Twitter, Inc. v. Skootle Corp. et al

Filing 73

RESPONSE (re 68 MOTION for Leave to File Plaintiff's Notice of Motion and Motion for Leave to Amend Complaint ) filed byJames Kester, Skootle Corp.. (Norris, Nicole) (Filed on 11/16/2012)

1
2
3
4
5
6
7
8
9

COLT / WALLERSTEIN LLP
Doug Colt (Bar No. 210915)
[e-mail]
Thomas E. Wallerstein (Bar No. 232086)
[e-mail]
Nicole M. Norris (Bar No. 222785)
[e-mail]
Shorebreeze II
255 Shoreline Drive, Suite 540
Redwood Shores, California 94065
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants Skootle Corp.
and James Kester

10

UNITED STATE DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13
14
15
16
17
18
19
20
21

TWITTER, INC., a Delaware corporation,
Plaintiff,
v.
SKOOTLE CORP., a Tennessee corporation;
and JAMES KESTER, an individual,
Defendants.

CASE NO. CV 12-1721 SI
RESPONSE TO TWITTER, INC.’S
MOTION FOR LEAVE TO AMEND
COMPLAINT
Date:
Time:
Dept:
Judge:

December 14, 2012
9:00 a.m.
Ctrm. 10, 19th Floor
Hon. Susan Illston

Filing Date:
Trial Date:

April 5, 2012
None Set

22
23
24
25
26
27
28
RESPONSE TO TWITTER, INC.’S MOTION FOR LEAVE TO AMEND COMPLAINT
CASE NO. CV 12-1721 SI

RESPONSE TO TWITTER INC.’S MOTION FOR LEAVE TO AMEND

1
2

Defendants Skootle, Corp. and James Kester (collectively “Defendants”) hereby submit this

3

statement in response to Twitter, Inc.’s Motion for Leave to Amend Complaint. Defendants have no

4

objection to plaintiff’s request for leave to amend the allegations in the complaint as they relate to

5

the current Defendants. However, Defendants object to plaintiff’s attempt to add third-party Troy

6

Fales as a defendant.

7

I.

8
9

ALLEGATIONS AGAINST SKOOTLE AND MR. KESTER
On June 25, 2012 this Court issued an Order to Show Cause (see Docket No. 45) and

subsequently held that Skootle and Mr. Kester were not properly joined in one action with the

10

remaining defendants and ordered all claims and allegations not made against Skootle and/or Mr.

11

Kester severed from the litigation. (See Docket No. 54.)

12

In light of the Court’s order, plaintiff’s request for leave to amend the complaint to remove

13

any reference to or allegations against defendants other than Skootle and/or Mr. Kester is appropriate

14

and necessary. Defendants do not oppose such request.

15

On Wednesday, October 31, 2012, counsel for plaintiff for the first time sent defendants’

16

counsel a draft of the amended complaint that plaintiff now proposes. Twitter’s counsel wrote that

17

they intended to file a motion for leave to amend within the next two days. Defendants’ counsel

18

responded that Storm Sandy might prevent it from consulting with east-coast-based defendants in the

19

next twenty-four hours but that counsel would try to make contact to provide the requisite feedback.

20

Twitter then filed its motion for leave to amend on Friday, November 2, barely forty-eight hours after

21

providing counsel a copy of the proposed amendments.

22

II.

23
24
25

INCLUSION OF TROY FALES IS PREMATURE AND UNJUSTIFIED
By way of its motion for leave to amend, plaintiff also seeks to include third-party Troy Fales

as a defendant.
Defendants recognize the liberality with which Federal Rule of Civil Procedure 15(a) is

26

applied enabling a plaintiff to amend its pleadings. For this reason, defendants do not oppose

27

plaintiff’s motion for leave to amend to include Mr. Fales as a defendant.

28
-1RESPONSE TO TWITTER, INC.’S MOTION FOR LEAVE TO AMEND COMPLAINT
CASE NO. CV 12-1721 SI

1

This Court should note, however, that plaintiff has put forth no evidence Mr. Fales had any

2

role in Skootle that would subject him to personal liability for the actions of Skootle. Even if Mr.

3

Fales was an employee of Skootle, such employment would not expose him to personal liability for

4

the actions of Skootle. Moreover, plaintiff has offered no evidence of the requisite minimum contacts

5

with California that would subject Mr. Fales to personal jurisdiction in this court. These and other

6

issues may be pursued by defendants and/or Mr. Fales in a motion to dismiss should this Court grant

7

plaintiff leave to Mr. Fales as a defendant.

8
9
10
11
12
13
14

Date: November 16, 2012

Submitted By,
COLT / WALLERSTEIN LLP

By:_______________________________
Doug Colt
Thomas E. Wallerstein
Nicole M. Norris
Attorneys for Defendants Skootle Corp.
and James Kester

15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2RESPONSE TO TWITTER, INC.’S MOTION FOR LEAVE TO AMEND COMPLAINT
CASE NO. CV 12-1721 SI