Twitter, Inc. v. Skootle Corp. et al

Filing 48

Response to Order to Show Cause 45 Order, Plaintiff's Response to Order to Show Cause byTwitter, Inc.. (Graves, Charles) (Filed on 7/2/2012)

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1 2 3 4 5 6 7 DAVID H. KRAMER, State Bar No. 168452 CHARLES T. GRAVES, State Bar No. 197923 RIANA S. PFEFFERKORN, State Bar No. 266817 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: Attorneys for Plaintiff Twitter, Inc. 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 13 14 15 16 17 18 TWITTER, INC., a Delaware corporation, ) ) Plaintiff, ) ) v. ) ) SKOOTLE CORP., a Tennessee corporation; JL4 ) WEB SOLUTIONS, a Philippines corporation; ) JAMES KESTER, an individual; JAYSON ) YANUARIA, an individual; and GARLAND E. ) HARRIS, an individual, ) ) Defendants. ) ) ) CASE NO.: 3:12-cv-1721-SI PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE CASE NO: 3:12-CV-1721-SI 1 INTRODUCTION 2 Plaintiff Twitter, Inc. (“Twitter” or “Plaintiff”) respectfully submits this response to the 3 Court’s June 25, 2012 Order to Show Cause for the joinder of Defendants JL4 Web 4 Solutions/Jayson Yanuaria (collectively, “TweetAttacks”), Skootle Corp./James Kester 5 (collectively, “TweetAdder”), James Lucero (“Lucero”), and Garland E. Harris (“Harris”) (all 6 together, “Defendants”)1 (Dkt. 45). 7 As set forth in Twitter’s Complaint, unscrupulous mass marketers have attempted to 8 flood the Twitter service with unsolicited messages (“spam”). Their wrongdoing often is 9 enabled by software (“spamware”), deliberately designed and advertised to induce breaches of 10 Twitter’s Terms of Service, which automates the process of sending “Tweets” on Plaintiff’s 11 service. Twitter has been forced to incur massive expenses to combat these attackers, all of 12 whom violate its Terms of Service, denigrate the experience of its users, and cost it goodwill. 13 Twitter brought several of the worst offenders together as Defendants in a single suit 14 which involves the same background facts, the same contract terms, virtually identical conduct, 15 and the same categories of harm to Twitter. In light of this shared fact background, as well as 16 the common legal issues in play, joinder of the seven original Defendants was proper under Rule 17 20 of the Federal Rules of Civil Procedure. 18 As some Defendants have either voluntarily settled or ceased their misconduct and 19 attempted to hide from Twitter, this lawsuit has narrowed. At this point, the TweetAdder 20 Defendants appear to be the only Defendants who are openly continuing their unlawful conduct. 21 For these reasons, and while Twitter believes that the original Defendants were all properly 22 joined at the outset, the question of joinder has become – or will soon become – moot. 23 Accordingly, and for reasons explained herein, the Court’s sua sponte order should be 24 discharged. 25 // 26 27 28 1 The Court previously dismissed Defendant Justin Clark. (Dkt. 43). Plaintiff has since dismissed Defendant Lucero. (Dkt. 46). PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE -2- CASE NO: 3:12-CV-1721-SI 1 2 ARGUMENT I. Defendants Were Properly Joined Under Rule 20. 3 a. Legal Standard 4 Rule 20 of the Federal Rules of Civil Procedure allows the permissive joinder of 5 defendants in one action if “(A) any right to relief is asserted against them jointly, severally, or in 6 the alternative with respect to or arising out of the same transaction, occurrence, or series of 7 transactions or occurrences; and (B) any question of law or fact common to all defendants will 8 arise in the action.” 9 convenience and to expedite the final determination of disputes, thereby preventing multiple 10 lawsuits.” League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th 11 Cir. 1977) (citations omitted). “‘Under the rules, the impulse is toward entertaining the broadest 12 possible scope of action consistent with fairness to the parties; joinder of claims, parties and 13 remedies is strongly encouraged.’” Id. (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 14 715, 724 (1966)). 15 discretion of the district court.” Wynn v. Nat’l Broad. Co., Inc., 234 F. Supp. 2d 1067, 1078 16 (C.D. Cal. 2002) (citations and quotations omitted). FED. R. CIV. P. 20(a)(2). The rule’s purpose is “to promote trial “A determination on the question of joinder of parties lies within the 17 b. Analysis 18 The “same transaction or occurrence” requirement of Rule 20(a)(1)(A) employs a 19 “flexible” test requiring that claims asserted against joined parties be “logically related.” 20 OpenMind Solutions, Inc. v. Does 1-39, No. C 11-3311 MEJ, 2011 WL 4715200, at *7 (N.D. 21 Cal. Oct. 7, 2011) (quoting Disparte v. Corporate Exec. Bd., 223 F.R.D. 7, 10 (D.D.C. 2004)); 22 Call of the Wild Movie, 770 F. Supp. 2d at 342. There is a logical relationship between the 23 claims alleged against the Defendants in the Complaint. They fraudulently agreed to the Twitter 24 Terms of Service (“TOS”) when creating user accounts, then breached the “Spam and Abuse” 25 provisions thereof through their deceptive activities, which caused numerous users’ 26 dissatisfaction with Twitter and imposed costly burdens on Twitter. (Compl. ¶¶ 26-31, 61, 72- 27 73, 78). Defendants’ actions caused Plaintiff the same types of injuries, including (1) loss of 28 goodwill; (2) loss of existing and prospective Twitter users; and (3) substantial expenditures on PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE -3- CASE NO: 3:12-CV-1721-SI 1 technical anti-spam measures, server resources, and Trust & Safety team personnel, who have 2 invested a great deal of time and effort fighting Defendants’ wrongdoing. (Compl. ¶¶ 25, 74). 