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

Filing 234

Statement of Non-Opposition re 230 MOTION to Withdraw as Attorney Quinn Emanuel's Motion to Withdraw as Counsel for Fusion Garage PTE. LTD. and Request For Further Relief filed byCrunchPad, Inc., Interserve, Inc.. (Attachments: # 1 Proposed Order)(Related document(s) 230 ) (Bloch, David) (Filed on 12/27/2011)

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David S. Bloch (SBN: 184530)
[e-mail]
J. Caleb Donaldson (SBN: 257271)
[e-mail]
WINSTON & STRAWN LLP
101 California Street
San Francisco, CA 94111-5802
Telephone: (415)
591-1000
Facsimile: (415)
591-1400

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Attorneys for Plaintiffs

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Winston & Strawn LLP

UNITED STATES DISTRICT COURT

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101 California Street
San Francisco, CA 94111-5802

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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TECHCRUNCH, INC., et al.
Plaintiffs,
vs.
FUSION GARAGE PTE. LTD.,
Defendant.

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Case No. 3:09-cv-05812 RS (PSG)
NON-OPPOSITION AND REQUEST FOR
FURTHER RELIEF REGARDING QUINN
EMANUEL’S MOTION TO WITHDRAW
AS COUNSEL OF RECORD FOR
DEFENDANT FUSION GARAGE PTE.
LTD.

Pursuant to Civil Local Rule 7-3(b), plaintiffs TechCrunch, Inc. and CrunchPad, Inc., do not
oppose Quinn Emanuel’s motion to withdraw as counsel for Fusion Garage (Dkt. No. 230). We
recognize that Quinn Emanuel has been put in an untenable situation by Fusion Garage and that a
law firm should not be forced to continue representing a client that is both nonresponsive and
unwilling to pay its lawyers.
At the same time, this case has been pending since 2009, and justice delayed is justice
denied. Fusion Garage should not be permitted a holiday from this litigation through the expedient
of cheating its counsel. The case was stayed between September and November 2011 so the parties
could consummate a settlement agreement. See Dkt. Nos. 216, 218, 219, and 220. The settlement
fell through, and we now know that Fusion Garage stopped paying its counsel long before. See
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Case No. 3:09-cv-05812 RS (PSG)
NOTICE OF NON-OPPOSITION TO
QUINN EMANUEL’S MOTION TO WITHDRAW

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Declaration of Claude M. Stern, Dkt No. 230-1 at ¶ 3 (Fusion Garage has not paid Quinn Emanuel

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since at least its motion to compel on September 9, 2011). The Court should not let Fusion Garage

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further delay TechCrunch’s case.

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It is well settled that corporations cannot represent themselves. Civil Local Rule 3-9. When

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a corporate party’s counsel withdraws and there is no substitute counsel, courts should normally set a

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tight deadline by which that party should secure new counsel or face default. See Windermere

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Holdings, LLC v. U.S. Wall Decor, LLC, No. C 10–03955 LB, 2011 WL 3419467 (N.D. Cal. Aug.

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4, 2011) (Beeler, M.J.) (setting a status conference 21 days after the date of the order granting

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counsel’s motion to withdraw and warning defendants “that if they fail to timely file substitutions of

Winston & Strawn LLP

101 California Street
San Francisco, CA 94111-5802

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counsel or otherwise appear, they may face [plaintiff’s] motion for default judgment”); Waters v.

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E.P. Architectural Builders, Inc., No. C 10-03193 LB, 2011 WL 482769, at *3 (N.D. Cal. Feb. 7,

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2011) (Beeler, M.J.) (giving corporate defendant 30 days from the date of the order to file a

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substitution of counsel, and instructing Plaintiff to move for entry of default if no substitution is

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filed); Chevron TIC, Inc. v. Carbone Properties Manager, LLC, No. C-08-0782 (JCS), 2009 WL

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929060, at *8 (N.D. Cal. April 3, 2009) (Spero, M.J.) (granting default judgment against a corporate

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defendant after that defendant failed to secure substitute counsel); Madison v. Fonar Corp., No. C-

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07-04211 RMW, 2009 WL 195897, at *1 (N.D. Cal. Jan. 23, 2009) (Whyte, J.) (granting motion to

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withdraw and ordering Defendant to secure new counsel within 14 days or face a motion for the

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entry of default); Apple Computer Inc. v. Micro Team, 2000 WL 1897354, *2 and *11 (N.D. Cal.

