Streetspace, Inc v. Google, Inc. et al

Filing 42

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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1 2 3 4 5 6 7 8 9 10 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. 11 Additional parties and counsel listed in the signature block 12 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 16 STREETSPACE, INC., Plaintiff, 17 18 19 20 21 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 22 Defendants. 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 10-cv-1757-LAB-AJB 1 2 I. INTRODUCTION Streetspace concedes that its allegations of direct infringement against Millennial Media 3 and Jumptap included in the original complaint fail to “name[] and specifically identif[y]” the 4 allegedly infringing products or services. (Memorandum in Support of Motion to Dismiss, Dkt. 5 No. 21-1 (“Motion to Dismiss”), at 5 (citing Bender v. LG Elecs. U.S.A., Inc., Case No. C-09- 6 02114-JF, 2010 WL 889541, at *6 (N.D. Cal. Mar. 11, 2010).) The standard for pleading direct 7 patent infringement set forth in the Supreme Court’s decisions in Twombly and Iqbal requires, at 8 a minimum, that Streetspace specifically identify the allegedly infringing products or services. 9 Streetspace’s argument that Twombly and Iqbal do not “apply to the pleading requirements for 10 direct patent infringement” has been rejected by this Court and others. See, e.g., AntiCancer Inc. 11 v. Xenogen Corp., 248 F.R.D. 278, 282-83 (S.D. Cal. 2007); Bender, 2010 WL 889541, at *6. 12 Streetspace’s response to Defendants’ identification of the deficiencies in its indirect 13 infringement claims similarly fails to save these claims. Streetspace admits that it does not have 14 any factual basis to allege that Defendants knew of the patent-in-suit prior to the filing of the 15 complaint and that it can allege only that “Defendants knew of the ‘969 patent since at least 16 August 23, 2010 (the filing date of the original complaint).” (Response to Order to Show Cause, 17 Dkt. No. 39 (“Response”), at 3). It is settled that “knowledge after filing of the present action is 18 not sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint Techs., 19 Inc., v. Microsoft Corp., Civ. No. 09-628-SLR, 2010 WL 3187025, at *6 (D. Del. Aug. 12, 2010) 20 (citing Mallinckrodt, Inc. v. E-Z-Em, Inc., 670 F. Supp. 2d 349, 354 n.1 (D. Del. 2009). To hold 21 otherwise would allow plaintiffs to fabricate a claim of indirect patent infringement, then file an 22 amended complaint—as Streetspace improperly attempted to do here—and then allege in the 23 amended complaint that Defendants were on notice of the patent-in-suit at least as early as the 24 date of the original complaint. Thus, by its own admissions, Streetspace has not and cannot plead 25 a legally sufficient claim for indirect infringement against any Defendant. 26 27 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 . . . , 28 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 1 which will be the subject of discovery.” (Resp. at 3.) But “remains to be seen” is not a 2 cognizable placeholder allowing Streetspace to take discovery to ascertain whether the 3 Defendants had any knowledge of the ‘969 patent prior to Streetspace’s complaint. Either 4 Streetspace can plead that Defendants had knowledge of the ‘969 patent at the time it filed the 5 original complaint, or it cannot. The pleading standard under Rule 8 “does not unlock the doors of 6 discovery for a plaintiff armed with nothing more than conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 7 1937, 1950 (2009). Because Streetspace has no factual basis (Rule 11 or otherwise) sufficient to 8 support its indirect infringement claims, these claims should be dismissed without leave to 9 amend. 10 Finally, as noted in the Court’s Order to Show Cause (Dkt No. 35 (“Order”)) and 11 conceded in Streetspace’s Response thereto, Streetspace’s putative First Amended Complaint 12 (Dkt. No. 30) was not properly filed and should, therefore, be stricken. Notably, in its 13 Memorandum in Opposition to Defendants’ Motion to Dismiss, Streetspace expressly argues that 14 its First Amended Complaint was filed “as a matter of right.” (Dkt. No. 32 (“Opposition”), at 1.) 15 In its Response to the Court’s Order to Show Cause, however, Streetspace now claims that the 16 First Amended Complaint “was inadvertently filed without leave.” (Resp. at 1.) Streetspace then 17 proceeds—again without any attempt to satisfy the Federal Rules of Civil Procedure or Local 18 Rules of this Court—to argue that the Court should turn its response into a belated motion for 19 leave to amend and grant Streetspace leave to file its First Amended Complaint now. If 20 Streetspace wants to file a motion for leave to amend, it should be required to comply with the 21 requirements of Local Rule 7.1. However, for the reasons discussed herein, because Streetspace’s 22 proposed amendments do not remedy the fatal defects within its claims, Streetspace should not be 23 given leave to amend. 