Interserve, Inc. et al v. Fusion Garage PTE. LTD

Filing 103

MOTION to Strike Plaintiffs' Extrinsic Speaking Evidence Submitted in Support of Their Opposition to Motion to Dismiss filed by Fusion Garage PTE. LTD. (Attachments: # 1 Proposed Order)(Doolittle, Patrick) (Filed on 5/3/2010)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Claude M. Stern (Bar No. 96737) 2 [e-mail] Patrick Doolittle (Bar No. 203659) 3 [e-mail] 50 California Street, 22nd Floor 4 San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Defendant Fusion Garage PTE Ltd. 7 8 9 10 11 12 INTERSERVE, INC. dba TECHCRUNCH, a Delaware corporation, and CRUNCHPAD, 13 INC., a Delaware corporation, 14 15 vs. Plaintiffs, CASE NO. C 09-cv-5812 RS MOTION TO STRIKE PLAINTIFFS' EXTRINSIC SPEAKING EVIDENCE SUBMITTED IN SUPPORT OF THEIR OPPOSITION TO MOTION TO DISMISS Date: May 13, 2010 Time: 1:30 p.m. Judge: Hon. Richard Seeborg UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

16 FUSION GARAGE PTE LTD., a Singapore company, 17 Defendant. 18 19 20 21 22 23 24 25 26 27 28
04049.51632/3480021.1

Case No. C 09-cv-5812 RS MOTION TO STRIKE PLAINTIFFS' EXTRINSIC SPEAKING EVIDENCE SUBMITTED IN SUPPORT OF THEIR OPPOSITION TO MOTION TO DISMISS

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MOTION TO STRIKE Fusion Garage PTE Ltd. ("Fusion Garage") hereby objects to, and moves to strike, the

3 Scherb Declaration and Exhibits A-J thereto that plaintiffs submitted in support of their 4 Opposition Brief to Fusion Garage's Motion to Dismiss. Fusion Garage's Motion to Dismiss was, 5 with one exception,1 brought under Federal Rule of Civil Procedure 12(b)(6). A court generally 6 cannot consider material outside the complaint in adjudicating a motion to dismiss under Rule 7 12(b)(6). Specifically, a court cannot consider evidence that a plaintiff attaches to its 12(b)(6) 8 opposition papers. See Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 9 1998) ("In determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the 10 complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's 11 motion to dismiss") (emphasis in original); 2 Moore's Fed. Prac. § 12.34[2] (3d. ed. 2009) ("The 12 court may not, for example, take into account additional facts asserted in a memorandum opposing 13 the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a)"). 14 However, a court may consider exhibits attached to the complaint as well as documents alleged in 15 the complaint, whose authenticity no party questions, but which are not physically attached to the 16 pleading. Capcom Co., Ltd. v. MKR Group, Inc. 2008 WL 4661479 at *3 (N.D. Cal. 2008) 17 (Seebog, J.). 18 Plaintiffs here rely on a set of extrinsic evidence to save their pleading. Their submission

19 is a key admission that the claims in their complaint fail (since they apparently believe that they 20 need speaking evidence to save such claims). Nevertheless, these documents were neither 21 attached to the complaint nor referenced in it. This submission was improper and plaintiffs 22 23 The one exception involves Fusion Garage's motion to dismiss plaintiffs' Lanham Act claim for lack of standing, which was brought in part under Fed. R. Civ. P. 12(b)(1). However, 25 plaintiffs have attempted to use the Scherb Declaration and Exhibits to support arguments that are 26 far removed from standing under the Lanham Act. For instance, plaintiffs have invoked this evidence to support their fraud claim (Opp. Br. (Dkt. 81) at 15); the merits of their Lanham Act 27 claim (id. at 8); and have also peppered this evidence throughout their Introduction and Statement of Facts. (Id. at 1-4). 28 049.51632/3480021.1 Case No. C 09-cv-5812 RS -1MOTION TO STRIKE PLAINTIFFS' EXTRINSIC SPEAKING EVIDENCE SUBMITTED IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

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1 nowhere provide a legal basis for the Court to consider the speaking evidence. The Court should 2 strike the evidence. 3 4 DATED: May 3, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
049.51632/3480021.1

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By

/s/ Patrick Doolittle Patrick C. Doolittle Attorneys for Defendant Fusion Garage PTE Ltd,

Case No. C 09-cv-5812 RS -2MOTION TO STRIKE PLAINTIFFS' EXTRINSIC SPEAKING EVIDENCE SUBMITTED IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT'S MOTION TO DISMISS