw is the former CEO of Shutterfly, Inc. (the well known picture sharing website) and 20 also formerly held senior positions with Silicon Graphics, Excite@Home, and @ Home Networks. 21 22 23 24 25 26 27 28 HOWREY LLP If the Court should choose to shorten time or go forward with the hearing on August 6, Mr. Bagshaw requests that the hearing date be moved to the next available dates thereafter. Counsel for Mr. Bagshaw will be out of town on previously-scheduled travel on July 9 and August 6. Counsel for Bagshaw would be available during the weeks of July 14 or August 11. As shown in Exhibit A to the Ormé Declaration, after waiting 21 days after Mr. Bagshaw's service of objections, on June 26, Plaintiffs' counsel sent Mr. Bagshaw's counsel an email with proposed dates regarding shortening of time and demanding a response within four hours. Plaintiffs' counsel sent this email knowing that Mr. Bagshaw's counsel was occupied attending to a deposition that Plaintiffs had scheduled for that same day. THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME 1 1 Case No. 3:08-MC-80083 MHP (WDBx) 1 Defendant The California Cars Initiative (TCCI) is a non-profit advocacy group dedicated to 2 promoting plug-in electric hybrid vehicles (PHEVs). TCCI sells no products or services. For 3 approximately five months in 2006-07, Mr. Bagshaw volunteered some of his time to TCCI. Mr. 4 Bagshaw has not been a TCCI volunteer since early-mid 2007. 5 The underlying case was filed in June 2007 (after Mr. Bagshaw was no longer a volunteer for 6 TCCI) and concerns Plaintiffs' allegations of trademark infringement by TCCI. Plaintiffs sell 7 manuals/guides that may be placed in new cars using the names "Quick Tips" or "Startup Tips." These 8 items are totally unrelated to PHEVs. In an effort to avoid discovery of Plaintiffs' financial information, 9 Plaintiffs have dropped any claim to damages and now assert that they only seek an injunction against 10 non-profit TCCI. 11 The discovery deadline was scheduled for April 8, 2008. While the deadline for written 12 discovery closed on April 8, on April 7 and May 15, the Court issued orders extending the deadline for 13 taking depositions to June 30, 2008. Plaintiffs made no effort to seek Mr. Bagshaw's deposition until 14 May 23, 2008, after the original close of discovery, nearly one year after the case was filed, and 15 approximately one month before the revised close of deposition discovery. On May 27, 2008, a process 16 server served Mr. Bagshaw with a subpoena but failed to serve witness or mileage fees. 2 Though he 17 had no duty to do so, on June 5, 2008, Mr. Bagshaw served objections to the subpoena ­ noting the 18 failure to serve witness and mileage fees. On June 12 (a week later), Plaintiffs responded by letter 19 demanding that Mr. Bagshaw appear on June 17. A meet and confer was held on June 19 where counsel 20 for Mr. Bagshaw repeated Mr. Bagshaw's objections to the subpoena. On June 23, Plaintiffs' counsel 21 sent an email asserting that Plaintiffs will "seek sanctions." (See Exhibit E to Bleeker Declaration at p. 22 1.) Mr. Bagshaw's counsel responded on June 24, indicating that Mr. Bagshaw stood on his objections. 23 24 Plaintiffs' motion represents: "On May 23, 2008, Calcar served Bagshaw with a subpoena issued from this Court and a check for witness fees and mileage for deposition testimony to occur on 26 June 17, 2008." (Mot. at 2 (citing Exhibits A and B to the Bleeker Declaration).) Even as set forth in the exhibits to Plaintiffs' motion, that statement is incorrect. On May 23, Plaintiffs signed the subpoena 27 served on Mr. Bagshaw but the subpoena ­ minus witness and mileage fees ­ was not served until May 27. (See Exhibit A to the Bleeker Declaration (noting alleged service on May 27).) 28 25 HOWREY LLP 2 THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME 2 Case No. 3:08-MC-80083 MHP (WDBx) 1 On June 26, Plaintiffs filed a motion to compel Mr. Bagshaw to appear for deposition as well as 2 the instant motion to shorten time. While the motion to compel includes a Certificate of Service 3 executed by Plaintiffs' assistant, Betty Venuti, asserting that the motion was served by email on June 26 4 on counsel for Mr. Bagshaw (Mr. James Pistorino) as well as counsel for TCCI (Mr. William 5 Rooklidge), the motion was not served on either Mr. Bagshaw's or defendant's counsel. On June 30, 6 Plaintiffs' counsel (Mr. Warren Bleeker) responded to an inquiry regarding service of the motion to 7 compel conceding that the motion was not served as stated in the Certificate of Service and serving a 8 copy of the motion for the first time. (See Pistorino Declaration, filed concurrently herewith, at Ex. A.) 9 As of this writing, the incorrect Certificate of Service has not been corrected by Plaintiffs. 