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

Filing 42

Amended MOTION to continue the hearing to May 27, 2010 or another date convenient on the Court's calendar filed by Fusion Garage PTE. LTD. (Doolittle, Patrick) (Filed on 4/1/2010)

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1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Claude M. Stern (Bar No. 96737) 2 claudestern@quinnemanuel.com Patrick Doolittle (Bar No. 203659) 3 patrickdoolittle@quinnemanuel.com 50 California Street, 22nd Floor 4 San Francisco, California 94111 Telephone: (415) 875-6600 5 Facsimile: (415) 875-6700 6 Attorneys for Defendant Fusion Garage PTE Ltd. 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CASE NO. C 09-cv-5812 RS FUSION GARAGE'S REVISED EX PARTE MOTION FOR ADMINISTRATIVE RELIEF OR, IN THE ALTERNATIVE, MOTION TO CHANGE TIME REGARDING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND FUSION GARAGE'S MOTION TO DISMISS 11 INTERSERVE, INC. dba TECHCRUNCH, a Delaware corporation, and CRUNCHPAD, 12 INC., a Delaware corporation, 13 14 vs. Plaintiffs, 15 FUSION GARAGE PTE LTD., a Singapore company, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28 04049.51632/3416107.1 Case No. 09-cv-5812 RS FUSION GARAGE'S REVISED MOTION FOR ADMINISTRATIVE RELIEF 1 2 Introduction On March 30, 2010, 2010, Defendant Fusion Garage PTE, Ltd. ("Fusion Garage") filed a 3 motion to set the hearing dates on Fusion Garage's Motion to Dismiss, to Strike, and for a More 4 Definite Statement ("Motion to Dismiss") and (ii) Plaintiffs' Motion for a Preliminary Injunction 5 ("PI Motion") for May 6, 2010. Fusion Garage now respectfully files this revised request and 6 moves the Court to continue the hearing to May 27, 2010, or another date convenient on the 7 Court's calendar. 8 9 Summary of the Action This case arises out of a failed merger. Plaintiff Interserve, Inc. dba TechCrunch 10 ("TechCrunch") is an Internet "blog" founded by blogger Michael Arrington. Mr. Arrington also 11 formed another company, Plaintiff CrunchPad, Inc. ("CP, Inc.") to acquire Fusion Garage. After 12 the parties' merger talks fell through, Plaintiffs filed this lawsuit to disrupt Fusion Garage's 13 introduction of its product to the market. While Plaintiffs allege that the parties were partners or 14 joint venturers in connection with developing a web tablet product, they do not allege the 15 existence of any partnership agreement, joint venture agreement, development agreement, non16 disclosure agreement, confidentiality agreement, or any contract at all between the parties. 17 Given the lack of any legal relationship between the parties, Plaintiffs have asserted claims 18 based on vague and non-specific allegations, including: "misappropriation of business ideas," false 19 advertising under the Lanham Act, breach of fiduciary duty, fraud, and violations of California 20 Business & Professional Code 17200 and 17500. In discovery, Plaintiffs have disavowed any 21 intellectual property infringement claim. 22 Fusion Garage has moved to dismiss the Complaint on numerous bases including, inter 23 alia, (i) that no claim for misappropriation of business ideas exists under California law and/or 24 such claim is preempted by the Uniform Trade Secrets Act; (ii) Plaintiffs' "business ideas" were 25 posted on the Internet; (ii) Plaintiffs lack standing to assert a Lanham Act claim since they have no 26 competing product; (iii) there are no actionable false statements to support the Lanham Act claim 27 or fraud claim; and (iv) the parties were never part of a partnership or joint venture to support a 28 breach of fiduciary duty claim. 04049.51632/3416107.1 Case No. 09-cv-5812 RS -1FUSION GARAGE'S REVISED MOTION FOR ADMINISTRATIVE RELIEF 1 2 The Pending Preliminary Injunction Motion On February 22, 2010, Plaintiffs filed the PI Motion. The PI Motion seeks limited, yet 3 drastic, relief: plaintiffs seek to impound Fusion Garage's revenues in a Court-controlled account. 4 The purpose of the PI Motion is therefore not to protect any trade secrets or confidential 5 information, but to use this Court to strangle Fusion Garage's business. 6 In connection with filing their PI Motion, Plaintiffs sought to advance the hearing date and 7 have the PI Motion heard earlier than the noticed date. Judge Ware declined to advance the 8 hearing on the PI Motion. (Dkt. No. 33). 