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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COOLEY LLP
JOHN S. KYLE (CA 199196)
[e-mail]
4401 Eastgate Mall
San Diego, California 92121
Telephone: (858)
550-6000
Facsimile: (858)
550-6420
FRANK V. PIETRANTONIO (pro hac vice)
[e-mail]
CHRISTOPHER C. CAMPBELL (pro hac vice)
[e-mail]
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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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,
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

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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

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Millennial Media respectfully request permission to submit a short sur-reply directing the

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Court to legal and factual errors in Streetspace’s Reply. Courts exercise their discretion in favor

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of allowing a sur-reply where a valid reason for such additional briefing exists. Hill v. England,

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2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005); Landmark Screens, LLC v. Morgan, Lewis &

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Bockius LLP, 2010 U.S. Dist. LEXIS 95735, *7 (N.D. Cal. Sept. 14, 2010) (“surreply is an

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appropriate response to arguments made by Defendants for the first time in their reply brief”). In

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this case, good cause exists for the Court to accept and consider Millennial Media’s sur-reply

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because Streetspace raised several arguments for the first time in their reply brief.

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Millennial Media’s sur-reply will correct the record with respect to the legal and factual

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errors that appear for the first time in Streetspace’s Reply. These errors include: (1) accusing

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Millennial Media of improperly ignoring Flatt v. Superior Ct., 9 Cal.4th 275 (1994) (Reply at 1-

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5); (2) mischaracterizing Adams v. Aerojet-General Corp., 86 Cal.App.4th 1324 (Cal. App. 2001)

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(Reply at 5-9); and, (3) arguing in contradiction to the declaration submitted by Streetspace’s

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counsel, Mr. Coddington, that (i) Mr. Campbell was based in Hunton’s Washington, D.C. office

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(Reply at 1), (ii) Mr. Coddington reported to Mr. Campbell (id. at 3), and (iii) Mr. Campbell was

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an “an intellectual property partner in electrical engineering-type cases in Hunton’s Washington,

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D.C. office (id.). For the convenience of the Court, a copy of Millennial Media’s sur-reply is

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attached as Exhibit B to the Declaration of John S. Kyle.

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In addition, Millennial Media’s sur-reply is essential to maintaining the highest standards

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of professionalism expected of the lawyers who practice before this Court as required by Local

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Rule 83.4. In particular, Streetspace’s Reply repeatedly makes unsupported accusations that

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Millennial Media’s counsel, Mr. Campbell, personally made “false representations.” (Reply at 1,

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3.) Local Rule 83.4(a)(2)(a) requires that an attorney in practice before this court must not

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“[d]isparage the intelligence, ethics, morals, integrity or behavior of opposing parties or counsel

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unless such characteristics are at issue.” Streetspace’s motion to disqualify is ostensibly based on

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Mr. Campbell working in “the same intellectual property group of the same office of the same

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firm that prosecuted” the ‘969 patent. (Reply at 1 (emphasis in original).) Yet, Streetspace

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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

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Streetspace attacks that Mr. Campbell personally made “false representations” on: (1) the location

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of Mr. Campbell’s office at Hunton, and (2) the reporting relationship between Mr. Coddington

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and Mr. Campbell. The sur-reply will show that Streetspace’s personal attacks on Mr. Campbell

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are contradicted by even its own counsel’s declaration.

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Accordingly, the consideration of the sur-reply is necessary for a complete and accurate

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understanding by the Court of the issues at hand and in upholding the professionalism in

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practicing in front of this Court. Plaintiff will not be prejudiced by the Court granting this motion

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because the sur-reply will not present new arguments about the Motion to Disqualify Counsel.

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Furthermore, there will be no prejudicial impact on judicial proceedings because the hearing for

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this motion is now off calendar. (Dkt. No. 44.) Finally, Millennial Media has acted in good faith

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to timely correct the record before the Court issues a decision on Streetspace’s motion.

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Millennial Media has provided notice to opposing counsel pursuant to Civil Local Rule
83.3(h). (Declaration of John S. Kyle ¶ 3.)

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Dated: March 14, 2011

Respectfully submitted,

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/s/ John S. Kyle
John Kyle, Esq.

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Counsel for Defendant
Millennial Media, Inc.
Email: [e-mail]

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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

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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 14, 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 Kyle_________
John Kyle, Esq.

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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