10 Plaintiffs have been engaged in a campaign of harassing volunteers and donors to TCCI. For 11 example, Google was a donor to TCCI and Plaintiffs previously sought to compel Google to appear for 12 a FED. R. CIV. P. 30(b)(6) deposition. On May 14, 2008, this Court denied Plaintiffs' motion compel 13 and granted Google's motion for protective order finding Plaintiffs' relevance arguments 14 "extraordinarily thin." (See Dkt. No. 29 at 2.) 15 16 17 A. There Is No Pressing Need To Expedite The Schedule Of The Underlying Motion And Any Alleged Inconvenience Is The Result Of Plaintiffs' Own Conduct As noted above, Plaintiffs made no effort to serve Mr. Bagshaw with a subpoena until May 27, 18 2008, nearly a year after the underlying suit was filed and after the original discovery deadline. On June 19 5, Mr. Bagshaw notified Plaintiffs that service was improper (because no witness or mileage fees were 20 provided) yet Plaintiffs made no effort to properly serve Mr. Bagshaw and waited a week to even 21 respond. After Mr. Bagshaw did not appear and repeated his objections on June 19, Plaintiffs waited yet 22 another week before filing the present motion. 23 Trial in the underlying matter is set for August 21. Accordingly, the motion to compel could be 24 heard on August 6 (or another appropriate date) and a deposition conducted thereafter if necessary, well 25 in advance of trial. 26 27 28 HOWREY LLP THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME 3 Case No. 3:08-MC-80083 MHP (WDBx) 1 2 3 B. Shortening The Schedule Would Not Provide Mr. Bagshaw Adequate Time To Respond As noted above, Mr. Bagshaw is currently on a family vacation from which he will not return 4 until after the July 4th holiday. Further, as noted above, Plaintiffs' counsel was on notice for weeks that 5 Mr. Bagshaw objected to the subpoena. Having waited weeks to file the present motion, Plaintiffs' 6 counsel seeks to provide Mr. Bagshaw just three court days from service of the motion to shorten time 7 to respond. That is not adequate time for Mr. Bagshaw to properly respond. 8 9 C. The Subpoena Is Invalid Because No Witness Or Mileage Fees Were Tendered It is elemental that a subpoena is invalid if witness and mileage fees are not tendered 10 simultaneously with the alleged service of the subpoena. See 9 Moore's Federal Practice § 45.21[2][a]; 11 CF & I Steel Corp. v. Mitsui & Co. (U.S.A.), 713 F.2d 494, 496 (9th Cir. 1983). 12 In the present case, Mr. Bagshaw was not served with witness and mileage fees and, thus, the 13 subpoena is invalid. (See Bagshaw Declaration, filed concurrently herewith, at ¶ 5.) 14 While Plaintiffs have provided a proof of service from the process server asserting that witness 15 and mileage fees were tendered, in fact, none were. This would not be the first time in this case that a 16 proof of service from a process server turned out to be incorrect. Indeed, previously, Plaintiffs provided 17 a proof of service from a process server asserting that personal service occurred at ~3:00am at an office 18 of the University of California at Berkeley and that witness and mileage fees were tendered. Plaintiffs 19 chose not to pursue the matter when the subpoenaed party pointed out that the office was not open at 20 ~3:00am, the person allegedly served was not present then, and that no witness or mileage fees were 21 provided in any of the materials that were served at a different time. (See Pistorino Decl. Ex. B.) 22 Indeed, as noted above, it is undisputed that the Certificate of Service on the underlying motion to 23 compel is not factually correct. 24 Mr. Bagshaw stands by his statement that witness and mileage fees were not served by the 25 process server. 26 27 28 HOWREY LLP THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME 4 Case No. 3:08-MC-80083 MHP (WDBx) 1 2 D. A Deposition Of Mr. Bagshaw Would Be Unduly Burdensome And Oppressive As noted above, Mr. Bagshaw was a volunteer for TCCI for a brief period between December 3 2006 and early-mid May 2007. 