Oracle America, Inc. v. Google Inc.

Filing 43

*** FILED IN ERROR. REFER TO DOCUMENT #44 . *** RESPONSE TO ORDER TO SHOW CAUSE by Google Inc.. (Zimmer, Donald) (Filed on 11/1/2010) Modified on 11/1/2010 (feriab, COURT STAFF).

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DONALD F. ZIMMER, JR. (SBN 112279) [e-mail] CHERYL A. SABNIS (SBN 224323) [e-mail] KING & SPALDING LLP 101 Second Street ­ Suite 2300 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] SCOTT T. WEINGAERTNER (Admitted Pro Hac Vice) [e-mail] ROBERT F. PERRY [e-mail] BRUCE W. BABER (Admitted Pro Hac Vice) [e-mail] KING & SPALDING LLP 1185 Avenue of the Americas New York, NY 10036-4003 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant GOOGLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ORACLE AMERICA, INC. Plaintiff, v. GOOGLE INC. Defendant. Case No. 3:10-cv-03561-WHA Honorable Judge William H. Alsup GOOGLE INC.'S RESPONSE TO THE COURT'S ORDER TO SHOW CAUSE

GOOGLE INC.'S RESPONSE TO THE COURT'S ORDER TO SHOW CAUSE CIVIL ACTION NO. CV 10-03561

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RESPONSE TO SHOW CAUSE ORDER On October 28, 2010, the Court ordered Google Inc. to show cause why its pending

3 motion to dismiss count VIII of plaintiff's complaint or, in the alternative, for a more definite 4 statement, filed on October 4, is not moot in view of Oracle America Inc.'s recently-filed 5 Amended Complaint For Patent And Copyright Infringement. Because Oracle's Amended 6 Complaint effectively concedes the merits of Google's motion to dismiss and supersedes the 7 original complaint, Google agrees with the Court's suggestion that the filing of the Amended 8 Complaint renders moot the specific issues raised in Google's motion. Google therefore agrees 9 that its Motion To Dismiss should be denied as moot, without prejudice to Google's right to file 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a new motion to address issues raised by Oracle's Amended Complaint. In the spirit of proceeding as efficiently as possible through the early stages of this case, Google notes that Oracle's filing of the Amended Complaint will require Google to file a new answer (to the Amended Complaint) and counterclaims, which will replace Google's original Answer And Counterclaims, filed on October 4, and will become Google's operative pleading. Accordingly, Google believes that Oracle's pending motion to dismiss and to strike, filed on October 26, is also moot, or will necessarily become so once Google files its answer to the Amended Complaint. Oracle's motion is directed to Google's answer to Oracle's original complaint and its counterclaims asserted in response to the original complaint, which will in the near future be superseded by a further pleading. Thus, as Oracle argued in opposition to Google's motion to dismiss, Oracle's motion to dismiss and to strike should also be denied on the grounds that it will be moot once Google responds to the Amended Complaint. /// /// /// /// /// /// /// 1
GOOGLE INC.'S RESPONSE TO THE COURT'S ORDER TO SHOW CAUSE CIVIL ACTION NO. CV 10-03561

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DATED: November 1, 2010

Respectfully submitted, KING & SPALDING LLP

By: /s/ Scott T. Weingaertner ______ SCOTT T. WEINGAERTNER (Pro Hac Vice) [e-mail] ROBERT F. [e-mail] [e-mail] BRUCE W. BABER (Pro Hac Vice) [e-mail] KING & SPALDING LLP 1185 Avenue of the Americas New York, NY 10036-4003 Telephone: [phone] Facsimile: [phone] DONALD F. ZIMMER, JR. (SBN 112279) [e-mail] CHERYL A. SABNIS (SBN 224323) [e-mail] KING & SPALDING LLP 101 Second Street ­ Suite 2300 San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR DEFENDANT GOOGLE INC.

I, Donald F. Zimmer, Jr., as the ECF user and filer of this document, attest that concurrence in the filing of this document has been obtained from the other signatory.

Dated: November 1, 2010

By: /s/ Donald F. Zimmer, Jr. For Defendant GOOGLE INC.

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GOOGLE INC.'S RESPONSE TO THE COURT'S ORDER TO SHOW CAUSE CIVIL ACTION NO. CV 10-03561