24 II. 25 26 27 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 28 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 1 minimum, the specific identification of allegedly infringing products or services. Bender, 2010 2 WL 889541, at *6 (requiring plaintiff to specifically identify allegedly infringing products and 3 finding list of allegedly infringing product types to be insufficient). Streetspace does not contest 4 that its original complaint fails to identify any allegedly infringing products or services against 5 Millennial Media and Jumptap as set forth in Defendants’ Motion to Dismiss. (Opp’n at 2.)1 6 Instead, Streetspace incorrectly argues that the pleading requirements set out by the 7 Supreme Court in Twombly and Iqbal do not apply to its claims for direct patent infringement. 8 (Id. at 1.) To the contrary, courts routinely dismiss complaints for direct patent infringement for 9 failure to meet the Twombly and Iqbal pleading requirements. See, e.g., AntiCancer, 248 F.R.D. 10 at 278 (granting motion to dismiss direct patent infringement claims because “the new [Twombly] 11 pleading standard applies to pleadings in patent infringement actions such as the present action”); 12 Bender, 2010 WL 889541, at *6 (“Bender’s infringement claim fails to provide a ‘plausible claim 13 for relief’ under Twombly and Iqbal”); Friday Group v. Ticketmaster, No. 4:08CV01203, 2008 14 WL 5233078, at *3 (E.D. Mo. Dec. 12, 2008) (same). Interval Licensing LLC v. AOL, Inc., 15 No. C10-1385-MJR, 2010 WL 5058620 (W.D. Wash. Dec. 10, 2010) sums it up: 16 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 17 18 19 20 21 22 23 24 1 25 26 27 28 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 1 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. 2 3 Id. at *2 (emphasis added). 4 None of the cases cited by Streetspace refutes that, under the Twombly and Iqbal pleading 5 requirements, a proper complaint for direct patent infringement must specifically identify the 6 products that allegedly infringe the patent. Streetspace cites to McZeal as purportedly “holding 7 that even conclusory allegations of direct patent infringement were sufficient to survive a motion 8 to dismiss.” (Opp’n at 2 (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir. 9 2007).) Instead, McZeal reinforces that “conclusory allegations or legal conclusions 10 masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” McZeal, 11 501 F.3d at 1356 (citation omitted). In addition, unlike Streetspace’s complaint, the complaint at 12 issue in McZeal specifically identified the allegedly infringing products. Id. at 1357 (identifying 13 the Motorola i930 “International Walkie Talkie Machine”). In Elan Microelectronics Corp. v. 14 Apple, Inc., No. C 09-01531 RS, 2009 WL 2972374, at *2 (N.D. Cal. Sept. 14, 2009), another 15 case relied upon by Streetspace (Opp’n at 2), the court granted the motion to dismiss even though 16 the complaint identified “the Smart-Pad” as an allegedly infringing product. And Technology 17 Licensing Corp. v. Technicolor USA, Inc., No. Civ. 2:03-1329 WBS EFB, 2010 WL 4070208, at 18 *2 (E.D. Cal. Oct. 18, 2010), cited by Streetspace (Opposition at 2), is not even about direct 19 infringement claims, but only concerns the sufficiency of pleading indirect infringement claims. 20 III. 21 22 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 23 claim for indirect infringement against any Defendant. Streetspace can allege only that 24 “Defendants knew of the ‘969 patent since at least August 23, 2010 (the filing date of the original 25 complaint).” (Resp. at 3). The law, however, is clear that “knowledge after filing of the present 26 action is not sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint, 27 2010 WL 3187025, at *6. Xpoint follows naturally from the statutory scheme prohibiting certain 28 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 1 indirect infringements under 35 U.S.C. § 271(b), which imposes liability only for “active[] 2 induce[ment]” of patent infringements, and 35 U.S.C. § 271(c), which imposes liability only for 3 “knowing . . . contribut[ion]” to patent infringements. 