PhoneDog, LLC v. Kravitz

Filing 25

CASE MANAGEMENT STATEMENT JOINT filed by PhoneDog, LLC. (Kirke, John) (Filed on 10/20/2011)

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JOHN C. KIRKE, #175055
SOPHIA E.C. SCHWARTZ, #272915
DONAHUE GALLAGHER WOODS LLP
Attorneys at Law
1999 Harrison Street, 25th Floor
Oakland, California 94612-3520
P.O. Box 12979
Oakland, California 94604-2979
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiff
PHONEDOG, LLC
CARY KLETTER
SALLY NGUYEN
KLETTER LAW FIRM
Attorneys at Law
1900 S. Norfolk Street, Suite 350
San Mateo, California 94403
Telephone:
415.434.3400
Attorneys for Defendant
NOAH KRAVITZ

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHONEDOG, LLC, a Delaware
corporation,

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CASE NO. 3:11-cv-03474-MEJ
JOINT CASE MANAGEMENT
STATEMENT

Plaintiff,
v.
NOAH KRAVITZ, an individual,

Date:
Time:
Ctrm:
Judge:

October 27, 2011
10:00 a.m.
B, 15th Floor, SF
Hon. Maria Elena James

Defendant.

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JOINT CASE MANAGEMENT STATEMENT

CASE NO. 11-CV-03474-MEJ

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Pursuant to Civil L.R. 16-9, the Order Setting Initial Case Management Conference and

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ADR Deadlines (DKT. 2), the Standing Order for All Judges of the Northern District of

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California–Contents of Joint Case Management Statement, and this Court's Order Setting Case

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Management Conference, Plaintiff PhoneDog LLC ("PhoneDog") and Defendant Noah Kravitz

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("Kravitz").

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1.

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Kravitz has been served.

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Jurisdiction and Service.

Plaintiff's Position Regarding Jurisdiction
The basis for the Court's jurisdiction over the claims is 28 U.S.C. § 1332(a).

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Kravitz's Position Regarding Jurisdiction

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This Court lacks jurisdiction because the amount in controversy is far less than $75,000.

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Kravitz filed a Motion to Dismiss because the amount in controversy is less than $75,000, and in

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its opposition, Plaintiff failed to substantiate with competent evidence that the amount in

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controversy is in excess of $75,000. Accordingly, Kravitz's Motion to Dismiss based upon lack of

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jurisdiction should be granted.

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2.

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Each month, PhoneDog's website attracts approximately 1.5 million users, and its videos

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reach an average audience of 3 million viewers per month. PhoneDog uses a variety of social

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media, including Twitter, to market and promote its services. PhoneDog engaged Kravitz as a

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product reviewer and video blogger in April 2006. As part of Kravitz 's work for PhoneDog,

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Kravitz submitted written and video content to PhoneDog, which was then transmitted to

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PhoneDog's users via a variety of mediums such as PhoneDog's website and PhoneDog's Twitter

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accounts. Further, PhoneDog granted Kravitz use of a Twitter account with the twitter handle

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@PhoneDog_Noah (the "Account") to use in connection with his work for PhoneDog. Kravitz

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accessed the Account using a password that constitutes PhoneDog's trade secret and submitted

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content to the Account in an effort to promote PhoneDog's services.

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employment with PhoneDog, the Account generated approximately 17,000 followers (the

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"Followers").

Plaintiff's Statement.

During Kravitz's

-1JOINT CASE MANAGEMENT STATEMENT

CASE NO. 11-CV-03474-MEJ

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After Kravitz suddenly left PhoneDog in October 2010, he continued to use the Account

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(albeit with a different Twitter handle) to communicate with PhoneDog's followers, promoting

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both his services and the services of his new employer, without PhoneDog's permission. As a

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result of Kravitz 's unauthorized use of the Account, PhoneDog has suffered damages in the

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amount of at least $340,000.

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3.

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Kravitz initially worked for Plaintiff as an independent contractor freelance journalist,

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later as an employee editor and manager and later still as a partner in the business. Kravitz was

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not paid in full as agreed by the parties, so on June 8, 2011 (prior to Plaintiff herein filing suit),

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Kravitz filed suit against Plaintiff in Alameda County Superior Court. After that suit was filed,

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Plaintiff herein filed this suit, which lacks merit, in an improper effort to forum shop and to

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attempt to create leverage against Kravitz in the State Court litigation. Plaintiff's claims in this

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case completely lack merit. For example, Plaintiff claims that it "granted Kravitz use of a twitter

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account". That allegation is entirely without merit. PhoneDog has never had control of Kravitz'

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twitter account (the "Account") at anytime. Kravitz created it, controlled all content on the twitter

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account at all times, and created, maintained at all times and had exclusive use of the password.

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Kravitz tweeted about his favorite TV show, sports teams he follows, rock concerts and a host of

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other non-PhoneDog related issues.

