Miller v. Facebook, Inc. et al

Filing 48

MOTION to Continue May 27, 2010 Case Management Conference filed by Facebook, Inc.. (Attachments: # 1 Proposed Order Proposed Order Granting Motion to Continue CMC, # 2 Affidavit Declaration of Theresa A. Sutton in Support of Motion for Administrative Relief to Continue CMC)(Sutton, Theresa) (Filed on 5/19/2010)

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS GRAY (STATE BAR NO. 191411) [e-mail] THERESA A. SUTTON (STATE BAR NO. 211857) [e-mail] JULIO C. AVALOS (STATE BAR NO. 4476370) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DANIEL M. MILLER, Plaintiff, v. FACEBOOK, INC. and YAO WEI YEO, Defendants.

Case No. 5:10-CV-00264 (WA) FACEBOOK, INC.'S MOTION FOR ADMINISTRATIVE RELIEF, PURSUANT TO CIVIL LOCAL RULE 7-11, FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE Date: Time: Court: Judge: May 27, 2010 8:00 A.M. Courtroom 9, 19th Floor Honorable William Alsup

FACEBOOK'S MOTION FOR ADMIN RELIEF TO CONTINUE CMC 5:10-CV-00264 (WA)

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I.

REQUESTED RELIEF Pursuant to Civil L.R. 7-11, Facebook, Inc. respectfully requests that the Court continue

the May 27, 2010, Case Management Conference until a date and time convenient to the Court after defendant Yeo appears and the Court resolves the currently-pending Motion for Leave to Amend Complaint. Dkt. No. 44. At this point, the case is at its earliest stages, and a Case Management Conference is premature. II. BACKGROUND Plaintiff filed a complaint on October 9, 2009, asserting various claims of copyright and trademark infringement against Yao Wei Yeo and Facebook, Inc. Dkt. No. 1. Defendant Yeo has not been served with the complaint. Facebook filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on February 2, 2010. Dkt. No. 25. Plaintiff amended his complaint the day before Facebook's Motion was to be heard. Dkt. No. 37. On March 31, 2010, the Court granted Facebook's Motion to Dismiss the complaint. Dkt. No. 43. In that Order, the Court offered plaintiff an opportunity to explain why an amended complaint would cure the deficiencies identified in its Order. Id. at 8. At the hearing on Facebook's Motion to Dismiss, Facebook's counsel informed the Court that defendant Yeo had not yet been served, as required by Fed.R.Civ.P. 4(m). The Court then instructed plaintiff to file a motion for an extension of time in which to serve defendant Yeo and explain what measures he had taken to locate him. 3/18/10 Hr'g Tr. 19:13-14. Plaintiff never filed such a motion. Nonetheless, on April 14, 2010, plaintiff filed a Motion for Leave to Amend Complaint, in which he purports to cure those deficiencies. Dkt. No. 44. Facebook opposed that motion, which is set for hearing on May 27, 2010. Dkt. No. 46. Plaintiff did not file a reply to Facebook's Opposition. On April 15, 2010, the Court issued a Notice rescheduling the Case Management Conference from April 15 to May 27. Dkt. No. 45. On May 18, 2010, plaintiff's counsel contacted Facebook to meet and confer pursuant to Fed.R.Civ.P. 16. Declaration of Theresa A. Sutton in Support of Facebook's Motion for Administrative Relief, ¶ 2. In response, Facebook suggested that the parties seek to continue the Case Management Conference until the Court -1FACEBOOK'S MOTION FOR ADMIN RELIEF TO CONTINUE CMC 5:10-CV-00264 (WA)

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resolves the currently-pending Motion. Id. Plaintiff refused to so stipulate. Id. III. DISCUSSION Facebook respectfully requests that the Court reschedule the Case Management Conference until the currently-pending Motion for Leave to Amend Complaint is resolved and Defendant Yeo is served and makes an appearance. Holding a Case Management Conference before all defendants appear and the parties know which claims are at issue is a waste of judicial resources. Plaintiff has revised his complaint twice. Dkt. Nos. 37, 44. He has not followed the Court's instructions. 3/18/10 Hr'g Tr. 19:13-14. He has not filed a reply in support of his Motion for Leave to Amend. Although he has not yet served defendant Yeo, a claim for direct copyright infringement against him remains in the complaint. Dkt. No. 44. Proceeding with this case before Mr. Yeo is served and before this case even has an operative complaint is inefficient. Mr. Yeo is a necessary party. His absence makes difficult (perhaps impossible) proceeding with discovery or efficiently managing this case. Until the Court finally determines the propriety of the proposed amended complaint, proceeding with a Case Management Conference makes little sense. This case is not ready for case management. IV. CONCLUSION Facebook respectfully requests that the Court reschedule the May 27, 2010, Case Management Conference to a date and time convenient to the Court after defendant Yeo appears and the currently-pending Motion for Leave to Amend Complaint is resolved.

Dated: May 19, 2010

ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ Theresa A. Sutton /s/ Theresa A. Sutton Attorneys for Defendant FACEBOOK, INC.

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FACEBOOK'S MOTION FOR ADMIN RELIEF TO CONTINUE CMC 5:10-CV-00264 (WA)