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

Filing 114

Memorandum in Opposition re 103 MOTION to Strike Plaintiffs' Extrinsic Speaking Evidence Submitted in Support of Their Opposition to Motion to Dismiss filed byCrunchPad, Inc., Interserve, Inc.. (Bloch, David) (Filed on 5/10/2010)

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101 California Street San Francisco, CA 94111-5802

Andrew P. Bridges (SBN: 122761) [e-mail] David S. Bloch (SBN: 184530) [e-mail] Matthew A. Scherb (SBN: 237461) [e-mail] WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111-5802 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs INTERSERVE, INC. dba TECHCRUNCH and CRUNCHPAD, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA INTERSERVE, INC. dba TECHCRUNCH, a Delaware corporation, and CRUNCHPAD, INC., a Delaware corporation, Plaintiffs, vs. FUSION GARAGE PTE. LTD., a Singapore company, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-09-5812 RS (PVT) PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO STRIKE Date: Time: Place: May 13, 2010 1:30 p.m. Courtroom 3, 17th Floor.

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Winston & Strawn LLP

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PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO STRIKE

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101 California Street San Francisco, CA 94111-5802

Rather than confront the overwhelming evidence of its fraud, Fusion Garage is seeking to distract the Court from it and, if possible, exclude it. But the "extrinsic evidence" that Fusion Garage criticizes is properly before the Court. Moreover, that evidence serves only to validate (and, indeed, prove) rather than supplement or supplant the allegations in Interserve's and CrunchPad's Complaint. Fusion Garage's motion to strike "plaintiff's extrinsic evidence" has three independent and fatal flaws, and the Court should deny the motion. First, Fusion Garage did not move to dismiss only under Federal Rule of Civil Procedure 12 (b)(6). It also moved to dismiss for lack of jurisdiction under Rule 12 (b)(1). In doing so, Fusion Garage attacked not merely the adequacy but also the truthfulness of the allegations in the complaint. This, in turn, allows the Court to consider additional evidence outside the complaint's four corners. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) ("In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment"). Fusion Garage also moved for a more definite statement under Rule 12 (e) and moved to strike under Rule 12 (f). These are also evidentiary motions that allow the Court to consider evidence beyond the complaint itself. See Fed. R. Civ. Proc. 12 (d) (courts should exclude additional matter outside the pleadings only in the Rule 12 (b)(6) or Rule 12 (c) context). Because Fusion Garage did not restrict its motion to Rule 12 (b)(6), Interserve and CrunchPad were well within their rights to submit evidence in support of their opposition papers. The documents prove that the complaint's allegations of fraud, false advertising, unfair competition, and misappropriation of business ideas are true, thus defeating Fusion Garage's motions under Rules 12 (b)(1), 12 (e), and 12 (f). The mere fact that Fusion Garage also has filed a motion under Rule 12 (b)(6) does not restrict evidence rebutting Fusion Garage's arguments under other portions of Rule 12. Fusion Garage apparently acknowledged this but buried its admission in a footnote. See Motion to Strike, Dkt. No. 103, at 1 n. 1. Second, no rule of federal evidence or procedure states that a party filing an opposition to a motion--including a motion to dismiss under Rule 12(b)(6)--cannot submit evidence in support of its opposition. The cases and treatise cited by Fusion Garage say only that a plaintiff cannot use its opposition memorandum to allege new facts or otherwise "amend" the allegations in the complaint. 2
PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO STRIKE

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Winston & Strawn LLP

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101 California Street San Francisco, CA 94111-5802

See Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197, n.1 (9th Cir. 1998) (discussing " `new' allegations"). Interserve and CrunchPad have not sought to change the allegations or allege new critical facts; their original complaint more than satisfied their notice pleading obligations. Instead, they have submitted evidence--which was not manifest when they sued Fusion Garage-- supporting and confirming their original allegations. The Court is free to consider that evidence to determine which inferences can reasonably be drawn from the allegations in the Complaint. But the Complaint does not rise and fall on, and does not take a different turn based on, these Fusion Garage materials. Thus the Court need not strike the evidence even if the Court entirely disregards it. Third, the documents reveal the disingenuous nature of Fusion Garage's Rule 12 motions. There is no doubt that Fusion Garage understands the claims against it under Rules 8 and 9. It is beyond controversy that Interserve and CrunchPad have "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). Indeed, with these documents, Fusion Garage will struggle in vain to deny the Complaint's factual allegations. It is small wonder, then, that Fusion Garage attempts, also in vain, to attack the pleadings instead. Granting Fusion Garage's motion to dismiss and for a more definite statement would be pointless, given the wealth of evidence supporting Interserve's and CrunchPad's claims and Fusion Garage's awareness of that evidence. See also Reply to Opposition to Motion for Preliminary Injunction, Dkt. No. 109 (describing additional evidence of Fusion Garage's fraud and perfidy). For these reasons, the Court should deny Defendant's motion to strike the Declaration of Matthew Scherb in Opposition to Fusion Garage's Motion to Dismiss the Complaint, and its exhibits A through J. Respectfully submitted, Dated: May 10, 2010. WINSTON & STRAWN LLP

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Winston & Strawn LLP

By:

/s/ David S. Bloch Andrew P. Bridges David S. Bloch Matthew A. Scherb Attorneys for Plaintiffs

SF:281187.3

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PLAINTIFFS' OPPOSITION TO DEFENDANT'S MOTION TO STRIKE