9 10 Reasons for Fusion Garage's Motion to Change Time Since the time Fusion Garage filed its March 30, 2010 administrative motion, it has sought 11 Plaintiffs' stipulation to continue the hearing dates approximately one month to allow Fusion 12 Garage to obtain and review documents that Plaintiffs have promised to produce in advance of a 13 30(b)(6) deposition related to the PI motion and Fusion Garage's opposition thereto. Fusion 14 Garage's request to Plaintiffs concerned a straightforward scheduling issue regarding the PI 15 Motion pending before the District Court. 16 Plaintiffs declined Fusion Garage's request absent some form of provisional 17 "sequestration" order or procedure requiring Fusion Garage to sequester its revenues pending the 18 hearing on Plaintiffs' PI Motion. As Plaintiffs' demand was unreasonable and unwarranted--and 19 in light of recent events--Fusion Garage respectfully submits that a one-month continuance of the 20 hearing dates is appropriate and reasonable. The bases for Fusion Garage's request are as follows: 21 Plaintiffs are the moving party on their PI Motion yet admit they have not produced 22 responsive document relevant to the PI Motion.1 They assert that Fusion Garage will receive 23 Plaintiffs' remaining responsive documents late the week of March 29, 2010 and early the 24 following week. To date, Plaintiffs have only produced a few hundred pages of documents. 25 Fusion Garage has lost confidence that Plaintiffs will produce all responsive documents in a 26 timely fashion since Plaintiffs have previously committed to provide most relevant documents by 27 28 04049.51632/3416107.1 Case No. 09-cv-5812 RS -2FUSION GARAGE'S REVISED MOTION FOR ADMINISTRATIVE RELIEF 1 now but did not fulfill that promise. Moreover, Fusion Garage is concerned that Plaintiffs will 2 now produce an unreasonably high volume of documents immediately before the 30(b)(6) 3 deposition that would make a document review unfeasible. 4 Plaintiffs do not, and cannot, establish any risk of irreparable injury if the hearing is 5 not continued one month. For example, Plaintiffs allege that they were partners or joint venturers 6 with Fusion Garage and purport to have filed their PI Motion to preserve the viability of Fusion 7 Garage. However, their PI Motion is a non sequitur: it would shut down Fusion Garage (by 8 strangling its revenue stream) for the ostensible purpose of saving Fusion Garage. 9 Plaintiffs' request for a provisional "sequestration of revenues" remedy pending the 10 PI Motion is untenable. Plaintiffs have no right to such a remedy and there is no authority to hold 11 hostage a company's revenues pending a trial (or hearing) on the merits. 12 Based on Fusion Garage's review of the record, Plaintiffs' PI motion is not 13 supported by any competent evidence to support the extraordinary relief it requests. Nevertheless, 14 to avoid undue surprise on reply, Fusion Garage seeks to flesh out all discovery related to 15 Plaintiffs' PI Motion before filing its opposition. 16 Plaintiffs' written discovery responses to date have been insufficient. For example, 17 Plaintiffs initially refused to respond to Interrogatories asking for all facts and documents 18 supporting Plaintiffs' contention that the parties entered into a partnership or joint venture--even 19 though that is Plaintiffs' central allegation in the case. Plaintiffs supplemented their responses last 20 week and have "identified" all documents produced by either party in the case as those that 21 Plaintiff contends support the existence of a partnership or joint venture. Fusion Garage 22 anticipates the need to move to compel further responses to certain interrogatories. 23 24 Relief that Fusion Garage Requests Accordingly, Fusion Garage revises its scheduling request and asks that the Court re-set 25 the hearings on the PI Motion and the Motion to Dismiss to May 27, 2010. In the alternative, 26 27 28 04049.51632/3416107.1 1 Fusion Garage, on the other hand, has a motion for a protective order pending. Case No. 09-cv-5812 RS -3FUSION GARAGE'S REVISED MOTION FOR ADMINISTRATIVE RELIEF 1 Fusion Garage respectfully requests that the Court conduct a telephonic, ex parte, hearing to 2 discuss the scheduling of the pending motions. 3 4 DATED: April 1, 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 04049.51632/3416107.1 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN, LLP By /s/ Patrick Doolittle Patrick C. Doolittle Attorneys for Certain Individual Defendants Case No. 09-cv-5812 RS -4FUSION GARAGE'S REVISED MOTION FOR ADMINISTRATIVE RELIEF

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