The Facebook, Inc. v. Connectu, Inc et al

Filing 771

RESPONSE (re 769 Administrative Motion to File Under Seal ) Opposition to Administrative Request to File 15 Page Oversized Brief filed byThe Facebook, Inc., Mark Zuckerberg. (Attachments: # 1 Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Chatterjee, Indra) (Filed on 10/27/2011)

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1 2 3 4 5 6 7 I. NEEL CHATTERJEE (STATE BAR NO. 173985) MONTE COOPER (STATE BAR NO. 196746) THERESA A. SUTTON (STATE BAR NO. 211857) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 Attorneys for Plaintiffs THE FACEBOOK, INC. and MARK ZUCKERBERG 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 13 THE FACEBOOK, INC. and MARK ZUCKERBERG, 14 Plaintiffs, 15 v. 16 17 18 CONNECTU, INC. (formerly known as CONNECTU, LLC) PACIFIC NORTHWEST SOFTWARE, INC. WINSTON WILLIAMS, and WAYNE CHANG, Case No. 5:07-CV-01389-JW FACEBOOK, INC.’S OPPOSITION TO MESSRS. WINKLEVOSS AND NARENDRA’S ADMINISTRATIVE REQUEST TO FILE A 15 PAGE OVERSIZED BRIEF IN SUPPORT OF ADMINISTRATIVE REQUEST TO PAY LIENHOLDERS AND COMPLETE THE EXCHANGE OF CONSIDERATION 19 Defendants. Judge: The Honorable James Ware 20 21 22 23 24 25 26 27 28 FACEBOOK’S OPPOSITION TO CU FOUNDERS’ ADMIN REQUEST TO FILE OVERSIZED REQUEST 5:07-CV-01389-JW 1 I. INTRODUCTION 2 The Court should deny Cameron Winklevoss, Tyler Winklevoss, and Divya Narendra’s 3 (the “ConnectU Founders”) Administrative Request for Permission to File a 15 Page Oversized 4 Brief in Support of Administrative Request to Pay Lienholders and Complete the Exchange of 5 Consideration (Dkt. No. 769). The ConnectU Founders’ request should be denied because (1) the 6 ConnectU Founders’ request is substantive and not administrative; and (2) the ConnectU 7 Founders failed to comply with Civil Local Rule 7-11. This request, if it is to be heard at all, 8 should be heard as a Rule 60(b) motion pursuant to Local Rule 7-2, not an “administrative” 9 request under Local Rule 7-11. 10 II. ARGUMENT 11 A. The CU Founders’ Request Is Substantive, Not Administrative 12 Local Rule 7-11 contains a five-page limit for a reason: it is designed to address “minor 13 administrative matters.” Civil L.R. 7-11; see also Dister v. Apple-Bay East, Inc., No. C 07-01377 14 (SBA), 2007 WL 4045429 *4 (N.D. Cal. Nov. 15, 2007). It is not, however, a vehicle for 15 substantive relief. The ConnectU Founders, therefore, should not be afforded additional pages – 16 on an expedited briefing schedule – simply because they seek to disguise a substantive motion as 17 an administrative request. Tuttle v. Sky Bell Asset Mgmt., No. C 10-03588 WHA, 2011 WL 18 767741, * 2 (N.D. Cal. Feb. 28, 2011) (“parties shall not file motions concerning substantive 19 matters disguised as motions concerning miscellaneous administrative matters under Civil Local 20 Rule 7-11”); Spieler v. Mt. Diablo Unified School Dist., No. C 98-0951 CW, 2007 WL 1795701, 21 *3 (N.D. Cal. Jun. 20, 2007). 22 The ConnectU Founders’ admission that their request involves complex issues 23 demonstrates that the relief they seek is not a “minor administrative matter.” Dkt. No. 769 at 24 1:19-20. In their proffered 15-page “administrative” request, the ConnectU Founders ask to 25 amend this Court’s Judgments by seeking to release an escrow, reallocate the moneys and stock 26 held in escrow, change those receiving the consideration, change the stock legends, and ignore 27 potential lawful claimants in currently pending disputes. Decl. of I. Neel Chatterjee in Support of 28 Opp’n to Administrative Request to File Oversized Administrative Req., Exs. 1 (proposed, -1- FACEBOOK’S OPPOSITION TO CU FOUNDERS’ ADMIN REQUEST TO FILE OVERSIZED