Facebook, Inc. v. Various, Inc. et al

Filing 18

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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1 2 3 4 5 6 7 8 9 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. 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 14 15 16 17 18 19 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 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 1. FACEBOOK’S MOTION TO SHORTEN TIME CASE NO. 4:11-CV-01805-SBA 1 NOTICE OF MOTION AND MOTION 2 Please take notice that on ________ at ___ p.m. or as soon thereafter as the matter may be 3 heard in Courtroom 1 located at Fourth Floor, 1301 Clay Street, Oakland, California, before 4 Honorable Saundra Brown Armstrong, Plaintiff Facebook, Inc. (“Facebook”), hereby moves this 5 Court for an order shortening time for this Court to hear its Motion for Expedited Discovery 6 pursuant to Civil Local Rule 6-3. This motion is supported by the following Memorandum of 7 Points and Authorities, the Declaration of Jeffrey Norberg in Support of Facebook’s Motion for 8 Expedited Discovery (“Norberg Decl.”), and Facebook’s Motion for Expedited Discovery, filed 9 concurrently herewith. 10 MEMORANDUM OF POINTS AND AUTHORITIES 11 I. BACKGROUND 12 Facebook filed this suit to enjoin defendants’ use of the brand FACE BOOK OF SEX for 13 an online “adult” networking service and affiliate program under the brand FACE BOOK OF 14 SEX. Defendants’ mark, websites and affiliate program are a deliberate and blatant attempt to 15 imitate and trade upon the success of the famous Facebook brand, and infringe the FACEBOOK 16 trademark. Association with defendants’ pornographic websites tarnishes Facebook’s reputation 17 and abuses the trust of Facebook users. Defendants operate a widespread infringing affiliate 18 network that pays third party website operators (the “Doe Defendants”) to direct traffic to 19 defendants’ adult networking sites (including facebookofsex.com), encouraging these sites to use 20 materials that dilute and infringe the FACEBOOK Marks. 21 Facebook filed its Complaint on April 13, 2011. The Complaint was served on Defendants 22 Various, Inc., Traffic Cat, Inc. and FriendFinder Networks, Inc. on April 14, 2011, and on 23 Defendant GMCI Internet Operations, Inc. on April 18, 2011. (D.I. 10, 11, 12, and 15). The 24 Court has set an Initial Case Management Conference for July 21, 2011 (D.I.9) and Facebook has 25 agreed to extend the time for Named Defendants to respond to the complaint until May 23, 2011. 26 Norberg Decl. ¶19. Facebook met and conferred with counsel for defendants before filing this 27 motion, but the defendants have refused to stipulate to this request. Norberg Decl. ¶ 17. 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 2. FACEBOOK’S MOTION TO SHORTEN TIME CASE NO. 4:11-CV-01805-SBA 1 2 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 3 Facebook seeks expedited discovery to identify those Doe Defendant third party website 4 operators that are part of Defendants’ affiliate network, and to build a more complete record in 5 support of an anticipated motion for preliminary injunction. Facebook’s need for this information 6 is urgent: Facebook cannot serve the Doe Defendants with the Complaint or move for an 7 injunction against the Doe Defendants until it learns their true identities. Norberg Decl. ¶15. 8 Pursuant to Local Rule 7-2(a) motions must be noticed no fewer than 35 days from the filing date. 9 Under the usual timetable for noticed motions, Facebook’s motion could not be noticed for 10 hearing until June 21, 2011. However, pursuant to the Court’s current Calendar, the earliest date 11 on which Facebook’s motion could be heard is October 11, 2011.1 12 Facebook will be prejudiced if an order shortening time to hear its motion for expedited 13 discovery is not granted because Facebook cannot effectively move for a comprehensive 14 preliminary injunction until all parties, including the Doe Defendants, are identified and served in 15 this Action. 16 infringing conduct as they form part of the network that promotes and advertises Named 17 Defendants’ websites. Any further delay in identifying these defendants delays Facebook’s 18 comprehensive preliminary injunctive relief, thereby increasing the ongoing irreparable harm 19 being caused by the defendants’ infringing activities. The Doe Defendants are responsible for a significant amount of the alleged 20 Moreover, the requested shortening of time will only help to advance the schedule for this 21 case because, if the motion for expedited discovery is granted, Facebook will be able to more 22 quickly identify and serve the Doe Defendants, thereby allowing the entire case to proceed with 23 all necessary parties present. 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 1 As indicated by Hon. Brown Armstrong’s Case Calendar Scheduling Notes found at: http://www.cand.uscourts.gov/CEO/cfd.aspx?7128. 3. FACEBOOK’S MOTION TO SHORTEN TIME CASE NO. 4:11-CV-01805-SBA 1 III. 2 Facebook requests that the Court adopt the following briefing and hearing schedule for the 3 PROPOSED SCHEDULE ON MOTION FOR EXPEDITED DISCOVERY motion for expedited discovery: 4 Defendants to file opposition: May 18, 2011 5 Facebook to file reply: May 20, 2011 6 Hearing: May 24, 2011 at 1:00 p.m. or as soon as possible thereafter 7 8 9 10 IV. CONCLUSION For the foregoing reasons, Facebook respectfully requests that the Court grants its Motion for an Order Shortening Time. 11 12 13 14 Dated: May 12, 2011 COOLEY LLP MICHAEL G. RHODES ANNE H. PECK JEFFREY T. NORBERG GAVIN L. CHARLSTON 15 16 17 18 /s/ Jeffrey T. Norberg Jeffrey T. Norberg Attorneys for Plaintiff FACEBOOK, INC. 19 20 21 22 23 24 25 26 27 28 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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