Miller v. Facebook, Inc. et al

Filing 78

Memorandum in Opposition re 77 MOTION for Administrative Relief, Pursuant to Civil Local Rule 7-11, To Allow Supplementation of the Record Pertaining to Facebook, Inc.'s Motion to Dismiss Pursuant to Rule 41(B), F.R.C.P. filed by Facebook, Inc. (Sutton, Theresa) (Filed on 9/13/2010) Modified on 9/14/2010 (wsn, COURT STAFF).

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I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] THOMAS J. GRAY (STATE BAR NO. 191411) [e-mail] THERESA A. SUTTON (STATE BAR NO. 211857) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) [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. 3:10-CV-00264 (WHA) FACEBOOK, INC.'S OPPOSITION TO PLAINTIFF'S MOTION FOR ADMINISTRATIVE RELIEF Court: Judge: Courtroom 9, 19th Floor Honorable William Alsup

OPPOSITION TO MOTION FOR ADMINISTRATIVE RELIEF 3:10-CV-00264 (WHA)

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I.

INTRODUCTION Daniel Miller's request to supplement his Opposition to Facebook's Motion to Dismiss

underscores why Facebook's motion should be granted. Facebook's motion was precipitated by Miller's failure to make reasonable efforts to serve defendant Yeo, despite this Court's orders requiring him to do so. Miller's belated request to append the second page of an agreement he contends is "relevant and directly pertinent" to his Opposition is simply another example of his lack of diligence in prosecuting his case. His request should be denied. II. BACKGROUND For the first seven months of this litigation, Miller made no effort to serve defendant Yeo. 3/18/10 Hr'g Trans. at 18:20-19:16. Facebook raised the issue with the Court, and the Court instructed Miller to file an application for extending Rule 4(m)'s 120-day service limit (and thereby providing good cause for having inexplicably delayed service). Id. Miller ignored the Court's instructions. Dkt. No. 46 at 9:11-18. The Court then ordered Miller to serve Yeo by July 30 or face dismissal of this action. Dkt. No. 56 at 13:1-3. In response, Miller mailed a copy of the summons and complaint to a New York UPS office where Yeo may have rented a mailbox. Dkt. No. 72-2, ¶ 6. Miller did so despite having twice represented to this Court that Miller learned Yeo no longer lives in New York (and receiving additional evidence indicating that Yeo is not a New York resident). Dkt. No. 72-6, ¶ 5; Dkt. No. 75, Ex. A at 4:11-12; Dkt. No. 72-2 at 3:25-4:8. July 30 has come and gone, and Yeo has not made an appearance in this case. On August 4, 2010, Facebook filed its Motion to Dismiss pursuant to Rule 41(b). Dkt. No. 70. On August 26, 2010, Miller filed his opposition, which included an incomplete UPS Mailbox Service Agreement, among other materials. Dkt. No. 72-3, Ex. A. In his Opposition, Miller admitted the agreement was incomplete, but stated that UPS indicated it had produced all documents in its possession. Opp. at 5. Miller apparently took UPS's word as gospel and made no further effort to secure a complete record on this issue until Facebook identified (in its September 2 Reply memorandum) an evidentiary problem with the purported agreement between UPS and Yeo. Dkt. No. 77, ¶¶ 1-4. Prompted by Facebook's concern about the failure of evidence, on September 7, -1OPPOSITION TO MOTION FOR ADMINISTRATIVE RELIEF 3:10-CV-00264 (WHA)

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2010, Miller appears to have finally called UPS again to get the missing page of the agreement. Id., ¶ 4. Now, three months after UPS's noticeably incomplete production, Miller asks the Court to allow him to supplement the record. Dkt. No. 77. His belated request should be denied. III. ARGUMENT Miller's request should be denied because A) it is not the proper subject of an Administrative Motion but rather is a disguised sur-reply; B) Miller does not explain why "page 2" is "relevant and directly pertinent to the issues raised in Facebook's Motion," as he must; and C) "page 2" does not rectify Miller's failure to comply with this Court's Order to serve Yeo by July 30, which in this case means assure that Yeo actually received the summons and complaint. A. Miller's Request Is Improper Under Civil L.R. 7-11

