PhoneDog, LLC v. Kravitz

Filing 46

MOTION for Leave to File First Amended Answer and Counterclaims filed by Noah Kravitz. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Keane, Margaret) (Filed on 4/30/2012)

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MARGARET A. KEANE (State Bar No. 255378)
[e-mail]
DEWEY & LEBOEUF LLP
Post Montgomery Center
One Montgomery Street, Suite 3500
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

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Cary Kletter (State Bar No. 210230)
Sally Trung Nguyen (State Bar No. 267275)
[e-mail]
KLETTER LAW FIRM
1900 S. Norfolk Street, Suite 350
San Mateo, CA 94403
Telephone: [phone]

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Attorneys for Defendant Noah Kravitz
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IN THE 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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Plaintiff,
v.

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NOAH KRAVITZ, an individual,
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Defendant.
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Case No. 3:11-cv-03474 (MEJ)
DEFENDANT NOAH KRAVITZ’S
NOTICE OF MOTION AND MOTION
FOR LEAVE TO FILE FIRST
AMENDED ANSWER AND
COUNTERCLAIMS
Date: Thursday, June 7, 2012
Time: 10:00 a.m.
Courtroom: B, 15th Floor
Judge: Hon. Maria-Elena James

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MOTION FOR LEAVE TO FILE AMENDED ANSWER

Case No. 3:11-cv-03474 (MEJ)

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NOTICE OF MOTION AND MOTION

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE THAT on Thursday, June 7, 2012 at 10:00 a.m. or as soon

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thereafter as this matter may be heard in Courtroom B – 15th Floor of the above-referenced Court,

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located at 450 Golden Gate Avenue, San Francisco, California, before the Honorable Maria-Elena

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James, Defendant Noah Kravitz (“Kravitz”), by and through undersigned counsel, will, and hereby

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does move this Court pursuant to Federal Rule of Civil Procedure 15(a)(2) for leave to file a First

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Amended Answer and Counterclaims. This motion is based on the accompanying Memorandum of

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Points and Authorities, Kravitz’s First Amended Answer and Counterclaims (Exhibit A), and the

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Proposed Order filed herewith. The motion is further based on all of the files and records of this

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action and on any additional material that may be elicited at the hearing of this motion.

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MEMORANDUM OF POINTS AND AUTHORITIES

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INTRODUCTION

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Pursuant to the Court’s Case Management Order entered on October 21, 2011, the deadline

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for parties to file amended pleadings is April 30, 2012. Kravitz files this Motion and the proposed

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amended pleading within that deadline. As set forth in the proposed First Amended Answer and

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Counterclaims attached hereto as Exhibit A, Kravitz alleges in the Sixth Counterclaim that Plaintiff’s

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attempt to impose and/or enforce a covenant not to compete in violation of California Business &

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Professions Code § 16600 et seq. constitutes unfair, fraudulent, and unlawful conduct in violation of

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California Business & Professions Code § 17200 et seq.

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Specifically, Kravitz alleges that PhoneDog expressly consented to Kravitz’s changing the

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Twitter handle on the Twitter Account at issue and to Kravitz’s ongoing use of the Account under

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the new handle @noahkravitz. After Kravitz resigned from PhoneDog and began a full-time

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position at TechnoBuffalo, a company that offers some services competing with those of PhoneDog,

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PhoneDog represented to Kravitz that it did not consent to Kravitz publishing mobile content while

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he was receiving compensation from PhoneDog, claiming that such action was barred by non-

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compete protocol, though the parties had no such agreement. PhoneDog subsequently cancelled a

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check for amounts due to Kravitz under the Commission Agreement and sued Kravitz for ownership
MOTION FOR LEAVE TO FILE AMENDED ANSWER

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Case No. 3:11-cv-03474 (MEJ)

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of the Twitter handle. As a result of such conduct, Kravitz alleges that PhoneDog has violated

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California Business and Professions Code § 17200 et seq. and that Kravitz has lost money in the

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form of commissions forfeited based on the alleged violation of the aforementioned covenant not to

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compete, as well as substantial legal fees expended when he was forced to initial legal action to

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recover the funds due to him (which he has not recovered to date) and was forced to defend this

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action.

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ARGUMENT

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Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading “shall freely
[be] give[n] … when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend is “to be applied

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with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir.

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2001) (citation omitted). None of the factors relied upon by the courts in denying a motion for leave

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to amend a pleading, “bad faith, undue delay, prejudice to the opposing party, and/or futility,” are

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present here. Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir. 1990).

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The amended counterclaim asserted are made in good faith and within the time permitted by

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the Court. Plaintiff will have the chance to answer the amended counterclaim and thus will not be

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prejudiced. Finally, Plaintiff cannot show that the amended counterclaim is certain to result in

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summary judgment in Plaintiff’s favor, and therefore cannot make the requisite showing that the

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amendment is futile. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987).

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Allowing an amendment would be in the interests of justice. Defendant’s counsel from

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Dewey & LeBoeuf had very little time to answer Plaintiff’s First Amended Complaint due to the

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mediation that was scheduled almost immediately after Dewey & LeBoeuf’s first appearance in this

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case. While the parties have engaged and are continuing to engage in extensive settlement

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discussions, Defendant files this Motion to preserve his right to assert all viable counterclaims

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against Plaintiff.

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MOTION FOR LEAVE TO FILE AMENDED ANSWER

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Case No. 3:11-cv-03474 (MEJ)

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CONCLUSION
For the foregoing reasons, Kravitz respectfully requests that the Court grant this Motion for

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Leave to Amend and allow for entry of the First Amended Answer and Counterclaims attached

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hereto as Exhibit A.

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DATED: April 30, 2012

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By:

/s/ Margaret A. Keane

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MARGARET A. KEANE (SBN 255378)
[e-mail]
Post Montgomery Center
One Montgomery Street, Suite 3500
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]

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and

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Cary Kletter (State Bar No. 210230)
Sally Trung Nguyen (State Bar No. 267275)
[e-mail]
KLETTER LAW FIRM
1900 S. Norfolk Street, Suite 350
San Mateo, CA 94403
Telephone: [phone]

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Attorney for Defendant Noah Kravitz
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US1 32404083.1

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MOTION FOR LEAVE TO FILE AMENDED ANSWER

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Case No. 3:11-cv-03474 (MEJ)