Streetspace, Inc v. Google, Inc. et al
Filing
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REPLY to Response to Motion 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 Millennial Media, Inc. (Kyle, John) (lmt).
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COOLEY LLP
JOHN S. KYLE (CA 199196)
jkyle@cooley.com
4401 Eastgate Mall
San Diego, California 92121
Telephone:
(858) 550-6000
Facsimile:
(858) 550-6420
FRANK V. PIETRANTONIO (pro hac vice)
fpietrantonio@cooley.com
CHRISTOPHER C. CAMPBELL (pro hac vice)
ccampbell@cooley.com
One Freedom Square
11951 Freedom Drive
Reston, VA 20190-5656
Telephone:
(703) 456-8000
Facsimile:
(703) 456-8100
Attorneys for Defendants
MILLENNIAL MEDIA, INC.
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Additional parties and counsel listed in the signature block
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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STREETSPACE, INC.,
Plaintiff,
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v.
GOOGLE INC.; ADMOB, INC.; APPLE
INC.; QUATTRO WIRELESS, INC.; NOKIA
CORPORATION; NOKIA INC.; NAVTEQ
CORPORATION; MILLENNIAL MEDIA,
INC.; JUMPTAP, INC.; and DOES 1 through
20,
Case No. 3:10-CV-01757-LAB-AJB
DEFENDANTS’ REPLY IN SUPPORT OF
MOTION TO DISMISS OR, IN THE
ALTERNATIVE, FOR A MORE DEFINITE
STATEMENT AND MOTION TO STRIKE
AMENDED COMPLAINT
Date:
March 14, 2011
Time:
11:15 AM
Courtroom: 9, 2nd Floor
Judge:
Hon. Larry Alan Burns
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Defendants.
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COOLEY LLP
ATTORNEYS AT LAW
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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I.
INTRODUCTION
Streetspace concedes that its allegations of direct infringement against Millennial Media
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and Jumptap included in the original complaint fail to “name[] and specifically identif[y]” the
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allegedly infringing products or services. (Memorandum in Support of Motion to Dismiss, Dkt.
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No. 21-1 (“Motion to Dismiss”), at 5 (citing Bender v. LG Elecs. U.S.A., Inc., Case No. C-09-
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02114-JF, 2010 WL 889541, at *6 (N.D. Cal. Mar. 11, 2010).) The standard for pleading direct
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patent infringement set forth in the Supreme Court’s decisions in Twombly and Iqbal requires, at
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a minimum, that Streetspace specifically identify the allegedly infringing products or services.
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Streetspace’s argument that Twombly and Iqbal do not “apply to the pleading requirements for
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direct patent infringement” has been rejected by this Court and others. See, e.g., AntiCancer Inc.
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v. Xenogen Corp., 248 F.R.D. 278, 282-83 (S.D. Cal. 2007); Bender, 2010 WL 889541, at *6.
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Streetspace’s response to Defendants’ identification of the deficiencies in its indirect
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infringement claims similarly fails to save these claims. Streetspace admits that it does not have
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any factual basis to allege that Defendants knew of the patent-in-suit prior to the filing of the
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complaint and that it can allege only that “Defendants knew of the ‘969 patent since at least
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August 23, 2010 (the filing date of the original complaint).” (Response to Order to Show Cause,
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Dkt. No. 39 (“Response”), at 3). It is settled that “knowledge after filing of the present action is
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not sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint Techs.,
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Inc., v. Microsoft Corp., Civ. No. 09-628-SLR, 2010 WL 3187025, at *6 (D. Del. Aug. 12, 2010)
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(citing Mallinckrodt, Inc. v. E-Z-Em, Inc., 670 F. Supp. 2d 349, 354 n.1 (D. Del. 2009). To hold
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otherwise would allow plaintiffs to fabricate a claim of indirect patent infringement, then file an
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amended complaint—as Streetspace improperly attempted to do here—and then allege in the
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amended complaint that Defendants were on notice of the patent-in-suit at least as early as the
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date of the original complaint. Thus, by its own admissions, Streetspace has not and cannot plead
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a legally sufficient claim for indirect infringement against any Defendant.
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Streetspace argues that it should, nonetheless, be entitled to a discovery fishing expedition
because “[i]t remains to be seen whether any Defendant actually knew of the ‘969 patent . . . ,
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COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
1.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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which will be the subject of discovery.” (Resp. at 3.) But “remains to be seen” is not a
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cognizable placeholder allowing Streetspace to take discovery to ascertain whether the
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Defendants had any knowledge of the ‘969 patent prior to Streetspace’s complaint. Either
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Streetspace can plead that Defendants had knowledge of the ‘969 patent at the time it filed the
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original complaint, or it cannot. The pleading standard under Rule 8 “does not unlock the doors of
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discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 129 S. Ct.