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remaining partner, talked with Kravitz about Kravitz continued use of the Account, and Klein

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asked Kravitz if Kravitz would post information onto the Account for PhoneDog, and Kravitz

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agreed to do so as a courtesy to Klein. The Account was never the property of PhoneDog, in fact,

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according to the Twitter Terms of Use, Twitter accounts cannot be bought or sold and they are all

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owned by Twitter. Plaintiff's allegation in the Complaint that it has suffered damages in excess of

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$75,000 because of the value of the Account's followers is baseless. The account cannot be

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bought or sold, and has no monetary value. Similarly the Account followers are people (like TV

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viewers) who also cannot be bought or sold. Plaintiff's allegation that Kravitz committed theft of

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trade secrets is without merit. Kravitz was a freelance journalist, he pushed his content over his

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Twitter account, the followers are available for all to see at all times, they are not "secret". The

Kravitz 's Statement.

In fact, after Kravitz left PhoneDog, Tom Klein, the

-2JOINT CASE MANAGEMENT STATEMENT

CASE NO. 11-CV-03474-MEJ

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password was only known by Kravitz at all times, and was not a "secret" PhoneDog was ever

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aware of.

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Plaintiff's Legal Issues. PhoneDog has alleged (a) interference with prospective

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economic advantage in connection with defendant Kravitz' wrongful interference with Twitter

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followers and PhoneDog's advertisers; and (b) defendant Kravitz' misappropriation and

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conversion of the the Twitter account and the password for the Twitter account.

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Defendants' Legal Issues. There are no allegations regarding interference with

advertisers in the Complaint on file. All of Plaintiff's allegations fail as a matter of law.

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Motions. Kravitz motion to dismiss is under submission.

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Amendment of Pleadings.

Plaintiff PhoneDog may amend the Complaint.

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Plaintiff does not believe that a specific deadline for amendment of the pleadings is necessary.

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Kravitz believes that a deadline for amending the Complaint within 30 days of the Case

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Management Conference would be appropriate.

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Evidence Preservation. The parties have issued evidence preservation instructions

to parties that may have relevant evidence.

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Disclosures. Initial disclosures are to be completed by October 25, 2011.

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Discovery.

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(a)

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(i)

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PhoneDog will need to take the deposition of Noah Kravitz and

representatives of his current employer.

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PhoneDog's Statement.

(ii)

PhoneDog does not believe that it will be necessary to deviated

from the limits on the number of depositions or on written discovery.
(b)

Kravitz Statement.
(i)

Kravitz will take the deposition of Tom Klein and other PhoneDog

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employees. Those depositions must take place within this District, and Kravitz requests that the

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Case Management Conference Order reflect that. PhoneDog has no legitimate reason to depose

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Kravitz current employer, and seeks to do so solely to harass and annoy Kravitz and to attempt to

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gain advantage over Kravitz in the pending Alameda County Superior Court case. Kravitz
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CASE NO. 11-CV-03474-MEJ

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requests that the Case Management Order specify that PhoneDog cannot depose Kravitz' current

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employer without filing a motion demonstrating why such a deposition is warranted.

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(ii)

Kravitz believes 50 interrogatories per party is warranted based on

the number of claims made by Plaintiff in this case.

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11.

Class Actions. This is not a class action.

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12.

Related Cases. There are no other cases the identical parties. However, State of

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California Alameda County Superior Court Case No. RG11-579535 involves PhoneDog, Kravitz

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and Tom Klein, a South Carolina resident.

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Relief.

PhoneDog has requested (1) an injunction as to the

ongoing

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misappropriation, (2) compensatory and punitive damages; and (3) reasonable attorneys' fees and

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costs.

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Defendant denies that plaintiff is entitled to any relief.

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14.

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Settlement and ADR. The Parties have a telephonic ADR conference scheduled

for October 25, 2011, and will proceed to ENE or mediation.
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Consent to Magistrate Judge for All Purposes. The parties have agreed to consent

to a Magistrate Judge for all purposes.
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Other references. This case is not suitable for reference to binding arbitration, a

special master, or the Judicial Panel on Multidistrict Litigation.
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Narrowing of Issues. The parties agree to narrow factual issues by stipulation

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and/or through requests for admission.

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presentation of evidence at trial by stipulating to the authenticity of certain documents and

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exhibits.

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In addition, the parties agree to streamline the

Expedited Schedule. The parties do not believe that this case may be handled on

an expedited basis with streamlined procedures.
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Scheduling.
(a)

The parties propose the following schedule: non-expert discovery cutoff

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on May 25, 2012; non-rebuttal expert witness designations and expert reports on June 29, 2012;

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rebuttal expert reports on July 27, 2012; expert discovery deadline on August 17, 2012;
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CASE NO. 11-CV-03474-MEJ