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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I. NEEL CHATTERJEE (STATE BAR NO. 173985)
[e-mail]
MONTE COOPER (STATE BAR NO. 196746)
[e-mail]
THERESA A. SUTTON (STATE BAR NO. 211857)
[e-mail]
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

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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THE FACEBOOK, INC. and MARK
ZUCKERBERG,

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Plaintiffs,
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v.
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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

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Defendants.

Judge:

The Honorable James Ware

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FACEBOOK’S OPPOSITION TO CU FOUNDERS’
ADMIN REQUEST TO FILE OVERSIZED REQUEST
5:07-CV-01389-JW

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I.

INTRODUCTION

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The Court should deny Cameron Winklevoss, Tyler Winklevoss, and Divya Narendra’s

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(the “ConnectU Founders”) Administrative Request for Permission to File a 15 Page Oversized

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Brief in Support of Administrative Request to Pay Lienholders and Complete the Exchange of

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Consideration (Dkt. No. 769). The ConnectU Founders’ request should be denied because (1) the

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ConnectU Founders’ request is substantive and not administrative; and (2) the ConnectU

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Founders failed to comply with Civil Local Rule 7-11. This request, if it is to be heard at all,

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should be heard as a Rule 60(b) motion pursuant to Local Rule 7-2, not an “administrative”

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request under Local Rule 7-11.

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II.

ARGUMENT

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A.

The CU Founders’ Request Is Substantive, Not Administrative

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Local Rule 7-11 contains a five-page limit for a reason: it is designed to address “minor

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administrative matters.” Civil L.R. 7-11; see also Dister v. Apple-Bay East, Inc., No. C 07-01377

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(SBA), 2007 WL 4045429 *4 (N.D. Cal. Nov. 15, 2007). It is not, however, a vehicle for

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substantive relief. The ConnectU Founders, therefore, should not be afforded additional pages –

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on an expedited briefing schedule – simply because they seek to disguise a substantive motion as

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an administrative request. Tuttle v. Sky Bell Asset Mgmt., No. C 10-03588 WHA, 2011 WL

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767741, * 2 (N.D. Cal. Feb. 28, 2011) (“parties shall not file motions concerning substantive

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matters disguised as motions concerning miscellaneous administrative matters under Civil Local

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Rule 7-11”); Spieler v. Mt. Diablo Unified School Dist., No. C 98-0951 CW, 2007 WL 1795701,

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*3 (N.D. Cal. Jun. 20, 2007).

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The ConnectU Founders’ admission that their request involves complex issues

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demonstrates that the relief they seek is not a “minor administrative matter.” Dkt. No. 769 at

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1:19-20. In their proffered 15-page “administrative” request, the ConnectU Founders ask to

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amend this Court’s Judgments by seeking to release an escrow, reallocate the moneys and stock

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held in escrow, change those receiving the consideration, change the stock legends, and ignore

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potential lawful claimants in currently pending disputes. Decl. of I. Neel Chatterjee in Support of

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Opp’n to Administrative Request to File Oversized Administrative Req., Exs. 1 (proposed,
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FACEBOOK’S OPPOSITION TO CU FOUNDERS’
ADMIN REQUEST TO FILE OVERSIZED REQUEST
5:07-CV-01389-JW

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redacted oversized brief); 2 at 32 (complaint seeking “the proceeds of the settlement of the

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Facebook Litigation”); and 3. In addition, the ConnectU Founders ask this Court to expedite

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distribution of their Facebook stock and cash pursuant to the parties Settlement Agreement, while

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simultaneously asking the District of Massachusetts to vacate its orders of dismissal so they can

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return to litigating their claims against Facebook – claims that had been released pursuant to the

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Settlement Agreement. Id. Exs. 4 and 5. Under these circumstances, the ConnectU Founders

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should not be permitted to file their request at all, let alone one that exceeds the Rule’s limitation

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by three times.

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The parties’ litigated and resolved many of the issues the ConnectU Founders now seek to

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change. Their request to alter this Court’s judgment is distinctly substantive, not administrative.

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The ConnectU Founders’ request, as a result, is governed by Rule 60. Such a request requires

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detailed factual investigation before any relief can be granted and is not merely a ministerial

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administrative task.

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B.

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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.

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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’]

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motion.” See Tri Valley Cares v. United States DOE, Case No. C08-1372 SBA, 2010 U.S. Dist.

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LEXIS 107930, *38 (N.D. Cal., Sept. 30, 2010), citing Grove v. Wells Fargo Fin. Cal., Inc., 606

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F.3d 577, 582 (9th Cir. 2010).

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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

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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.
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FACEBOOK’S OPPOSITION TO CU FOUNDERS’
ADMIN REQUEST TO FILE OVERSIZED REQUEST
5:07-CV-01389-JW

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a request pursuant to the same rule, the party seeking leave must “set forth specifically the action

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requested and the reasons supporting the motion.” Civil L.R. 7-11(a). The ConnectU Founders

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have not specified any “reasons” for exceeding the page limit – by three times the maximum –

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other than to say that “the relevant history is complex and requires additional pages to fully

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explain.” Dkt. No. 769 at 1. Absent from their argument is any explanation for why a complex

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description of the history is relevant or necessary to a request for relief on a “minor administrative

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matter.” Without such a description, the request must be denied.

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III.

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CONCLUSION
For the foregoing reasons, Facebook respectfully requests that the Court deny the

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ConnectU Founders’ Administrative Request to File an Oversized Brief.

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Dated: October 27, 2011

ORRICK, HERRINGTON & SUTCLIFFE LLP

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/s/ I. Neel Chatterjee /s/
I. Neel Chatterjee
Attorneys for Plaintiffs
THE FACEBOOK, INC. and MARK
ZUCKERBERG

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FACEBOOK’S OPPOSITION TO CU FOUNDERS’
ADMIN REQUEST TO FILE OVERSIZED REQUEST
5:07-CV-01389-JW