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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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: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
Twitter, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TWITTER, INC., a Delaware corporation,

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Plaintiff,
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v.
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SKOOTLE CORP., a Tennessee corporation; JL4 )
WEB SOLUTIONS, a Philippines corporation;
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JAMES KESTER, an individual; JAYSON
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YANUARIA, an individual; and GARLAND E. )
HARRIS, an individual,
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Defendants.
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CASE NO.: 3:12-cv-1721-SI
PLAINTIFF’S RESPONSE TO
ORDER TO SHOW CAUSE

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PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

CASE NO: 3:12-CV-1721-SI

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INTRODUCTION

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Plaintiff Twitter, Inc. (“Twitter” or “Plaintiff”) respectfully submits this response to the

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Court’s June 25, 2012 Order to Show Cause for the joinder of Defendants JL4 Web

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Solutions/Jayson Yanuaria (collectively, “TweetAttacks”), Skootle Corp./James Kester

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(collectively, “TweetAdder”), James Lucero (“Lucero”), and Garland E. Harris (“Harris”) (all

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together, “Defendants”)1 (Dkt. 45).

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As set forth in Twitter’s Complaint, unscrupulous mass marketers have attempted to

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flood the Twitter service with unsolicited messages (“spam”).

Their wrongdoing often is

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enabled by software (“spamware”), deliberately designed and advertised to induce breaches of

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Twitter’s Terms of Service, which automates the process of sending “Tweets” on Plaintiff’s

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service. Twitter has been forced to incur massive expenses to combat these attackers, all of

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whom violate its Terms of Service, denigrate the experience of its users, and cost it goodwill.

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Twitter brought several of the worst offenders together as Defendants in a single suit

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which involves the same background facts, the same contract terms, virtually identical conduct,

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and the same categories of harm to Twitter. In light of this shared fact background, as well as

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the common legal issues in play, joinder of the seven original Defendants was proper under Rule

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20 of the Federal Rules of Civil Procedure.

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As some Defendants have either voluntarily settled or ceased their misconduct and

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attempted to hide from Twitter, this lawsuit has narrowed. At this point, the TweetAdder

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Defendants appear to be the only Defendants who are openly continuing their unlawful conduct.

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For these reasons, and while Twitter believes that the original Defendants were all properly

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joined at the outset, the question of joinder has become – or will soon become – moot.

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Accordingly, and for reasons explained herein, the Court’s sua sponte order should be

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discharged.

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//

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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

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CASE NO: 3:12-CV-1721-SI

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ARGUMENT
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Defendants Were Properly Joined Under Rule 20.

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a.

Legal Standard

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Rule 20 of the Federal Rules of Civil Procedure allows the permissive joinder of

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defendants in one action if “(A) any right to relief is asserted against them jointly, severally, or in

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the alternative with respect to or arising out of the same transaction, occurrence, or series of

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transactions or occurrences; and (B) any question of law or fact common to all defendants will

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arise in the action.”

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convenience and to expedite the final determination of disputes, thereby preventing multiple

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lawsuits.” League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th

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Cir. 1977) (citations omitted). “‘Under the rules, the impulse is toward entertaining the broadest

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possible scope of action consistent with fairness to the parties; joinder of claims, parties and

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remedies is strongly encouraged.’” Id. (quoting United Mine Workers of Am. v. Gibbs, 383 U.S.

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715, 724 (1966)).

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discretion of the district court.” Wynn v. Nat’l Broad. Co., Inc., 234 F. Supp. 2d 1067, 1078

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(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

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b.

Analysis

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The “same transaction or occurrence” requirement of Rule 20(a)(1)(A) employs a

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“flexible” test requiring that claims asserted against joined parties be “logically related.”

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OpenMind Solutions, Inc. v. Does 1-39, No. C 11-3311 MEJ, 2011 WL 4715200, at *7 (N.D.

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Cal. Oct. 7, 2011) (quoting Disparte v. Corporate Exec. Bd., 223 F.R.D. 7, 10 (D.D.C. 2004));

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Call of the Wild Movie, 770 F. Supp. 2d at 342. There is a logical relationship between the

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claims alleged against the Defendants in the Complaint. They fraudulently agreed to the Twitter

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Terms of Service (“TOS”) when creating user accounts, then breached the “Spam and Abuse”

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provisions thereof through their deceptive activities, which caused numerous users’

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dissatisfaction with Twitter and imposed costly burdens on Twitter. (Compl. ¶¶ 26-31, 61, 72-

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73, 78). Defendants’ actions caused Plaintiff the same types of injuries, including (1) loss of

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goodwill; (2) loss of existing and prospective Twitter users; and (3) substantial expenditures on
PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

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CASE NO: 3:12-CV-1721-SI

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technical anti-spam measures, server resources, and Trust & Safety team personnel, who have

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invested a great deal of time and effort fighting Defendants’ wrongdoing. (Compl. ¶¶ 25, 74).

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Such a “degree of factual commonality underlying the claims” makes permissive joinder

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appropriate, Coughlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997), particularly in light of the

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liberal policy of “entertaining the broadest possible scope of action.” Gibbs, 383 U.S. at 724.