35 U.S.C. § 271(b)-(c). Streetspace’s 4 filing of the complaint on August 23, 2010 alone cannot satisfy the requirement of pleading 5 sufficient facts to allege indirect infringements. Accordingly, Streetspace’s complaint fails to 6 satisfy the pleading standard under Rule 8 and must be dismissed. Further, because by 7 Streetspace’s own admissions, any amendment would be futile, these claims should be dismissed 8 without leave to amend. 9 In an attempt to save its indirect infringement claims, Streetspace claims that “[i]t remains 10 to be seen whether any Defendant actually knew of the ‘969 patent . . . , which will be the subject 11 of discovery.” (Resp. at 3.) However, the pleading standard under Rule 8 “does not unlock the 12 doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S. Ct. at 13 1950. By admitting that it does not have any factual basis to allege that Defendants knew of the 14 ‘969 patent prior to the filing of the original complaint, Streetspace admits that its allegations are 15 nothing more than “formulaic recitation[s] of the elements” specifically prohibited by the 16 Supreme Court. Twombly, 550 U.S. at 555.2 17 IV. 18 THE COURT SHOULD NOT CONSIDER STREETSPACE’S AMENDED COMPLAINT OR PUTATIVE REQUEST FOR LEAVE TO AMEND 19 By attempting—improperly—to file its First Amended Complaint, Streetspace concedes 20 that its original complaint is wholly deficient. However, for the reasons set forth in the Court’s 21 Order to Show Cause, Streetspace’s First Amended Complaint was not properly filed and, thus, 22 must be stricken. Under similar circumstances, this Court has stricken an amended complaint 23 filed in violation of Rule 15(a). See Uriarte v. City of Calexico, Civ. No. 10-cv-498 L(AJB), 24 2010 WL 2264923, at *1 (S.D. Cal. June 4, 2010). In Uriarte, the Court admonished counsel 25 2 26 27 28 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 1 stating that “compliance with the Federal Rules of Civil Procedure [and] the Civil Local Rules 2 . . . is required at all times,” and that “further failure to comply with the rules of court may lead to 3 penalties under Local Rule 83.1.” Id. 4 Similarly, the Court should not consider, and, in fact, should also strike, Streetspace’s 5 request that the Court turn its response to the Court’s Order to Show Cause into a motion for 6 leave to amend. Pursuant to Local Rule 7.1, Streetspace was required, among other things, to 7 obtain a hearing date for any motion for leave to amend and properly serve a written notice of 8 such hearing date and motion. Streetspace did not do so. The Court should, therefore, not 9 consider Streetspace’s putative motion for leave to amend. In any event, for the reasons set forth 10 above, Streetspace’s proposed amendments still fail to state legally cognizable claims. Thus, 11 even if Streetspace properly filed a motion for leave to amend, such motion should be denied. 12 V. 13 14 CONCLUSION Defendants respectfully request that the Court strike Streetspace’s improperly filed Amended Complaint and grant Defendants’ Motion to Dismiss without leave to amend. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 Dated: March 7, 2011 COOLEY LLP 2 3 /s/ John S. Kyle 4 JOHN S. KYLE (CA 199196) jkyle@cooley.com 4401 Eastgate Mall San Diego, California 92121 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 5 6 7 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 8 9 10 11 12 Attorneys for Defendant MILLENNIAL MEDIA, INC. 13 14 15 16 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 17 18 19 20 21 22 23 Attorneys for Defendants APPLE INC. and QUATTRO WIRELESS, INC. 24 25 26 27 28 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 1 /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 2 3 4 5 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 6 7 8 9 10 Attorneys for Defendants GOOGLE, INC. and ADMOB, INC. 11 12 13 /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 14 15 16 17 18 Attorney for Defendant JUMPTAP, INC. 19 20 21 /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 22 23 24 25 26 Attorney for Defendants NOKIA, INC., NOKIA CORPORATION, and NAVTEQ, INC. 27 28 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 1 CERTIFICATE OF SERVICE 2 3 The undersigned hereby certifies that a true and correct copy of the above and foregoing 4 document has been served on March 7, 2011, to all counsel of record who are deemed to have 5 consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any 6 counsel of record who have not consented to electronic service through the Court’s CM/ECF 7 system will be served by electronic mail, first class mail, facsimile and/or overnight delivery. 8 9 /s/ John S. Kyle John S. Kyle, Esq. 10 _________ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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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