3 Such a “degree of factual commonality underlying the claims” makes permissive joinder 4 appropriate, Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997), particularly in light of the 5 liberal policy of “entertaining the broadest possible scope of action.” Gibbs, 383 U.S. at 724. 6 Therefore, Twitter’s joinder of the Defendants was appropriate under Rule 20(a)(2)(A). 7 Next, under Rule 20(a)(2)(B), “some question of law or fact common to all parties must 8 arise in the action.” Desert Empire Bank, 623 F.2d at 1375 (citation omitted). The Complaint 9 asserts three causes of action against all Defendants. (Compl. ¶¶ 58-80). Those claims entail the 10 same legal issues, such as, for example, the interpretation of the Twitter TOS and Twitter’s 11 reasonable reliance on the Defendants’ agreement to the TOS. 12 Defendants likewise share a host of fact issues, such as how the Twitter service and API operate, 13 the Twitter Trust & Safety team’s anti-spam efforts, and the harm the Defendants have caused. 14 Further, the Complaint requests common elements of injunctive relief against all the Defendants. 15 (Compl. at 18-20). While it is possible that a Defendant might present a slightly different 16 defense to Twitter’s claims, “that does not defeat, at this stage of the proceedings, the 17 commonality in facts and legal claims that support joinder under Rule 20(a)(2)(B).” Call of the 18 Wild Movie, 770 F. Supp. 2d at 343; see also MCGIP, LLC v. Does 1-18, No. C-11-1495 EMC, 19 2011 WL 2181620, at *1 (N.D. Cal. June 2, 2011) (citation omitted) (same). The claims against the 20 Because joinder is permissible under Rule 20, the Court must next consider whether 21 joinder “would prejudice any party or result in needless delay” in resolving the case, Call of the 22 Wild Movie, 770 F. Supp. 2d at 342, and would comport with notions of fundamental fairness. 23 Desert Empire Bank, 623 F.2d at 1375. Permitting joinder in the instant case is fair and 24 promotes convenience, administrative efficiency, and judicial economy. Joinder will lead to a 25 more expedient resolution and prevents further crowding of the Court’s docket, whereas the 26 existence of multiple cases would merely delay all of them and result in unnecessary expenses 27 and duplicative discovery, thereby prejudicing Plaintiff. See Call of the Wild Movie, 770 F. 28 Supp. 2d at 344 (forcing plaintiffs to file separate lawsuits, incur separate fees, and pursue PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE -4- CASE NO: 3:12-CV-1721-SI 1 separate discovery would not “secure a just, speedy, and inexpensive determination of the 2 action” (internal quotation omitted)). The instant case has already been narrowed considerably, 3 so case management will not be complex. See Hard Drive Prods., Inc. v. Does 1-188, 809 F. 4 Supp. 2d 1150, 1164 (N.D. Cal. 2011) (ordering severance where joinder of nearly 200 5 defendants “would result in a logistically unmanageable case” (citation omitted)). Furthermore, 6 no prejudice will result to the Defendants from being joined in a single action. While, formally, 7 five Defendants remain, in effect there are three. 8 respective principals and business entities for TweetAttacks and TweetAdder, as well as the 9 similarity of Plaintiff’s claims against both, eliminates the potential that defending the case will 10 be prejudicial with regard to such considerations as of number of witnesses or discoverable 11 documents. The unanimity of interest between the 12 In sum, the Defendants were properly joined in the Complaint because Rule 20’s 13 requirements are met and joinder will not prejudice any party or delay resolution, whereas 14 severance would cause needless delay and would prejudice Plaintiff. 15 II. The Current Narrowing of the Case Renders the Joinder Issue Irrelevant. 16 As noted, Defendants Clark and Lucero have already been dismissed from the case. 17 (Dkt. 43, 46). Defendants TweetAdder, TweetAttacks, and Harris remain. As to TweetAttacks, 18 its principals appear to have shuttered their spamware service and cancelled the email accounts 19 they used to communicate with customers, and they are attempting to dodge Twitter’s efforts to 20 serve them in the Philippines (which is not a Hague Convention signatory). Twitter therefore 21 expects to dismiss them without prejudice in the coming days. 22 23 Separately, Plaintiff is in the process of discussing resolution with Defendant Harris in confidential settlement communications. 24 As a result, it is likely that the only remaining Defendants will soon be the two 25 TweetAdder Defendants (Skootle and Kester), because TweetAdder has chosen to persist in its 26 wrongful conduct despite the lawsuit. The joinder of Skootle and Kester is not in question, in 27 light of the Court’s order noting that Plaintiff has alleged a connection between the two. (Dkt. 28 45 at 2). Therefore, while permissive joinder of all of the Defendants was proper from the PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE -5- CASE NO: 3:12-CV-1721-SI 1 beginning, the joinder question likely will soon be moot as only the TweetAdder Defendants will 2 remain in this case. And even if Harris were to remain in the case, the common facts and legal 3 issues are sufficient for continued joinder under Rule 20. 4 CONCLUSION 5 Plaintiff properly joined all Defendants under Rule 20 from the outset. For all practical 6 purposes, the question will soon be moot as Plaintiff expects that only the TweetAdder 7 Defendants will remain in the case for purposes of a Rule 26(f) conference. 8 9 Dated: July 2, 2012 10 Respectfully submitted, 17 /s Charles T. Graves David H. Kramer Charles T. Graves Riana S. Pfefferkorn WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: Email: Email: 18 Attorneys for Plaintiff Twitter, Inc. 11 12 13 14 15 16 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE -6- CASE NO: 3:12-CV-1721-SI

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