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Therefore, Twitter’s joinder of the Defendants was appropriate under Rule 20(a)(2)(A).

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Next, under Rule 20(a)(2)(B), “some question of law or fact common to all parties must

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arise in the action.” Desert Empire Bank, 623 F.2d at 1375 (citation omitted). The Complaint

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asserts three causes of action against all Defendants. (Compl. ¶¶ 58-80). Those claims entail the

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same legal issues, such as, for example, the interpretation of the Twitter TOS and Twitter’s

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reasonable reliance on the Defendants’ agreement to the TOS.

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Defendants likewise share a host of fact issues, such as how the Twitter service and API operate,

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the Twitter Trust & Safety team’s anti-spam efforts, and the harm the Defendants have caused.

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Further, the Complaint requests common elements of injunctive relief against all the Defendants.

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(Compl. at 18-20). While it is possible that a Defendant might present a slightly different

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defense to Twitter’s claims, “that does not defeat, at this stage of the proceedings, the

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commonality in facts and legal claims that support joinder under Rule 20(a)(2)(B).” Call of the

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Wild Movie, 770 F. Supp. 2d at 343; see also MCGIP, LLC v. Does 1-18, No. C-11-1495 EMC,

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2011 WL 2181620, at *1 (N.D. Cal. June 2, 2011) (citation omitted) (same).

The claims against the

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Because joinder is permissible under Rule 20, the Court must next consider whether

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joinder “would prejudice any party or result in needless delay” in resolving the case, Call of the

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Wild Movie, 770 F. Supp. 2d at 342, and would comport with notions of fundamental fairness.

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Desert Empire Bank, 623 F.2d at 1375. Permitting joinder in the instant case is fair and

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promotes convenience, administrative efficiency, and judicial economy. Joinder will lead to a

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more expedient resolution and prevents further crowding of the Court’s docket, whereas the

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existence of multiple cases would merely delay all of them and result in unnecessary expenses

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and duplicative discovery, thereby prejudicing Plaintiff. See Call of the Wild Movie, 770 F.

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Supp. 2d at 344 (forcing plaintiffs to file separate lawsuits, incur separate fees, and pursue
PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

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CASE NO: 3:12-CV-1721-SI

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separate discovery would not “secure a just, speedy, and inexpensive determination of the

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action” (internal quotation omitted)). The instant case has already been narrowed considerably,

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so case management will not be complex. See Hard Drive Prods., Inc. v. Does 1-188, 809 F.

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Supp. 2d 1150, 1164 (N.D. Cal. 2011) (ordering severance where joinder of nearly 200

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defendants “would result in a logistically unmanageable case” (citation omitted)). Furthermore,

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no prejudice will result to the Defendants from being joined in a single action. While, formally,

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five Defendants remain, in effect there are three.

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respective principals and business entities for TweetAttacks and TweetAdder, as well as the

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similarity of Plaintiff’s claims against both, eliminates the potential that defending the case will

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be prejudicial with regard to such considerations as of number of witnesses or discoverable

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documents.

The unanimity of interest between the

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In sum, the Defendants were properly joined in the Complaint because Rule 20’s

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requirements are met and joinder will not prejudice any party or delay resolution, whereas

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severance would cause needless delay and would prejudice Plaintiff.

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II.

The Current Narrowing of the Case Renders the Joinder Issue Irrelevant.

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As noted, Defendants Clark and Lucero have already been dismissed from the case.

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(Dkt. 43, 46). Defendants TweetAdder, TweetAttacks, and Harris remain. As to TweetAttacks,

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its principals appear to have shuttered their spamware service and cancelled the email accounts

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they used to communicate with customers, and they are attempting to dodge Twitter’s efforts to

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serve them in the Philippines (which is not a Hague Convention signatory). Twitter therefore

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expects to dismiss them without prejudice in the coming days.

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Separately, Plaintiff is in the process of discussing resolution with Defendant Harris in
confidential settlement communications.

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As a result, it is likely that the only remaining Defendants will soon be the two

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TweetAdder Defendants (Skootle and Kester), because TweetAdder has chosen to persist in its

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wrongful conduct despite the lawsuit. The joinder of Skootle and Kester is not in question, in

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light of the Court’s order noting that Plaintiff has alleged a connection between the two. (Dkt.

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45 at 2). Therefore, while permissive joinder of all of the Defendants was proper from the
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CASE NO: 3:12-CV-1721-SI

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beginning, the joinder question likely will soon be moot as only the TweetAdder Defendants will

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remain in this case. And even if Harris were to remain in the case, the common facts and legal

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issues are sufficient for continued joinder under Rule 20.

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CONCLUSION

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Plaintiff properly joined all Defendants under Rule 20 from the outset. For all practical

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purposes, the question will soon be moot as Plaintiff expects that only the TweetAdder

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Defendants will remain in the case for purposes of a Rule 26(f) conference.

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Dated: July 2, 2012

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Respectfully submitted,

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/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:
[phone]
Facsimile:
[phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

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Attorneys for Plaintiff Twitter, Inc.

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PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE

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CASE NO: 3:12-CV-1721-SI