Facebook, Inc. v. Studivz, Ltd et al

Filing 13

MOTION to Shorten Time filed by Facebook, Inc.. (Attachments: # 1 Proposed Order)(Avalos, Julio) (Filed on 9/9/2008)

Facebook, Inc. v. Studivz, Ltd et al

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GARY E. WEISS (STATE BAR NO. 122962) [e-mail] m I. NEEL CHATTERJEE (STATE BAR NO. 173985) [e-mail] JULIO C. AVALOS (STATE BAR NO. 255350) javalo [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] WARRINGTON S. PARKER (STATE BAR NO. 148003) [e-mail] m ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., Plaint iff, v. STUDIVZ LTD., VERLAGSGRUPPE GEORG VON HOLTZBRINCK GmBH, HOTLZBRINCK NETWORKS GmBH, HOLTZBRINCK VENTURES GmBH, and DOES 1-25, Defendant.

Case No. 5:08-cv-03468 JF FACEBOOK'S NOTICE OF MOTION AND MOTION TO CHANGE TIME UNDER CIVIL L.R. 6-3 Date: Time: Room.: Judge: Pending Determination of Motion ______ a.m. Courtroom 2, 5th Floor Honorable Magistrate Judge Howard R. Lloyd, for Discovery Purposes

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FACEBOOK'S NOTICE O F MOTION AND MOTION TO CHANGE TIME UNDER CIVIL LOCAL RULE 6-3 CASE NO.: 5:08-CV-03468

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NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Pursuant to Civil Local Rule 6-3, Plaintiff Facebook, Inc. ("Facebook") respectfully moves for an order shortening time and for an expedited hearing on Facebook's Motion for Expedited Personal Jurisdiction Discovery. Facebook has met and conferred with counsel for the StudiVZ Defendants ("StudiVZ") and the parties been unable to resolve their disputes about the matters at issue in the Motion for Expedited Personal Jurisdiction Discovery. Accordingly, Facebook requests entry of an order shortening time for the hearing on its Motion for Expedited Personal Jurisdiction Discovery so that the issues raised can be heard and decided in an expedited fashion and that the parties can begin to collect discovery on the important threshold issue of personal jurisdiction. This motion to shorten time is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities, the Declaration of Julio C. Avalos in support of Facebook's Motion for Expedited Personal Jurisdiction Discovery ("Avalos Decl."), the record of this case, and any other argument or evidence that may be presented on any hearing of this Motion. By this Motion, Facebook respectfully requests that this Court hear the Motion for Expedited Personal Jurisdiction Discovery no later than Tuesday, September 23, 2008 at 10:00 a.m. MEMORANDUM OF POINTS AND AUTHORITIES Facebook and StudiVZ are in agreement that StudiVZ will move to dismiss for lack of personal jurisdiction and that Facebook is entitled to personal jurisdiction discovery from StudiVZ. However, StudiVZ has refused to agree to an expedited schedule for such discovery and has insisted upon keeping to its current strategy of delay and unnecessary gamesmanship. Through a series of procedural maneuvers detailed in the Motion for Expedited Personal Jurisdiction Discovery, StudiVZ and its counsel have succeeded in delaying this litigation for months and insist upon delaying it further, jeopardizing Facebook's possible injunctive remedies and increasing the harm caused to Facebook by StudiVZ's continued use of Facebook's stolen intellectual property. Having failed to reach agreement on these issues through the meet and
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confer process, Facebook has been forced to bring a motion for personal jurisdiction discovery. Facebook respectfully requests that its Motion For Expedited Personal Jurisdiction Discovery be heard by September 23, 2008. I. STUDIVZ'S CONTINUED PATTERN OF UNNECESSARY DELAY TACTICS JEOPARDIZE FACEBOOK'S ABILITY TO SECURE ADEQUATE RELIEF AND JUSTIFIES AN EXPEDITED SCHEDULE FOR PERSONAL JURISDICTION DISCOVERY. As explained in more detail in the Motion for Expedited Personal Jurisdiction Discovery, StudiVZ has resorted to unreasonable delay tactics at every step in this litigation. Indeed, StudiVZ's delay strategy reaches back to even before the onset of formal litigation, when it requested in bad faith additional t ime from Facebook to resolve this dispute and then used that time to file its own action against Facebook for declaratory relief in Germany. As explained in the Motion for Expedited Personal Jurisdiction Discovery, in the six weeks since it received a copy of the complaint filed against it, StudiVZ has repeatedly affirmed and reaffirmed its desire to challenge this Court's personal jurisdiction over it. See Avalo s Decl., at ¶ ¶ 7, 15 - 16. StudiVZ's counsel has agreed that Facebook is entitled to personal jurisdiction discovery. See Avalos Decl., at ¶ 15 - 16. However, when Facebook attempted to schedule that discovery, StudiVZ's counsel claimed for the first time that it was unsure as to whether it would in fact challenge personal jurisdiction, and that in any event, it required over three months from the time it received the complaint to decide whether such a motion would be brought. See Avalos Decl., at ¶ 17. StudiVZ's argument is not credible. Nor is its plea that it is being "rushed" into a decision six weeks after having received a copy of Facebook's complaint. See Avalos Decl. at ¶ 17. Indeed, StudiVZ's real reasons for refusing to agree to schedule personal jurisdiction discovery are simply its obvious and continued desire to delay this litigation as much as possible, to minimize Facebook's chances of efficiently uncovering information that would give rise to injunctive remedies, and to continue to benefit from its theft of Facebook's intellectual property. In compliance with Civil L.R. 37-1(a), Facebook and StudiVZ met and conferred to resolve this dispute on September 2, 2008, but were unable to reach a resolution. Unless this
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Court agrees to shorten time upon which to hear Facebook's Motion for Expedited Personal Jurisdiction Discovery, Facebook will not be heard until October 14, 2008, at the earliest, or nearly three months after StudiVZ received a copy of the complaint filed against it. StudiVZ will not be prejudiced by proceeding on an expedited basis. It has had at least two law firms representing it in this litigation since July and has been preparing to move for lack of personal jurisdiction for nearly two months, far longer than defendants in typical domestic litigation. On the other hand, Facebook will be prejudiced if its motion is not heard on an expedited basis. Each passing day decreases Facebook's chances of obtaining injunctive relief. By shielding itself from service first by instructing its local California counsel not to accept service on its behalf then by forcing Facebook to resort to the expensive and time-consuming vagaries of the Hague Convention and service through local German authorities, only to buy itself months of additional time by agreeing to waive service of process when service through those authorities seemed imminent, StudiVZ has gamed the system and caused substantial delay, expense and hardship to Facebook. Every day of delay furthers StudiVZ's strategy of solidifying and expanding its user base through the illegal use of Facebook's intellectual property. Shortening time for the Court to hear Facebook's motion would be the first modification of time in this case and would not have any effect on the schedule for the case. II. REQUESTED RELIEF For the above reasons, Facebook respectfully requests an order shortening the time for the Court to hear Facebook's Motion for Expedited Personal Discovery from October 14, 2008 to September 23, 2008.

Dated: September 9, 2008

ORRICK, HERRINGTON & SUTCLIFFE LLP

/s/ Julio C. Avalos /s/ JULIO C. AVALOS Attorneys for Plaintiff FACEBOOK, INC.

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CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on September 9, 2008. Dated: September 9, 2008. Respect fully submitted, /s/ Julio C. Avalos /s/ Julio C. Avalos

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FACEBOOK'S NOTICE O F MOTION AND MOTION TO CHANGE TIME PURSUANT TO LOCAL RULE 6-3 CASE NO.: 5:08-CV-03468