Facebook, Inc. v. Various, Inc. et al
Filing
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MOTION to Shorten Time re 16 Motion for Expedited Discovery filed by Facebook, Inc.. (Attachments: # 1 Proposed Order re Motion to Shorten Time for Hearing Motion for Expedited Discovery)(Norberg, Jeffrey) (Filed on 5/12/2011) Modified on 5/13/2011 (jlm, COURT STAFF).
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COOLEY LLP
MICHAEL G. RHODES (SBN 116127) (rhodesmg@cooley.com)
GAVIN L. CHARLSTON (SBN 253899) (gcharlston@cooley.com)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
(415) 693-2000
Facsimile:
(415) 693-2222
ANNE H. PECK (SBN 124790) (peckah@cooley.com)
JEFFREY T. NORBERG (SBN 215087) (jnorberg@cooley.com)
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone:
(650) 843-5000
Facsimile:
(650) 849-7400
Attorneys for Plaintiff
FACEBOOK, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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FACEBOOK, INC.,
Plaintiff,
v.
VARIOUS, INC.; GMCI INTERNET
OPERATIONS, INC.; TRAFFIC CAT, INC.;
FRIENDFINDER NETWORKS INC.; and
DOES 1-100,
Defendants.
Case No. 4:11-cv-01805-SBA
FACEBOOK’S MOTION FOR AN
ORDER TO SHORTEN TIME FOR
HEARING MOTION FOR EXPEDITED
DISCOVERY
Date:
Time:
Courtroom:
Judge:
TBD
TBD
1, 4th Floor
Hon. Saundra Brown Armstrong
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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
1.
FACEBOOK’S MOTION TO SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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NOTICE OF MOTION AND MOTION
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Please take notice that on ________ at ___ p.m. or as soon thereafter as the matter may be
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heard in Courtroom 1 located at Fourth Floor, 1301 Clay Street, Oakland, California, before
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Honorable Saundra Brown Armstrong, Plaintiff Facebook, Inc. (“Facebook”), hereby moves this
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Court for an order shortening time for this Court to hear its Motion for Expedited Discovery
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pursuant to Civil Local Rule 6-3. This motion is supported by the following Memorandum of
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Points and Authorities, the Declaration of Jeffrey Norberg in Support of Facebook’s Motion for
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Expedited Discovery (“Norberg Decl.”), and Facebook’s Motion for Expedited Discovery, filed
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concurrently herewith.
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MEMORANDUM OF POINTS AND AUTHORITIES
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I.
BACKGROUND
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Facebook filed this suit to enjoin defendants’ use of the brand FACE BOOK OF SEX for
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an online “adult” networking service and affiliate program under the brand FACE BOOK OF
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SEX. Defendants’ mark, websites and affiliate program are a deliberate and blatant attempt to
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imitate and trade upon the success of the famous Facebook brand, and infringe the FACEBOOK
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trademark. Association with defendants’ pornographic websites tarnishes Facebook’s reputation
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and abuses the trust of Facebook users. Defendants operate a widespread infringing affiliate
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network that pays third party website operators (the “Doe Defendants”) to direct traffic to
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defendants’ adult networking sites (including facebookofsex.com), encouraging these sites to use
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materials that dilute and infringe the FACEBOOK Marks.
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Facebook filed its Complaint on April 13, 2011. The Complaint was served on Defendants
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Various, Inc., Traffic Cat, Inc. and FriendFinder Networks, Inc. on April 14, 2011, and on
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Defendant GMCI Internet Operations, Inc. on April 18, 2011. (D.I. 10, 11, 12, and 15). The
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Court has set an Initial Case Management Conference for July 21, 2011 (D.I.9) and Facebook has
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agreed to extend the time for Named Defendants to respond to the complaint until May 23, 2011.
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Norberg Decl. ¶19. Facebook met and conferred with counsel for defendants before filing this
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motion, but the defendants have refused to stipulate to this request. Norberg Decl. ¶ 17.
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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
2.
FACEBOOK’S MOTION TO SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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II.
FACEBOOK WILL BE PREJUDICED AND IS AT RISK OF SUBSTANTIAL
HARM IF AN ORDER SHORTENING TIME TO HEAR ITS MOTION FOR EXPEDITED
DISCOVERY IS NOT GRANTED
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Facebook seeks expedited discovery to identify those Doe Defendant third party website
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operators that are part of Defendants’ affiliate network, and to build a more complete record in
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support of an anticipated motion for preliminary injunction. Facebook’s need for this information
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is urgent: Facebook cannot serve the Doe Defendants with the Complaint or move for an
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injunction against the Doe Defendants until it learns their true identities. Norberg Decl. ¶15.
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Pursuant to Local Rule 7-2(a) motions must be noticed no fewer than 35 days from the filing date.
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Under the usual timetable for noticed motions, Facebook’s motion could not be noticed for
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hearing until June 21, 2011. However, pursuant to the Court’s current Calendar, the earliest date
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on which Facebook’s motion could be heard is October 11, 2011.1
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Facebook will be prejudiced if an order shortening time to hear its motion for expedited
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discovery is not granted because Facebook cannot effectively move for a comprehensive
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preliminary injunction until all parties, including the Doe Defendants, are identified and served in
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this Action.
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infringing conduct as they form part of the network that promotes and advertises Named
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Defendants’ websites. Any further delay in identifying these defendants delays Facebook’s
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comprehensive preliminary injunctive relief, thereby increasing the ongoing irreparable harm
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being caused by the defendants’ infringing activities.
The Doe Defendants are responsible for a significant amount of the alleged
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Moreover, the requested shortening of time will only help to advance the schedule for this
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case because, if the motion for expedited discovery is granted, Facebook will be able to more
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quickly identify and serve the Doe Defendants, thereby allowing the entire case to proceed with
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all necessary parties present.
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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
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As indicated by Hon. Brown Armstrong’s Case Calendar Scheduling Notes found at:
http://www.cand.uscourts.gov/CEO/cfd.aspx?7128.
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FACEBOOK’S MOTION TO SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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III.
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Facebook requests that the Court adopt the following briefing and hearing schedule for the
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PROPOSED SCHEDULE ON MOTION FOR EXPEDITED DISCOVERY
motion for expedited discovery:
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Defendants to file opposition:
May 18, 2011
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Facebook to file reply:
May 20, 2011
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Hearing:
May 24, 2011 at 1:00 p.m. or as soon as
possible thereafter
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IV.
CONCLUSION
For the foregoing reasons, Facebook respectfully requests that the Court grants its Motion
for an Order Shortening Time.
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Dated: May 12, 2011
COOLEY LLP
MICHAEL G. RHODES
ANNE H. PECK
JEFFREY T. NORBERG
GAVIN L. CHARLSTON
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/s/ Jeffrey T. Norberg
Jeffrey T. Norberg
Attorneys for Plaintiff
FACEBOOK, INC.
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COOLEY LLP
ATTORNEYS AT LAW
PALO ALTO
4.
FACEBOOK’S MOTION TO SHORTEN TIME
CASE NO. 4:11-CV-01805-SBA
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