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1937, 1950 (2009). Because Streetspace has no factual basis (Rule 11 or otherwise) sufficient to
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support its indirect infringement claims, these claims should be dismissed without leave to
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amend.
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Finally, as noted in the Court’s Order to Show Cause (Dkt No. 35 (“Order”)) and
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conceded in Streetspace’s Response thereto, Streetspace’s putative First Amended Complaint
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(Dkt. No. 30) was not properly filed and should, therefore, be stricken. Notably, in its
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Memorandum in Opposition to Defendants’ Motion to Dismiss, Streetspace expressly argues that
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its First Amended Complaint was filed “as a matter of right.” (Dkt. No. 32 (“Opposition”), at 1.)
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In its Response to the Court’s Order to Show Cause, however, Streetspace now claims that the
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First Amended Complaint “was inadvertently filed without leave.” (Resp. at 1.) Streetspace then
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proceeds—again without any attempt to satisfy the Federal Rules of Civil Procedure or Local
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Rules of this Court—to argue that the Court should turn its response into a belated motion for
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leave to amend and grant Streetspace leave to file its First Amended Complaint now. If
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Streetspace wants to file a motion for leave to amend, it should be required to comply with the
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requirements of Local Rule 7.1. However, for the reasons discussed herein, because Streetspace’s
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proposed amendments do not remedy the fatal defects within its claims, Streetspace should not be
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given leave to amend.
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II.
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STREETSPACE’S DIRECT INFRINGEMENT CLAIMS FAIL TO STATE A
CLAIM FOR RELIEF
The pleading standard for direct patent infringement under Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) requires, at a
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COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
2.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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minimum, the specific identification of allegedly infringing products or services. Bender, 2010
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WL 889541, at *6 (requiring plaintiff to specifically identify allegedly infringing products and
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finding list of allegedly infringing product types to be insufficient). Streetspace does not contest
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that its original complaint fails to identify any allegedly infringing products or services against
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Millennial Media and Jumptap as set forth in Defendants’ Motion to Dismiss. (Opp’n at 2.)1
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Instead, Streetspace incorrectly argues that the pleading requirements set out by the
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Supreme Court in Twombly and Iqbal do not apply to its claims for direct patent infringement.
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(Id. at 1.) To the contrary, courts routinely dismiss complaints for direct patent infringement for
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failure to meet the Twombly and Iqbal pleading requirements. See, e.g., AntiCancer, 248 F.R.D.
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at 278 (granting motion to dismiss direct patent infringement claims because “the new [Twombly]
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pleading standard applies to pleadings in patent infringement actions such as the present action”);
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Bender, 2010 WL 889541, at *6 (“Bender’s infringement claim fails to provide a ‘plausible claim
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for relief’ under Twombly and Iqbal”); Friday Group v. Ticketmaster, No. 4:08CV01203, 2008
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WL 5233078, at *3 (E.D. Mo. Dec. 12, 2008) (same). Interval Licensing LLC v. AOL, Inc.,
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No. C10-1385-MJR, 2010 WL 5058620 (W.D. Wash. Dec. 10, 2010) sums it up:
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The Court disagrees with Plaintiff’s argument that Twombly and Iqbal do not
apply to patent suits… Plaintiff cites a Federal Circuit decision to suggest that
notice pleading in patent suits is unchanged by Twombly. See McZeal v. Sprint
Nextel Corp., 501 F.3d 1354, 1356-57 (Fed. Cir. 2008) (decided after Twombly
but before Iqbal). The court in McZeal did not make such a broad holding. Rather,
the divided court, which was considering a pro se complaint to which a
deferential standard applies, held that the plaintiff still had to “plead facts
sufficient to place the alleged infringer on notice as to what he must defend.” Id.
at 1357 (citing Twombly, 550 U.S. at 565 n.10). The court made no attempt to
hold that Twombly does not apply to the patent context. The Supreme Court has
also made clear that its interpretation in Twombly has an extremely broad reach.
After Twombly, the Court applied the same rule in the context of prisoner
litigation in Iqbal. If the Supreme Court believes the Twombly rule applies in the
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Streetspace’s purported First Amended Complaint similarly fails to identify any allegedly
infringing products or services against Millennial Media and Jumptap that it contends directly
infringe the ‘969 patent, (Dkt. No. 30, at ¶¶176-179, 190-194), and Streetspace does not argue
otherwise in its Opposition. Therefore, by Streetspace’s own tacit admission that it cannot
identify any Millennial Media or Jumptap products or services that it contends directly infringe
the ‘969 patent, any amendment would be futile and these claims should be dismissed without
leave to amend.
COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
3.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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context of both antitrust and prisoner litigation, there is no little [sic] reason to
believe the Court would not also apply the rule to patent suits.
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Id. at *2 (emphasis added).
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None of the cases cited by Streetspace refutes that, under the Twombly and Iqbal pleading
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requirements, a proper complaint for direct patent infringement must specifically identify the
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products that allegedly infringe the patent. Streetspace cites to McZeal as purportedly “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.” (Opp’n at 2 (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir.
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2007).) Instead, McZeal reinforces that “conclusory allegations or legal conclusions
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masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” McZeal,
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501 F.3d at 1356 (citation omitted). In addition, unlike Streetspace’s complaint, the complaint at
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issue in McZeal specifically identified the allegedly infringing products. Id. at 1357 (identifying
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the Motorola i930 “International Walkie Talkie Machine”). In Elan Microelectronics Corp. v.
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Apple, Inc., No. C 09-01531 RS, 2009 WL 2972374, at *2 (N.D. Cal. Sept. 14, 2009), another
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case relied upon by Streetspace (Opp’n at 2), the court granted the motion to dismiss even though
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the complaint identified “the Smart-Pad” as an allegedly infringing product. And Technology
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Licensing Corp. v. Technicolor USA, Inc., No. Civ. 2:03-1329 WBS EFB, 2010 WL 4070208, at
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*2 (E.D. Cal. Oct. 18, 2010), cited by Streetspace (Opposition at 2), is not even about direct
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infringement claims, but only concerns the sufficiency of pleading indirect infringement claims.
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III.
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STREETSPACE’S INDIRECT INFRINGEMENT CLAIMS FAIL TO STATE A
CLAIM FOR RELIEF
Streetspace concedes that it does not have a factual basis to allege a legally sufficient
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claim for indirect infringement against any Defendant. Streetspace can allege only that
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“Defendants knew of the ‘969 patent since at least August 23, 2010 (the filing date of the original
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complaint).” (Resp. at 3). The law, however, is clear that “knowledge after filing of the present
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action is not sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint,
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2010 WL 3187025, at *6. Xpoint follows naturally from the statutory scheme prohibiting certain
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COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
4.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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indirect infringements under 35 U.S.C. § 271(b), which imposes liability only for “active[]
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induce[ment]” of patent infringements, and 35 U.S.C. § 271(c), which imposes liability only for
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“knowing . . . contribut[ion]” to patent infringements. 35 U.S.C. § 271(b)-(c). Streetspace’s
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filing of the complaint on August 23, 2010 alone cannot satisfy the requirement of pleading
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sufficient facts to allege indirect infringements. Accordingly, Streetspace’s complaint fails to
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satisfy the pleading standard under Rule 8 and must be dismissed. Further, because by
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Streetspace’s own admissions, any amendment would be futile, these claims should be dismissed
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without leave to amend.
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In an attempt to save its indirect infringement claims, Streetspace claims that “[i]t remains
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to be seen whether any Defendant actually knew of the ‘969 patent . . . , which will be the subject
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of discovery.” (Resp. at 3.) However, the pleading standard under Rule 8 “does not unlock the
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doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S. Ct. at
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1950. By admitting that it does not have any factual basis to allege that Defendants knew of the
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‘969 patent prior to the filing of the original complaint, Streetspace admits that its allegations are
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nothing more than “formulaic recitation[s] of the elements” specifically prohibited by the
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Supreme Court. Twombly, 550 U.S. at 555.2
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IV.
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THE COURT SHOULD NOT CONSIDER STREETSPACE’S AMENDED
COMPLAINT OR PUTATIVE REQUEST FOR LEAVE TO AMEND
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By attempting—improperly—to file its First Amended Complaint, Streetspace concedes
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that its original complaint is wholly deficient. However, for the reasons set forth in the Court’s
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Order to Show Cause, Streetspace’s First Amended Complaint was not properly filed and, thus,
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must be stricken. Under similar circumstances, this Court has stricken an amended complaint
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filed in violation of Rule 15(a). See Uriarte v. City of Calexico, Civ. No. 10-cv-498 L(AJB),
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2010 WL 2264923, at *1 (S.D. Cal. June 4, 2010). In Uriarte, the Court admonished counsel
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Streetspace also misrepresents that “the Elan court found [the amended counterclaims]
sufficient to entitle [the counterclaimant] to relief for indirect patent infringement.” (Opp’n at 2
(emphasis added)). But Streetspace cites to the Second Amended Answer and Counterclaim
itself, and not any opinion by the Elan court. In fact, there was no motion to dismiss this Second
Amended Answer and Counterclaim, and the court in Elan never ruled on the sufficiency of the
amended counterclaims.
COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
5.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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stating that “compliance with the Federal Rules of Civil Procedure [and] the Civil Local Rules
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. . . is required at all times,” and that “further failure to comply with the rules of court may lead to
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penalties under Local Rule 83.1.” Id.
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Similarly, the Court should not consider, and, in fact, should also strike, Streetspace’s
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request that the Court turn its response to the Court’s Order to Show Cause into a motion for
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leave to amend. Pursuant to Local Rule 7.1, Streetspace was required, among other things, to
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obtain a hearing date for any motion for leave to amend and properly serve a written notice of
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such hearing date and motion. Streetspace did not do so. The Court should, therefore, not
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consider Streetspace’s putative motion for leave to amend. In any event, for the reasons set forth
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above, Streetspace’s proposed amendments still fail to state legally cognizable claims. Thus,
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even if Streetspace properly filed a motion for leave to amend, such motion should be denied.
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V.
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CONCLUSION
Defendants respectfully request that the Court strike Streetspace’s improperly filed
Amended Complaint and grant Defendants’ Motion to Dismiss without leave to amend.
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COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
6.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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Dated: March 7, 2011
COOLEY LLP
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/s/ John S. Kyle
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JOHN S. KYLE (CA 199196)
jkyle@cooley.com
4401 Eastgate Mall
San Diego, California 92121
Telephone:
(858) 550-6000
Facsimile:
(858) 550-6420
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FRANK V. PIETRANTONIO (pro hac vice)
fpietrantonio@cooley.com
CHRISTOPHER C. CAMPBELL (pro hac vice)
ccampbell@cooley.com
One Freedom Square
11951 Freedom Drive
Reston, VA 20190-5656
Telephone:
(703) 456-8000
Facsimile:
(703) 456-8100
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Attorneys for Defendant
MILLENNIAL MEDIA, INC.
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By: /s/ Luann L. Simmons
George A. Riley (SB# 118304)
griley@omm.com
Luann L. Simmons (SB# 203526)
lsimmons@omm.com
Anne E. Huffsmith (SB# 236438)
ahuffsmith@omm.com
O’Melveny & Myers LLP
Two Embarcadero Center, 28th Floor
San Francisco, California 94111
Telephone:
(415) 984-8700
Facsimile:
(415) 984-8701
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Attorneys for Defendants APPLE INC. and
QUATTRO WIRELESS, INC.
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COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
7.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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/s/ Shawn E. McDonald
Foley & Lardner LLP
MATTHEW B. LOWRIE (pro hac vice)
mlowrie@foley.com
111 Huntington Avenue, Suite 2600
Boston, MA 02119-7610
Telephone:
617.342.4000
Facsimile:
617.342.4001
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Foley & Lardner LLP
SHAWN E. MCDONALD (CSB NO. 237580)
semcdonald@foley.com
JUSTIN E. GRAY (pro hac vice)
jegray@foley.com
3579 Valley Centre Drive, Suite 300
San Diego, CA 92130
Telephone:
858.847.6700
Facsimile:
858.792.6773
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Attorneys for Defendants GOOGLE, INC. and
ADMOB, INC.
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/s/ Kurt M. Kjelland
Kurt M. Kjelland
KKjelland@goodwinprocter.com
GOODWIN PROCTER LLP
4365 Executive Drive
Third Floor
San Diego, CA 92121
(858) 202-2728
Fax: (858) 457-1255
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Attorney for Defendant JUMPTAP, INC.
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/s/ David Heskel Ben-Meir
David Heskel Ben-Meir
david.ben-meir@alston.com
ALSTON & BIRD LLP
333 South Hope Street, 16th Floor
Los Angeles, CA 90071
(213) 576-1133
Fax: (213) 576-1100
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Attorney for Defendants NOKIA, INC.,
NOKIA CORPORATION, and NAVTEQ, INC.
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COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
8.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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CERTIFICATE OF SERVICE
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The undersigned hereby certifies that a true and correct copy of the above and foregoing
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document has been served on March 7, 2011, to all counsel of record who are deemed to have
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consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any
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counsel of record who have not consented to electronic service through the Court’s CM/ECF
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system will be served by electronic mail, first class mail, facsimile and/or overnight delivery.
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/s/ John S. Kyle
John S. Kyle, Esq.
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_________
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COOLEY LLP
ATTORNEYS AT LAW
CASE NO. 10-CV-1757-LAB-AJB
9.
REPLY IN SUPPORT OF MOTION TO DISMISS
Case No. 10-cv-1757-LAB-AJB
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