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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1 2 3 4 5 6 7 DOUGLAS E. OLSON (CSB NO. 38649) JAMES V. FAZIO, III (CSB NO. 183353) TREVOR Q. CODDINGTON, PH.D. (CSB NO. 243042) SAN DIEGO IP LAW GROUP LLP 12526 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: (858) 792-3446 Facsimile: (858) 792-3447 Attorneys for Plaintiff STREETSPACE, INC. 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 STREETSPACE, INC., a Delaware corporation, Plaintiff, 13 14 15 16 17 18 19 20 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 9 21 Defendants. 22 23 24 25 26 27 28 CASE NO. 10-CV-01757-LAB-WMC 1 Plaintiff Streetspace, Inc. (“Streetspace”) respectfully opposes the motion by Defendant 2 Millennial Media, Inc. (“Millennial Media”) for leave to file a sur-reply in opposition to 3 Streetspace’s motion to disqualify Cooley LLP (“Cooley”). 4 In its March 10, 2011 Minute Order, this Court determined that the pending motion to 5 disqualify is “suitable for decision without oral argument” and took the matter under submission 6 on the papers. D.E. No. 44. When, as here, a court has found previously submitted briefing 7 sufficient to resolve the issues presented, leave to file a sur-reply should be denied. Sharp 8 Healthcare v. Leavitt, 2009 U.S. Dist. LEXIS 25566, at *6, n.1 (S.D. Cal. Mar. 25, 2009); cf. 9 Portillo v. Khatri, 2009 U.S. Dist. LEXIS 2808, at *2-3 (S.D. Cal. Jan. 13, 2009) (finding oral 10 11 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 12 authorize the filing of sur-replies. See Johnson v. Wennes, 2009 U.S. Dist. LEXIS 36992, at *5-6 13 (S.D. Cal. Apr. 28, 2009). While a court may in its discretion grant leave to file a sur-reply, it 14 may not do so absent a showing of good cause. Johnson v. Wennes, 2009 U.S. Dist. LEXIS 15 36992, at *5-6 (S.D. Cal. Apr. 28, 2009). Importantly, a reply brief that “merely reiterates and 16 elaborates” on the grounds for granting the motion to which it is directed does not constitute 17 good cause for allowing a sur-reply. Textile Secrets Int’l, Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 18 2d 1184, 1203 (C.D. Cal. Oct. 31, 2007). Put differently, when a reply brief “merely add[s] 19 additional facts to the same arguments” raised in a party’s opening brief, leave to file a sur-reply 20 should be denied. Advanced Rotorcraft Tech., Inc. v. L-3 Communications Corp., 2007 U.S. Dist. 21 LEXIS 11986, at *13 (N.D. Cal. Feb. 6, 2007). See also, Jewell v. Francis, 2011 U.S. Dist. 22 LEXIS 10487, at *2 (S.D. Cal. Feb. 3, 2011) (denying leave to file sur-reply because “no new 23 grounds [were] raised in the reply”). 24 Here, Millennial Media contends that Streetspace’s reply adds new facts and argument not 25 previously raised in its opening brief. There is nothing new in Streetspace’s reply. True, 26 Streetspace’s reply brief does (1) highlight that Millennial Media ignored in its opposition the 27 California Supreme Court opinion in Flatt v. Superior Ct., 9 Cal.4th 275 (1994); (2) argue that 28 Adams v. Aerojet-General Corp., 86 Cal.App.4th 1324 (2001) and other authorities cited by -1CASE NO. 10-CV-01757-LAB-WMC 1 Millennial Media are unavailing and actually support Streetspace’s position; and (3) add some 2 additional facts regarding Mr. Campbell’s behavior when he was a partner in Hunton & William’s 3 Washington, D.C. office, but those facts and arguments were already raised in Streetspace’s 4 opening brief; Streetspace merely elaborated on them in response to Millennial Media’s 5 opposition. Specifically, Millennial Media contends that Streetspace improperly raised points (1) 6 and (2) for the first time in its reply, but Streetspace could necessarily have only addressed Adams 7 and Millennial Media’s ignorance of Flatt for the first time in its reply because those errors only 8 appeared for the first time in Millennial Media’s opposition. It is not Streetspace’s fault that 9 Millennial Media did not adequately address Flatt in its opposition, nor that Millennial Media’s 10 reliance on Adams and other cases is misplaced; granting leave to file a sur-reply to correct 11 deficiencies that could and should have been addressed in an opposition is inappropriate. 12 As for point (3), the Reply Declaration of Trevor Q. Coddington merely expounded on the 13 numbers of intellectual property partners and associates in Hunton’s Washington, D.C. office, Mr. 14 Campbell’s filing of briefs out of the Washington, D.C. office, the relationship between Hunton’s 15 McLean, Virginia and Washington, D.C. offices and the sharing of resources between them—all 16 of which were raised to refute the assertions in Millennial Media’s opposition that Mr. Campbell 17 worked solely out of Hunton’s McLean, Virginia office and did not supervise Mr. Coddington’s 18 work. Without engaging in the “hair-splitting niceties” that courts seek to avoid, Streetspace is 19 not disparaging the ethics or morals of opposing counsel; rather, Mr. Campbell’s experience and 20 conduct while a partner at Hunton is simply very much at issue in the motion to disqualify. 21 Because Streetspace’s reply merely added additional facts and support to the same arguments 22 made in its moving papers, leave to file a sur-reply should be denied. Advanced Rotorcraft, 2007 23 U.S. Dist. LEXIS 11986, at *13; see also Textile Secrets, 524 F. Supp. 2d at 1203. In fact, 24 Streetspace believes that no hearing is necessary to resolve this ex parte request, lest Millennial 25 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 26 27 denied. 28 -2CASE NO. 10-CV-01757-LAB-WMC 1 Dated: March 15, 2011 SAN DIEGO IP LAW GROUP LLP 2 3 4 5 6 By:/s/James V. Fazio, III DOUGLAS E. OLSON JAMES V. FAZIO, III TREVOR Q. CODDINGTON, PH.D. Attorneys for Plaintiff STREETSPACE, INC. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3CASE NO. 10-CV-01757-LAB-WMC

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