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Dec. 21, 2000) (Trumbull, M.J.) (court entered default after granting motion to withdraw and

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simultaneously ordering defendant to appear 14 days later and show cause why default should not be

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entered for failure to defend). Thus, if Fusion Garage cannot find new lawyers, it must show cause

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why a default should not issue. And under prevailing Northern District practice, its window to find

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new counsel should be small: between two weeks and one month.

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If instead some new law firm decides to roll the dice on Fusion Garage, the Court should

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immediately order the parties to mediation--in strict compliance with the Northern District of

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California’s ADR Rules, specifically including ADR Local Rule 6-10(a)(1)--to see if the case can

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be resolved without further expenditure of judicial resources. In addition, if the case proceeds, the
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Case No. 3:09-cv-05812 RS (PSG)
NOTICE OF NON-OPPOSITION TO
QUINN EMANUEL’S MOTION TO WITHDRAW

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discovery responses TechCrunch and CrunchPad have been waiting for since September, 2011

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should be served with all possible speed. The plaintiffs’ Eighth Set of Requests for Production and

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its Fourth Set of Interrogatories were served on August 26, 2011; they were originally due on

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September 30 and then the response deadline was extended to December 16, 2011. Dkt Nos. 221

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and 222. As a courtesy, TechCrunch agreed to suspend these deadlines (which it was fully prepared

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to comply with), but it does not want to wait indefinitely for Fusion Garage to comply with its

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discovery obligations.

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Winston & Strawn LLP

101 California Street
San Francisco, CA 94111-5802

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So while TechCrunch and CrunchPad do not oppose Quinn Emanuel’s motion, they ask for
the following relief to protect them from unwarranted prejudice:
1. The Court should issue an Order to Show Cause Why Default Should Not Be Entered, set
for hearing no more than 21 days after Quinn Emanuel’s motion is granted.
2. If Fusion Garage does not retain new counsel before the hearing date on the Order to

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Show Cause, default should be entered against Fusion Garage and in favor of

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TechCrunch and CrunchPad. TechCrunch and CrunchPad will then promptly notice a

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prove-up hearing for an award of damages and entry of default judgment.

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3. If Fusion Garage obtains counsel on or before the Order to Show Cause date, the Court
should issue
a. a referral to Magistrate Judge Laporte, sitting as the judge charged with

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overseeing the Northern District of California’s ADR program, to address issues

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arising out of the prior mediation between the parties;

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b. an order referring the case to a magistrate judge for mediation under the auspices

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of this Court and in full compliance with the Alternative Dispute Resolution

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(ADR) Local Rules; and

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c. an order setting discovery deadlines to replace those suspended by stipulation and

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Order of this Court dated December 16, 2011 (Dkt. No. 233), as set forth in the

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attached Proposed Order.

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TechCrunch and CrunchPad have no wish to sa ddle Quinn Emanuel with a de adbeat client.
But they deserve a speedy resolution of this case. To that end, the plaintiffs do not oppose Quinn
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Case No. 3:09-cv-05812 RS (PSG)
NOTICE OF NON-OPPOSITION TO
QUINN EMANUEL’S MOTION TO WITHDRAW

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Emanuel’s Motion, bu t do seek su ch relief as will en sure that the case is broug ht to as qu ick a

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conclusion as possible, as set forth above and in the attached Proposed Order.

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Respectf

ully submitted,

Dated: December 27, 2011

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WINSTON & STRAWN LLP

By:

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/s/ David S. Bloch
David S. Bloch
J. Caleb Donaldson
Attorneys for Plaintiffs TechCrunch Inc. and
CrunchPad, Inc.

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Winston & Strawn LLP

101 California Street
San Francisco, CA 94111-5802

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Case No. 3:09-cv-05812 RS (PSG)
NOTICE OF NON-OPPOSITION TO
QUINN EMANUEL’S MOTION TO WITHDRAW