4 Plaintiffs have failed to identify any relevant information that Mr. Bagshaw might have. 5 Plaintiffs assert that Mr. Bagshaw might have information regarding "Bagshaw's knowledge of and role 6 in promoting products similar to plaintiffs," "marketing channels used by TCCI to sell its goods," and 7 "planned expansion of TCCI product lines." (Mot. at 4.) As TCCI has no products, Mr. Bagshaw has 8 no information on any of these topics. Likewise, Plaintiffs' claim that Mr. Bagshaw might have 9 information on "incidents of actual confusion" is both entirely speculative and incorrect. Mr. Bagshaw 10 has no such information. A deposition seeking information that Mr. Bagshaw does not have about 11 TCCI products which do not exist would be unduly burdensome and oppressive. Plaintiffs have already 12 deposed TCCI's founder (Felix Kramer) and another TCCI' volunteer (Ron Gremban), both of whom 13 had never heard of Plaintiffs before this suit and denied that TCCI had products. 14 A deposition would also be unduly burdensome and oppressive given Plaintiffs' conduct during 15 the case generally and at the recent deposition of TCCI volunteer Ron Gremban. 16 17 18 19 20 21 22 23 24 25 26 27 28 HOWREY LLP There, the following exchanges occurred: MR. BLEEKER: Q. What type of computer program was it? MR. PISTORINO: Objection; vague. THE WITNESS: What do you mean by "type"? MR. BLEEKER: Q. You don't know what the word "type" means? MR. PISTORINO: And actually let the record reflect that Mr. Bleeker just laughed at the witness. Mr. Bleeker, really, that's just unprofessional. I ask you not to do that again, please. MR. BLEEKER: Well, Mr. Pistorino, you know, I've given you a little bit of leeway, but you've been -- your speaking objections are fairly out of line, and you're going to cause this deposition to go way longer than it should go by objecting to every question, and Mr. Gremban is -- he is a -- he has a degree from Cal Tech in engineering. He seems like a very intelligent man. And so based on your instructions, any time you give the objection "vague and ambiguous," then clearly Mr. Gremban is claiming not to understand certain words such as "education" and "type," which are simple words used in everyday conversation, and given Mr. Gremban's technical background, and his degree from Cal Tech, and his obvious intelligence, I assume he does know what these words mean. I was not laughing at Mr. Gremban, but I was laughing at your approach to stonewall this deposition for some reason and make it last a lot longer than it should last. THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME 5 Case No. 3:08-MC-80083 MHP (WDBx) 1 2 3 4 5 MR. PISTORINO: Well, clearly the transcript of the deposition will reflect what occurred here, except for you laughing at the witness, and I'll caution you that should that happen again, we'll seek appropriate relief from the court. Now, if you have a question for the witness. MR. BLEEKER: I will ask you to stop your speaking objections and stop mischaracterizing what has occurred. At no time did I laugh at the witness, so that's an incorrect statement and false statement, and I'd appreciate you stop making false statements on the record; thank you. 6 (See Pistorino Decl. Ex. C at 19:22-21:14.) Mr. Bleeker's statement that he did not laugh at the witness 7 is contradicted by the transcript excerpt above and the accompanying declarations of Ron Gremban and 8 James Pistorino. (See Gremban Decl. at ¶ 3 and Pistorino Decl. at ¶ 6.) 9 Likewise, Plaintiffs' counsel has taken to referring to Mr. Gremban's office manager (Ms. Lynne 10 McAlister) as his "paramour" after Mr. Gremban indicated that Ms. McAlister is also his girlfriend. 11 (See Pistorino Decl. Ex. D; see also Gremban Decl. at ¶ 4.) 12 A volunteer should not be subjected to this kind of treatment and a deposition subjecting Mr. 13 Bagshaw to this kind of conduct would be unduly burdensome and oppressive. 14 II. 15 CONCLUSION For the reasons set forth above, Plaintiffs' motion to shorten time should be denied. Respectfully submitted, By: /s/ James C. Pistorino James C. Pistorino HOWREY LLP 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 Telephone: (650) 798-3500 Facsimile: (650) 798-3600 E-mail: William C. Rooklidge HOWREY LLP 4 Park Plaza, Suite 1700 Irvine, CA 92614-8557 Telephone: (949) 721-6900 Facsimile: (949) 721-6910 E-mail: Attorneys for Defendants THE CALIFORNIA CARS INITIATIVE, INC. and FELIX KRAMER and Third Party DAVE BAGSHAW 6 16 Dated: July 1, 2008 17 18 19 20 21 22 23 24 25 26 27 28 HOWREY LLP 21318559 THIRD PARTY DAVE BAGSHAW'S OPPOSITION TO PLAINTIFFS' MOTION TO SHORTEN TIME Case No. 3:08-MC-80083 MHP (WDBx)

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