Streetspace, Inc v. Google, Inc. et al

Filing 46

Ex Parte MOTION for Leave to File a Sur-Reply to Streetspace's Reply in Support of Motion to Disqualify Counsel by Millennial Media, Inc. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of John Kyle, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Kyle, John) (kaj).

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1 2 3 4 5 6 7 8 9 10 11 COOLEY LLP JOHN S. KYLE (CA 199196) 4401 Eastgate Mall San Diego, California 92121 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 FRANK V. PIETRANTONIO (pro hac vice) CHRISTOPHER C. CAMPBELL (pro hac vice) One Freedom Square 11951 Freedom Drive Reston, VA 20190-5656 Telephone: (703) 456-8000 Facsimile: (703) 456-8100 Attorneys for Defendants MILLENNIAL MEDIA, INC. 12 13 UNITED STATES DISTRICT COURT 14 SOUTHERN DISTRICT OF CALIFORNIA 15 16 STREETSPACE, INC., Plaintiff, 17 18 19 20 21 22 23 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, Defendants. Case No. 3:10-CV-01757-LAB- WMC MILLENNIAL MEDIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS EX PARTE MOTION FOR LEAVE TO FILE A SUR-REPLY TO STREETSPACE’S REPLY IN SUPPORT OF MOTION TO DISQUALIFY COUNSEL Date: TBD Time: TBD Courtroom: 9, 2nd Floor Judge: Hon. Larry Alan Burns 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW MILLENNIAL MEDIA’S MEMORANDUM IN SUPPORT OF ITS EX PARTE MOTION FOR LEAVE TO FILE A SURREPLY Case No. 10-cv-1757-LAB-AJB 1 Millennial Media respectfully request permission to submit a short sur-reply directing the 2 Court to legal and factual errors in Streetspace’s Reply. Courts exercise their discretion in favor 3 of allowing a sur-reply where a valid reason for such additional briefing exists. Hill v. England, 4 2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005); Landmark Screens, LLC v. Morgan, Lewis & 5 Bockius LLP, 2010 U.S. Dist. LEXIS 95735, *7 (N.D. Cal. Sept. 14, 2010) (“surreply is an 6 appropriate response to arguments made by Defendants for the first time in their reply brief”). In 7 this case, good cause exists for the Court to accept and consider Millennial Media’s sur-reply 8 because Streetspace raised several arguments for the first time in their reply brief. 9 Millennial Media’s sur-reply will correct the record with respect to the legal and factual 10 errors that appear for the first time in Streetspace’s Reply. These errors include: (1) accusing 11 Millennial Media of improperly ignoring Flatt v. Superior Ct., 9 Cal.4th 275 (1994) (Reply at 1- 12 5); (2) mischaracterizing Adams v. Aerojet-General Corp., 86 Cal.App.4th 1324 (Cal. App. 2001) 13 (Reply at 5-9); and, (3) arguing in contradiction to the declaration submitted by Streetspace’s 14 counsel, Mr. Coddington, that (i) Mr. Campbell was based in Hunton’s Washington, D.C. office 15 (Reply at 1), (ii) Mr. Coddington reported to Mr. Campbell (id. at 3), and (iii) Mr. Campbell was 16 an “an intellectual property partner in electrical engineering-type cases in Hunton’s Washington, 17 D.C. office (id.). For the convenience of the Court, a copy of Millennial Media’s sur-reply is 18 attached as Exhibit B to the Declaration of John S. Kyle. 19 In addition, Millennial Media’s sur-reply is essential to maintaining the highest standards 20 of professionalism expected of the lawyers who practice before this Court as required by Local 21 Rule 83.4. In particular, Streetspace’s Reply repeatedly makes unsupported accusations that 22 Millennial Media’s counsel, Mr. Campbell, personally made “false representations.” (Reply at 1, 23 3.) Local Rule 83.4(a)(2)(a) requires that an attorney in practice before this court must not 24 “[d]isparage the intelligence, ethics, morals, integrity or behavior of opposing parties or counsel 25 unless such characteristics are at issue.” Streetspace’s motion to disqualify is ostensibly based on 26 Mr. Campbell working in “the same intellectual property group of the same office of the same 27 firm that prosecuted” the ‘969 patent. (Reply at 1 (emphasis in original).) Yet, Streetspace 28 repeatedly attacks Mr. Campbell’s integrity even though it is not at issue. Without support, COOLEY LLP ATTORNEYS AT LAW MILLENNIAL MEDIA’S MEMORANDUM IN SUPPORT OF ITS EX PARTE MOTION FOR LEAVE TO FILE A SURREPLY 1. Case No. 10-cv-1757-LAB-AJB 1 Streetspace attacks that Mr. Campbell personally made “false representations” on: (1) the location 2 of Mr. Campbell’s office at Hunton, and (2) the reporting relationship between Mr. Coddington 3 and Mr. Campbell. The sur-reply will show that Streetspace’s personal attacks on Mr. Campbell 4 are contradicted by even its own counsel’s declaration. 5 Accordingly, the consideration of the sur-reply is necessary for a complete and accurate 6 understanding by the Court of the issues at hand and in upholding the professionalism in 7 practicing in front of this Court. Plaintiff will not be prejudiced by the Court granting this motion 8 because the sur-reply will not present new arguments about the Motion to Disqualify Counsel. 9 Furthermore, there will be no prejudicial impact on judicial proceedings because the hearing for 10 this motion is now off calendar. (Dkt. No. 44.) Finally, Millennial Media has acted in good faith 11 to timely correct the record before the Court issues a decision on Streetspace’s motion. 12 13 Millennial Media has provided notice to opposing counsel pursuant to Civil Local Rule 83.3(h). (Declaration of John S. Kyle ¶ 3.) 14 15 Dated: March 14, 2011 Respectfully submitted, 16 /s/ John S. Kyle John Kyle, Esq. 17 18 Counsel for Defendant Millennial Media, Inc. Email: 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ATTORNEYS AT LAW MILLENNIAL MEDIA’S MEMORANDUM IN SUPPORT OF ITS EX PARTE MOTION FOR LEAVE TO FILE A SURREPLY 2. 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 14, 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 Kyle_________ John 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 MILLENNIAL MEDIA’S MEMORANDUM IN SUPPORT OF ITS EX PARTE MOTION FOR LEAVE TO FILE A SURREPLY 3. Case No. 10-cv-1757-LAB-AJB

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