Streetspace, Inc v. Google, Inc. et al

Filing 32

RESPONSE in Opposition re 21 MOTION to Dismiss Rule 12(B)(6) Motion to Dismiss MOTION for a More Definite Statement MOTION to Dismiss Rule 12(B)(6) Motion to Dismiss filed by Streetspace, Inc. (Fazio, James) (kaj).

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DOUGLAS E. OLSON (CSB NO. 38649)
[e-mail]
JAMES V. FAZIO, III (CSB NO. 183353)
[e-mail]
TREVOR Q. CODDINGTON, PH.D. (CSB NO. 243042)
[e-mail]
SAN DIEGO IP LAW GROUP LLP
12526 High Bluff Drive, Suite 300
San Diego, CA 92130
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
STREETSPACE, INC.

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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STREETSPACE, INC., a Delaware
corporation,
Plaintiff,

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vs.
GOOGLE INC., a Delaware corporation;
ADMOB, INC., a Delaware corporation;
APPLE INC., a California corporation;
QUATTRO WIRELESS, INC., a Delaware
corporation; NOKIA CORPORATION, a
foreign corporation; NOKIA INC., a
Delaware corporation; NAVTEQ
CORPORATION, a Delaware corporation;
MILLENNIAL MEDIA, INC., a Delaware
corporation; JUMPTAP, INC., a Delaware
corporation; and DOES 1 through 20,
inclusive,

CASE NO. 10-CV-1747-LAB-AJB
MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO
DISMISS OR, IN THE
ALTERNATIVE, FOR A MORE
DEFINITE STATEMENT
Date:
Time:
Judge:
Ctrm:

March 14, 2011
11:15 a.m.
Hon. Larry A. Burns
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Defendants.
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OPPOSITION TO MOTION TO DISMISS
CASE NO. 10-CV-1747-LAB-AJB

Plaintiff Streetspace, Inc. (“Streetspace”) respectfully submits the following memorandum

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of points and authorities in opposition to the motion by Defendants Google, Inc., Admob, Inc.,

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Apple, Inc., Quattro Wireless, Inc., Nokia Corporation, Nokia, Inc., Navteq Corporation,

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Millennial Media, Inc. and Jumptap, Inc. (collectively, “Defendants”) to dismiss this case under

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Fed. R. Civ. P. 12(b)(6) or, in the alternative, for a more definite statement.

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I.

ARGUMENT
On February 25, 2011, Streetspace filed and served an amended complaint (the “First

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Amended Complaint”) as a matter of right, so Defendants’ motion to dismiss the original

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complaint should be denied as moot. Pursuant to Fed. R. Civ. P. 15(a)(1), each party has the right

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to amend its pleadings “as a matter of course” without leave of court at any time before a

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responsive pleading is served. Fed. R. Civ. P. 15(a)(1). See also Allwaste, Inc. v. Hecht, 65 F.3d

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1523, 1530 (9th Cir. 1995). Motions under Fed. R. Civ. P. 12 are not “responsive pleadings” for

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purposes of Rule 15. Accordingly, the filing of Defendants’ motion to dismiss under Fed. R. Civ.

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P. 12(b)(6) or, in the alternative, for a more definite statement under Fed. R. Civ. P. 12(e), does

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not bar Streetspace from amending its complaint as a matter of right. Crum v. Circus Circus

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Enterprises, 231 F.3d 1129, 1130 n.3 (9th Cir. 2000); McDonald v. Hall, 579 F.2d 120, 121 (1st

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Cir. 1978).

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Streetspace’s amended complaint supersedes its original complaint filed August 23, 2010

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and renders it of no legal effect (aside from the commencement date of this action, notice of the

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asserted patent, and any other timing issues). Santana v. State of Calif. Dept. of Corrections and

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Rehabilitation, 2010 WL 4176364, at *7 (N.D. Cal. Oct. 19, 2010) (citing Loux v. Thay, 375 F.2d

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55, 57 (9th Cir. 1967)). See also Migliaccio v. Midland Nat. Life Ins. Co., 2007 WL 316873, at *3

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(C.D. Cal. Jan. 30, 2007). Defendants’ motion to dismiss the original complaint or, in the

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alternative, for a more definite statement, should therefore be denied as moot. Harvey v. City of

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South Lake Tahoe, 2010 WL 3749061, at *2 (E.D. Cal. Sep. 23, 2010) (citing Ramirez s. Silgan

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Containers, 2007 WL 1241829, at *6 (E.D. Cal. Apr. 26, 2007)).