Miller's request to supplement the evidentiary record is not a simple administrative matter that should be resolved by Local Rule 7-11 ­ a rule reserved for motions to seal, motions for leave to file oversized briefs and other similar, administrative proceedings. Civ. L.R. 7-11. Miller's request, instead, is really a motion for leave to file a sur-reply. In his motion (which is styled more as a declaration), Miller seeks substantive relief: Miller asks the Court to allow him to modify the evidentiary record in a proceeding that depends entirely on whether or not he has met his burden of proof. Dkt. No. 77. His request comes long after all authorized briefing is complete and, if granted, deprives Facebook of an opportunity to respond meaningfully to the new submission. Consequently, Miller's request should be denied as improper under Local Rule 7-11. B. Miller's Request Does Not Satisfy Rule 7-11's Requirements

Even if Miller's request were properly made pursuant to Local Rule 7-11, he has not satisfied the Rule's requirement that he set forth the reasons supporting his motion. Civ. L.R. 711(a). Instead, Miller merely concludes that "page 2" is "relevant and directly pertinent to the issues raised in Facebook's Motion." Dkt. No. 77, ¶ 5. Miller does not, however, explain how or why it is relevant and pertinent to Miller's failure to serve Yeo by July 30, 2010, as the Court ordered him to do. Id. Moreover, the vast majority of Miller's motion demonstrates just how little Miller has done to comply with the Court's order to bring Yeo into this case. -2OPPOSITION TO MOTION FOR ADMINISTRATIVE RELIEF 5:10-CV-00264 (WA)

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Despite having received an incomplete copy of the MSA three months ago ­ an agreement that Miller argues grants UPS authority to accept service on Yeo's behalf ­ Miller's counsel made virtually no effort to obtain a complete copy until 10 days before Facebook's motion is to be heard. Dkt. No. 77, ¶¶ 1-4. Though Miller's counsel asserts that he had called UPS shortly after receiving the incomplete agreement and was told he had everything, recent events show that is untrue. Id.¶¶ 3-4. Indeed, it appears with a little perseverance, Miller could have obtained and submitted "page 2" with his Opposition and explained its relevance. Id., ¶ 4. Instead, he accepted without question an indisputably incomplete agreement, which he now contends is "relevant and directly pertinent." Miller has not satisfied Rule 7-11's mandate to provide the basis for his request and, thus, it should be denied. C. Page 2 Does Not Establish That Miller Served Yeo

Even if the Court were to look past Miller's oversight, his request still should be denied. The Court ordered Miller to serve Yeo by July 30 or face dismissal of this case. Dkt. No. 56 at 13:1-3; Dkt. No. 69 at 3:16-21. Nothing in "page 2" establishes or even suggests that Miller complied with this Court's order. For instance, the agreement does not authorize UPS to accept legal service of process on behalf of Yeo and specifically contemplates that the customer (Yeo) can reject mail and packages that were previously "accepted" by UPS. Dkt. No. 77-2, ¶ 12 ("In the event Customer refuses to accept any mail or package, the Center may return the mail or package to the sender ..."). More importantly, because Yeo still has not appeared, this new page does not overcome Miller's failure to "establish actual delivery to the person to be served." Cal. Code Civ. Proc. § 417.20(a). IV. CONCLUSION Miller's belated effort to supplement the record with a document he could have, with reasonable diligence, obtained before the parties completed briefing should be rejected. His improper motion for administrative relief should be denied.

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OPPOSITION TO MOTION FOR ADMINISTRATIVE RELIEF 5:10-CV-00264 (WA)

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Dated: September 13, 2010

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

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OPPOSITION TO MOTION FOR ADMINISTRATIVE RELIEF 5:10-CV-00264 (WA)