REQUEST 5:07-CV-01389-JW 1 redacted oversized brief); 2 at 32 (complaint seeking “the proceeds of the settlement of the 2 Facebook Litigation”); and 3. In addition, the ConnectU Founders ask this Court to expedite 3 distribution of their Facebook stock and cash pursuant to the parties Settlement Agreement, while 4 simultaneously asking the District of Massachusetts to vacate its orders of dismissal so they can 5 return to litigating their claims against Facebook – claims that had been released pursuant to the 6 Settlement Agreement. Id. Exs. 4 and 5. Under these circumstances, the ConnectU Founders 7 should not be permitted to file their request at all, let alone one that exceeds the Rule’s limitation 8 by three times. 9 The parties’ litigated and resolved many of the issues the ConnectU Founders now seek to 10 change. Their request to alter this Court’s judgment is distinctly substantive, not administrative. 11 The ConnectU Founders’ request, as a result, is governed by Rule 60. Such a request requires 12 detailed factual investigation before any relief can be granted and is not merely a ministerial 13 administrative task. 14 B. 15 Civil L.R. 7-11(a) requires: A motion for an order concerning a miscellaneous administrative matter . . . must set forth specifically the action requested and the reason supporting the motion and must be accompanied by a proposed order and by either a stipulation under Civil L.R. 7-12 or by a declaration that explains why a stipulation could not be obtained. 16 17 18 19 20 The ConnectU Founders’ Request Is Procedurally Defective The ConnectU Founders filed no stipulation and no declaration, as required by Local Rule 7-11.1 “Failure to comply with the Court’s local rules provides grounds for rejecting [the Founders’] 21 motion.” See Tri Valley Cares v. United States DOE, Case No. C08-1372 SBA, 2010 U.S. Dist. 22 LEXIS 107930, *38 (N.D. Cal., Sept. 30, 2010), citing Grove v. Wells Fargo Fin. Cal., Inc., 606 23 F.3d 577, 582 (9th Cir. 2010). 24 25 The ConnectU Founders also have not provided any justification for exceeding Rule 711’s page limit. To the extent that a party can use Local Rule 7-11 to obtain additional pages for 26 27 28 1 For this same reason, and because it does not comply with Civil L.R. 79-5, the ConnectU Founders’ premature Motion to Seal the yet-to-be filed, oversized brief and supporting declaration should be denied. -2- FACEBOOK’S OPPOSITION TO CU FOUNDERS’ ADMIN REQUEST TO FILE OVERSIZED REQUEST 5:07-CV-01389-JW 1 a request pursuant to the same rule, the party seeking leave must “set forth specifically the action 2 requested and the reasons supporting the motion.” Civil L.R. 7-11(a). The ConnectU Founders 3 have not specified any “reasons” for exceeding the page limit – by three times the maximum – 4 other than to say that “the relevant history is complex and requires additional pages to fully 5 explain.” Dkt. No. 769 at 1. Absent from their argument is any explanation for why a complex 6 description of the history is relevant or necessary to a request for relief on a “minor administrative 7 matter.” Without such a description, the request must be denied. 8 III. 9 CONCLUSION For the foregoing reasons, Facebook respectfully requests that the Court deny the 10 ConnectU Founders’ Administrative Request to File an Oversized Brief. 11 Dated: October 27, 2011 ORRICK, HERRINGTON & SUTCLIFFE LLP 12 /s/ I. Neel Chatterjee /s/ I. Neel Chatterjee Attorneys for Plaintiffs THE FACEBOOK, INC. and MARK ZUCKERBERG 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- FACEBOOK’S OPPOSITION TO CU FOUNDERS’ ADMIN REQUEST TO FILE OVERSIZED REQUEST 5:07-CV-01389-JW

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