Facebook, Inc. v. Studivz, Ltd et al

Filing 69

Brief re 42 MOTION to Dismiss for Lack of Personal Jurisdiction or, in the alternative, for Forum Non Conveniens, 41 MOTION to Dismiss for Lack of Personal Jurisdiction or, in the alternative, for Forum Non Conveniens filed byStudivz, Ltd, Holtzbrinck Networks GmbH, Holtzbrinck Ventures GmbH. (Related document(s) 42 , 41 ) (Walker, William) (Filed on 12/18/2008)

Facebook, Inc. v. Studivz, Ltd et al

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GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

STEPHEN S. SMITH (SBN 166539) [e-mail] WILLIAM M. WALKER (SBN 145559) [e-mail] AARON J. MOSS (SBN 190625) [e-mail] GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: [phone] Fax: [phone] Attorneys for Defendant StudiVZ Ltd. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FACEBOOK, INC., Plaintiff, v. STUDIVZ LTD., VERLAGSGRUPPE GEORG VON HOLTZBRINCK GmbH, HOLTZBRINCK NETWORKS GmbH, HOLTZBRINCK VENTURES GmbH, and DOES 125, Defendant. Case No. 5:08-CV-03468 JF Assigned To: Hon. Jeremy Fogel SUPPLEMENTAL MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTIONS TO DISMISS FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, FOR FORUM NON CONVENIENS TO INFORM COURT OF NEW GERMAN ACTION [Declaration of William M. Walker and Supporting Exhibit Filed Concurrently Herewith] Date: February 13, 2009 Time: 9:00 a.m. Dept./Place: Courtroom 3 Complaint Filed: July 18, 2008

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Supplemental Memorandum in Support of Motions to Dismiss

Dockets.Justia.com

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GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

Defendants StudiVZ Ltd. ("StudiVZ"), Holtzbrinck Networks GmbH ("Networks") and Holtzbrinck Ventures GmbH ("Ventures") (collectively "Defendants") respectfully seek permission to file this supplemental memorandum in support of their Motions to Dismiss for Lack of Personal Jurisdiction or, in the alternative, for Forum Non Conveniens (the "Motions"). (Docket Nos. 41, 42). After Defendants' Motions were filed in November, plaintiff Facebook, Inc. ("Facebook") filed a new lawsuit against StudiVZ in Cologne, Germany. Facebook's lawsuit is based upon the identical facts and conduct as Facebook's California action against StudiVZ and the other defendants (the "California Action"). The fact that there are now two German actions between the parties on these same issues that are raised in this California Action weighs heavily in favor of a forum non conveniens ruling in this Court. Defendants seek to bring this information to the Court's attention now (rather than in their forthcoming reply memorandum), in order to give Facebook an opportunity to address these issues in its opposition to the Motions. I. BACKGROUND As discussed in the Motions, Facebook, Inc. ("Facebook") filed the California Action on the same day that StudiVZ filed its own lawsuit against Facebook in the Landgericht Stuttgart (district court Stuttgart) in Stuttgart, Germany (the "First German Action"). In the First German Action, StudiVZ seeks a declaratory judgment that StudiVZ does not infringe or violate any of Facebook's rights. Defendants brought the Motions because: (1) they lack sufficient contacts with California for this Court to exercise jurisdiction over them; and (2) Germany is the proper forum to resolve the parties' disputes. As discussed in the Motions, (a) there is already a German action between StudiVZ and Facebook; (b) all of Defendants' alleged actions took place in Germany; ///
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(c) Facebook alleges that it has suffered harm primarily in Germany and other parts of Europe; (d) all of the people who could have possibly engaged in the conduct alleged by Facebook are located in Germany; (e) those witnesses speak German as their native language, and most would require translators to testify in a United States legal proceeding; and (f) nearly all of the documents related to Facebook's allegations are located in Germany, and the vast majority of those documents are written in German, thus requiring huge translation costs to be used in a United States legal proceeding. (See, e.g. Brehm Decl. ¶ 18) (Docket No. 47). II. FACEBOOK HAS NOW FILED ITS OWN LAWSUIT IN GERMANY. Since Defendants' Motions were filed last month, Germany's connection to the parties' dispute has grown significantly. On November 19, 2008, Facebook filed a lengthy response in the First German Action, presenting all of Facebook's defenses and evidence (the "Response") (Declaration of Dr. Anton G. Maurer ["Maurer Decl."], ¶ 4(d); Ex. O) (Docket No. 65); (Declaration of William M. Walker ["Walker Decl."], ¶¶ 3-4). On the same day, Facebook filed an eighty-eight page long, single-spaced Complaint at the "Landgericht Köln" (district court Cologne), in Cologne, Germany against StudiVZ (the "Second German Action") (Exhibit "B1" to Facebook's Response in the First German Action). (Maurer Decl., ¶ 4(d)) (Docket No. 65). The Second German Action is based on the identical facts and conduct as the California Action and seeks affirmative relief against StudiVZ (including monetary damages, injunctive relief, and an accounting). (Walker Decl., ¶¶ 4-6; Ex. F, pp. 2-3). /// /// ///
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2 Supplemental Memorandum in Support of Motions to Dismiss

