Be In, Inc. v. Google Inc. et al

Filing 34

MOTION to Continue Hearing on 15 Defendant's Motion to Dismiss Plaintiff's Third and Fourth Causes of Action and Initial Case Management Conference filed by Be In, Inc.. (Attachments: # 1 Proposed Order with Stipulation, Granting Unopposed Administrative Motion of Be In to Continue Hearing on Defendant's Motion to Dismiss Plaintiff's Third and Fourth Causes of Action and Initial Case Management Conference)(KatieLynn, Townsend) (Filed on 3/25/2013) Modified on 3/25/2013 linking entry to document #15 (dhmS, COURT STAFF).

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GIBSON,DUNN & CRUTCHER LLP
S. ASHLIE BERINGER,SBN 263977
[e-mail]
1881 Page Mill Road
Palo Alto, California 94304
Telephone: [phone]
Facsimile: 650.849.5333
WAYNE BARSKY,SBN 116732
[e-mail]
KATIELYNN TOWNSEND,SBN 254321
[e-mail]
2029 Century Park East
Los Angeles, California 90067
Telephone: [phone]
Facsimile: 310.551.8741

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Attorneys for Plaintiff
BE IN,INC., a New York corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
CASE NO.5:12-CV-03373-LHK

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BE IN,INC.,a New York corporation,
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Plaintiff,
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v.
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GOGGLE,INC.,a California corporation;
RICHARD ROBINSON,an individual; and
DOES 1 through 3,inclusive,

PLAINTIFF BE IN,INC.'S UNOPPOSED
ADMINISTRATIVE MOTION TO
CONTINUE HEARING ON
DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S THIRD AND FOURTH
CAUSES OF ACTION AND INITIAL
CASE MANAGEMENT CONFERENCE

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Defendants.
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Gibson, Dunn &
Crutcher LLP

PLAINTIFF BE IN,INC.'S UNOPPOSED ADMINISTRATIVE MOTION TO.CONTINUE HEARING ON DEFENDANT'S
MOTION TO DISMISS PLAINTIFF'S THIRD AND FOURTH CAUSES OF ACTION AND INITIAL CASE MANAGEMENT
CONFERENCE
Case No. 5:12-CV-03373-LHK

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I. Unopposed Request to Continue Hearing on Defendant's Motion to Dismiss Plaintiffs
Third and Fourth Causes of Action and Initial Case Management Conference
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On September 4,2012, Defendant Google,Inc. "Google"")filed a Motion to Dismiss the

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(
third and fourth causes of action ofPlaintiff Be In, Inc. "Be In")pursuant to Rule 12(b)(6) ofthe
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Federal Rules of Civil Procedure. On December 13, 2012,the parties filed a joint stipulation
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requesting that the hearing on Google's Motion to Dismiss and the initial Case Management
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Conference "Initial CMC be continued from January 3, 2013 to February 28, 2013. By order dated
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")
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December 17, 2012,this Court granted, in part, that request, continuing the Initial CMC and hearing
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on Google's Motion to Dismiss to April 18, 2013. On February 19, 2013, Clifford Chance US LLP
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and Davis Wright Tremaine LLP sought to withdraw as counsel ofrecord for Plaintiff in the above10
captioned action and, by order ofthis Court dated March 7, 2013, Gibson Dunn and Crutcher LLP
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")
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"Gibson Dunn was substituted for withdrawing counsel.
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Since being retained as counsel for Be In, Gibson Dunn has worked diligently to review the
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pleadings and other relevant documents in this matter, and to evaluate the underlying legal and
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factual issues relating to this dispute. Based on this preliminary evaluation, Be In anticipates that it
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will be seeking to amend its complaint, either by stipulation or, if necessary, by seeking leave from
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this Court pursuant to Rule 15(a)(2) ofthe Federal Rules of Civil Procedure. Be In further anticipates
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that its proposed amended complaint will remove one or more causes of action in the Amended
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Complaint and will assert new causes of action. Be In also contemplates that it may withdraw claims
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against certain current defendants and/or name additional entities as defendants. Counsel for Be In
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has advised Google's counsel that they (i) will provide Defendants with a draft ofthe proposed
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Second Amended Complaint on or before April 22,2013, and (ii) intend to file a stipulation or
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noticed motion for leave to file a Second Amended Complaint with this Court by no later than April
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30, 2013. Google's counsel has advised Be In's counsel that Defendants are amenable to that
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schedule. Google, however, reserves all rights with respect to the as yet unidentified proposed
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amendments, including its right to refile its Motion to Dismiss or a revised motion to dismiss.
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Given these circumstances, Be In respectfully requests that the hearing on Google's Motion to
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Dismiss that is currently scheduled for April 18, 2013 be adjourned. In addition, Be In respectfully
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Gilson, Dunn &
Crutcher ~~P

PLAINTIFF BE IN,INC.'S UNOPPOSED ADMINISTRATIVE MOTION TO CONTINUE HEARING ON DEFENDANT'S
MOTION TO DISMISS PLAINTIFF'S THIRD AND FOURTH CAUSES OF ACTION AND INITIAL CASE MANAGEMENT
CONFERENCE
CnsE No.5:i2-CV-03373-LHK

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requests that the initial Case Management Conference be continued to a date after June 6,2013,to

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permit the parties an opportunity to review and evaluate the claims and allegations contained in Be

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In's proposed amended pleading before completing their obligations under Rule 26 ofthe Federal

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Rules of Civil Procedure and the Northern District of California Civil Local Rules. Be In believes

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that the parties will be able to meet and confer, provide initial disclosures, and prepare a Case

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Management Statement under Rule 26 ofthe Federal Rules of Civil Procedure and the Northern

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District of California Civil Local Rules by no later than May 30, 2013.

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Be In is not seeking to delay this matter; on the contrary, Be In is eager to obtain a
determination ofthe merits of its claims. However, Be In respectfully submits that it furthers the goal

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of Rule 1 ofthe Federal Rules of Civil Procedureto secure the just, speedy, and inexpensive

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determination of all civil actions—to allow Be In an opportunity to reform its pleading at an early

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stage, prior to any hearing on Google's Motion to Dismiss—which may, potentially, be rendered

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moot in whole or in party by Be In's proposed Second Amended Complaint—and prior to initial

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disclosures and the commencement of discovery.

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As is set forth in the accompanying Stipulation, counsel for Defendants do not oppose the
continuation of case deadlines sought in this motion.

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In light ofthe foregoing, Be In respectfully seeks an order adjourning the hearing on Google's

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Motion to Dismiss and continuing the Initial CMC to a date convenient for the Court that is no earlier

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than June 6, 2013.

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Dated: March 22,2013

Respectfully submitted,
GIBSON,DUNN & CRUTCHER LLP

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By: /s/
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KatieLynn Townsend
Attorney for Plaintiff
BE IN,INC.

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Gibson, Dunn &
CrutcherLLP

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PLAINTIFF BE IN, INC.'S UNOPPOSED ADMINISTRATIVE MOTION TO CONTINUE HEARING ON DEFENDANT'S
MOTION TO DISMISS PLAINTIFF'S THIRD AND FOURTH CAUSES OF ACTION AND INITIAL CASE MANAGEMENT
.CONFERENCE
Case No. 5:12-CV-03373-LHK