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Nonetheless, Defendants incorrectly conclude that Twombly and Iqbal apply to the
pleading requirements for direct patent infringement – they do not. The Federal Circuit has
-1OPPOSITION TO MOTION TO DISMISS
CASE NO. 10-CV-1747-LAB-AJB

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addressed the adequacy of a complaint for direct, but not indirect, patent infringement, holding

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that even conclusory allegations of direct patent infringement were sufficient to survive a motion

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to dismiss. McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007). The McZeal

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court was guided by then Form 16 of the Federal Rules of Civil Procedure (now Form 18), which

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“requires essentially nothing more than conclusory statements” to allege direct patent

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infringement. Technology Licensing Corporation v. Technicolor USA, Inc., 2010 WL 4070208 at

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*2 (E.D. Cal. Oct. 18, 2010) (quoting Elan Microelecs. Corp. v. Apple, Inc., 2009 WL 2972374 at

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*2 (N.D. Cal. Sept. 14, 2009). Although Streetspace’s First Amended Complaint goes way

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beyond conclusory allegations, any renewed motion to dismiss as it relates to the sufficiency of

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direct patent infringement pleadings would be unfounded.
The Elan case is informative as the court there addressed the pleading requirements for

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indirect patent infringement claims, which were raised by counter-claimant Apple, Inc. (the very

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same Apple named as a defendant in this action). There, the court found that Apple’s bare

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assertion, made “on information and belief that Elan ‘has been and is currently directly and/or

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indirectly infringing, in violation of 35 U.S.C. § 271’ the specified patents ‘through its design,

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marketing, manufacture and/or sale of touch sensitive input devices or touchpads, including but

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not limited to the Smart-Pad’” failed to allege sufficient facts to “comply with Rule 8, under the

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standards enunciated in Twombly and Iqbal.” Elan, 2009 WL 2972374 at *2, et seq. Accordingly,

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the Elan court granted Elan’s motion to dismiss, with leave to amend. See id. Apple submitted

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(roughly three weeks later) a Second Amended Answer setting forth additional indirect

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infringement allegations, which the Elan court found sufficient to entitle Apple to relief for

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indirect patent infringement. See Elan Microelecs. Corp. v. Apple, Inc., 2009 WL 3253901 (N.D.

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Cal. Oct. 5, 2009). In its First Amended Complaint, Streetspace has further specified its indirect

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infringement allegations against each of the nine defendants named in this case based on the

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template provided by defendant Apple in its Second Amended Answer submitted in Elan – albeit

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completely different sets of underlying facts and even more detail. See id. Thus, any renewed

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motion to dismiss Streetspace’s claims of indirect patent infringement as provided in its First

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Amended Complaint would be unfounded.
-2OPPOSITION TO MOTION TO DISMISS
CASE NO. 10-CV-1747-LAB-AJB

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II.

CONCLUSION
For these reasons, Defendants’ motion to dismiss or, in the alternative, for a more definite

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statement, should be denied as moot.

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Dated: February 28, 2011

SAN DIEGO IP LAW GROUP LLP

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By:/s/James V. Fazio, III
DOUGLAS E. OLSON
JAMES V. FAZIO, III
TREVOR Q. CODDINGTON, PH.D.
Attorneys for Plaintiff
STREETSPACE, INC.

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-3OPPOSITION TO MOTION TO DISMISS
CASE NO. 10-CV-1747-LAB-AJB

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CERTIFICATE OF SERVICE
I, the undersigned, certify and declare that I am over the age of 18 years old, employed in
the County of San Diego, State of California, and am not a party to the above-entitled action.
On February 28, 2011, I filed a copy of the following document:
MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT

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by electronically filing with the Clerk of the Court using the CM/ECF system, which will send
notification of such filing to the following email addresses:
John S. Kyle
Cooley LLP
Email: [e-mail]
Frank V. Pietrantonio
Cooley LLP
Email: [e-mail]
Christopher C. Campbell
Cooley LLP
Email: [e-mail]
George A. Riley
O’Melveny & Myers LLP
Email: [e-mail]
Luann L. Simmons
O’Melveny & Myers LLP
Email: [e-mail]
Anne E. Huffsmith
O’Melveny & Myers LLP
Email: [e-mail]
Shawn E. McDonald
Foley & Lardner LLP
Email: [e-mail]
Matthew B. Lowrie
Foley & Lardner LLP
Email: [e-mail]
Justin E. Gray
Foley & Lardner LLP
Email: [e-mail]
Kurt M. Kjelland
Goodwin Procter LLP
Email: [e-mail]

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-1CERTIFICATE OF SERVICE
CASE NO. 10-CV-1747-LAB-AJB

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David Heskel Ben-Meir
Alston & Bird LLP
[e-mail]
I hereby certify and declare, under the penalty of perjury, under the laws of the United
States and of the State of California, that the foregoing is true and correct.
Executed on this 28th day of February 2011, at San Diego, California.

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By: /s/ James V. Fazio, III

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James V. Fazio, III

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-2CERTIFICATE OF SERVICE
CASE NO. 10-CV-1747-LAB-AJB