Streetspace, Inc v. Google, Inc. et al

Filing 47

RESPONSE in Opposition re 46 Ex Parte MOTION for Leave to File a Sur-Reply to Streetspace's Reply in Support of Motion to Disqualify Counsel filed by Streetspace, Inc. (Attachments: # 1 Proof of Service)(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-01757-LAB-WMC
OPPOSITION OF PLAINTIFF
STREETSPACE, INC. TO EX PARTE
MOTION BY MILLENNIAL MEDIA
FOR LEAVE TO FILE SUR-REPLY IN
OPPOSITION TO STREETSPACE’S
MOTION TO DISQUALIFY COOLEY
LLP
Date:
Time:
Judge:
Ctrm:

Hon. Larry A. Burns
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Defendants.
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CASE NO. 10-CV-01757-LAB-WMC

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Plaintiff Streetspace, Inc. (“Streetspace”) respectfully opposes the motion by Defendant

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Millennial Media, Inc. (“Millennial Media”) for leave to file a sur-reply in opposition to

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Streetspace’s motion to disqualify Cooley LLP (“Cooley”).

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In its March 10, 2011 Minute Order, this Court determined that the pending motion to

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disqualify is “suitable for decision without oral argument” and took the matter under submission

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on the papers. D.E. No. 44. When, as here, a court has found previously submitted briefing

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sufficient to resolve the issues presented, leave to file a sur-reply should be denied. Sharp

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Healthcare v. Leavitt, 2009 U.S. Dist. LEXIS 25566, at *6, n.1 (S.D. Cal. Mar. 25, 2009); cf.

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Portillo v. Khatri, 2009 U.S. Dist. LEXIS 2808, at *2-3 (S.D. Cal. Jan. 13, 2009) (finding oral

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argument unnecessary and denying request for leave to file a sur-reply).
Indeed, neither the Federal Rules of Civil Procedure nor this District’s Civil Local Rules

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authorize the filing of sur-replies. See Johnson v. Wennes, 2009 U.S. Dist. LEXIS 36992, at *5-6

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(S.D. Cal. Apr. 28, 2009). While a court may in its discretion grant leave to file a sur-reply, it

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may not do so absent a showing of good cause. Johnson v. Wennes, 2009 U.S. Dist. LEXIS

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36992, at *5-6 (S.D. Cal. Apr. 28, 2009). Importantly, a reply brief that “merely reiterates and

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elaborates” on the grounds for granting the motion to which it is directed does not constitute

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good cause for allowing a sur-reply. Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp.

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2d 1184, 1203 (C.D. Cal. Oct. 31, 2007). Put differently, when a reply brief “merely add[s]

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additional facts to the same arguments” raised in a party’s opening brief, leave to file a sur-reply

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should be denied. Advanced Rotorcraft Tech., Inc. v. L-3 Communications Corp., 2007 U.S. Dist.

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LEXIS 11986, at *13 (N.D. Cal. Feb. 6, 2007). See also, Jewell v. Francis, 2011 U.S. Dist.

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LEXIS 10487, at *2 (S.D. Cal. Feb. 3, 2011) (denying leave to file sur-reply because “no new

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grounds [were] raised in the reply”).

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Here, Millennial Media contends that Streetspace’s reply adds new facts and argument not

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previously raised in its opening brief. There is nothing new in Streetspace’s reply. True,

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Streetspace’s reply brief does (1) highlight that Millennial Media ignored in its opposition the

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California Supreme Court opinion in Flatt v. Superior Ct., 9 Cal.4th 275 (1994); (2) argue that

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Adams v. Aerojet-General Corp., 86 Cal.App.4th 1324 (2001) and other authorities cited by
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Millennial Media are unavailing and actually support Streetspace’s position; and (3) add some

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additional facts regarding Mr. Campbell’s behavior when he was a partner in Hunton & William’s

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Washington, D.C. office, but those facts and arguments were already raised in Streetspace’s

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opening brief; Streetspace merely elaborated on them in response to Millennial Media’s

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opposition. Specifically, Millennial Media contends that Streetspace improperly raised points (1)

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and (2) for the first time in its reply, but Streetspace could necessarily have only addressed Adams

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and Millennial Media’s ignorance of Flatt for the first time in its reply because those errors only

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appeared for the first time in Millennial Media’s opposition. It is not Streetspace’s fault that

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Millennial Media did not adequately address Flatt in its opposition, nor that Millennial Media’s

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reliance on Adams and other cases is misplaced; granting leave to file a sur-reply to correct

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deficiencies that could and should have been addressed in an opposition is inappropriate.

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As for point (3), the Reply Declaration of Trevor Q. Coddington merely expounded on the

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numbers of intellectual property partners and associates in Hunton’s Washington, D.C. office, Mr.

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Campbell’s filing of briefs out of the Washington, D.C. office, the relationship between Hunton’s

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McLean, Virginia and Washington, D.C. offices and the sharing of resources between them—all

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of which were raised to refute the assertions in Millennial Media’s opposition that Mr. Campbell

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worked solely out of Hunton’s McLean, Virginia office and did not supervise Mr. Coddington’s

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work. Without engaging in the “hair-splitting niceties” that courts seek to avoid, Streetspace is

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not disparaging the ethics or morals of opposing counsel; rather, Mr. Campbell’s experience and

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conduct while a partner at Hunton is simply very much at issue in the motion to disqualify.

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Because Streetspace’s reply merely added additional facts and support to the same arguments

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made in its moving papers, leave to file a sur-reply should be denied. Advanced Rotorcraft, 2007

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U.S. Dist. LEXIS 11986, at *13; see also Textile Secrets, 524 F. Supp. 2d at 1203. In fact,

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Streetspace believes that no hearing is necessary to resolve this ex parte request, lest Millennial

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Media seek to use that opportunity to address the underlying merits of the motion.
For all these reasons, Millennial Media’s request for leave to file a sur-reply should be

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denied.

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-2CASE NO. 10-CV-01757-LAB-WMC

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Dated: March 15, 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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-3CASE NO. 10-CV-01757-LAB-WMC