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III.

WITH THE SECOND GERMAN ACTION, EVEN FACEBOOK ACKNOWLEDGES THAT GERMANY IS THE PROPER FORUM. Putting aside its lack of merit, Facebook's dispute against StudiVZ does not

belong in a California court. The fact that Facebook has now filed its own lawsuit in Germany against StudiVZ lays to rest any question that Germany is the proper forum for the parties' disputes. The Second German Action was filed by Facebook following threats to do so that began more than two and one half years ago. On June 8, 2006, Facebook's German counsel sent StudiVZ a demand letter written in German, invoking German law, and threatening a lawsuit in Germany. (Declaration of Stephen S. Smith ["Smith Decl."], ¶ 22; Exs. K-L) (Docket Nos. 64, 64-9, 64-10). Thereafter, on January 3, 2007, Facebook sent StudiVZ another demand letter. It was also drafted by a German law firm, written in German, invoked German law and threatened to sue in Germany. (Smith Decl., ¶ 23; Exs. M-N) (Docket Nos. 64, 64-11, 64-12). Only after StudiVZ filed the First German Action against Facebook did Facebook follow through on its threat to sue StudiVZ in Germany. Notably, Facebook filed the Second German Action after Defendants filed their Motion to Dismiss for Forum non Conveniens in this Court. Facebook's filing of the Second German Action particularly impacts factors six and seven of the Ninth Circuit's seven factor forum non conveniens test. CoreVent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1487-88 (9th Cir. 1993). Factor six considers whether Facebook would be able to obtain effective relief in another forum. Now that Facebook is the plaintiff in the Second German Action, in which it seeks several forms of affirmative relief (including but not limited to monetary and injunctive relief and an accounting), there can be no doubt that Facebook will be able to achieve effective relief there if its complaint has merit.
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3 Supplemental Memorandum in Support of Motions to Dismiss

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Factor seven considers the existence of an alternative forum. Facebook bears the burden of proving that an alternative forum is unavailable. Core-Vent, 11 F.3d at 1490. Not only is an alternate forum available in Germany (both in Stuttgart and Cologne), but Facebook itself has acknowledged the existence of that forum for more than two and one half years (beginning with the sending of its first German demand letter), and has now purposefully availed itself of that alternative forum by filing a lengthy and comprehensive lawsuit there. Simply stated, the Second German Action solidifies the already extremely close connection between Germany and the parties. Because the Second German Action is based on the identical facts and conduct as the California Action, and because it seeks affirmative relief against StudiVZ (including monetary damages), there is no rational reason for the California Action to proceed. Therefore, for this reason, as well as all the reasons previously set forth in the Motions (and those that may be set forth in any Reply memoranda), Defendants respectfully request that the Court grant the Motions to Dismiss.

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DATED: December 18, 2008

GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP By: /s Stephen S. Smith . STEPHEN S. SMITH Attorneys for Defendant STUDIVZ LTD.

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4 Supplemental Memorandum in Support of Motions to Dismiss