Facebook, Inc. v. Fisher et al

Filing 62

MOTION for Administrative Relief From Order Setting Case Management Conference filed by Facebook, Inc.. (Attachments: # 1 Proposed Order)(McCullagh, James) (Filed on 6/30/2010)

Facebook, Inc. v. Fisher et al

Doc. 62

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Brian Hennessy, State Bar No. 226721 [e-mail] PERKINS COIE LLP 101 Jefferson Drive Menlo Park, California 94025 Telephone: [phone] Facsimile: 650.838.4350 James McCullagh, pro hac vice [e-mail] Joseph Cutler, pro hac vice [e-mail] PERKINS COIE LLP 1201 Third Avenue, Suite 4800 Seattle, Washington 98101 Telephone: [phone] Facsimile: 206.359.9000 Attorneys for Plaintiff FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

FACEBOOK, INC., a Delaware corporation, Plaintiff, v. JEREMI FISHER; PHILIP POREMBSKI; RYAN SHIMEALL; and JOHN DOES 125, individuals; and CHOKO SYSTEMS LLC; HARM, INC.; PP WEB SERVICES LLC; iMEDIA ONLINE SERVICES LLC; and JOHN DOES 26-50, corporations, Defendants.

Case No. C-09-05842-JF PLAINTIFF FACEBOOK INC.'S MOTION FOR ADMINISTRATIVE RELIEF FROM ORDER SETTING CASE MANAGEMENT CONFERENCE

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Motion for Administrative Relief From Order Setting Case Management Conference Case No. C-09-05842-JF

Dockets.Justia.com

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Pursuant to Local Rules 6-3, 7-1 and 7-11, Facebook, Inc. ("Facebook") makes this Motion for Administrative Relief to vacate the Case Management Conference ("CMC") currently scheduled for July 9, 2010 ("Motion"). Default has been entered against all Defendants and on June 29, 2010, the Court granted Facebook's request to obtain a copy of a hard drive from Defendant's Philip Poerembski's abandoned computer recovered by the Sacramento Sheriff's Department. As a result, Facebook anticipates that it will be prepared to move for entry of default judgment against all defendants on or before August 27, 2010. Facebook, therefore, respectfully requests that the Court vacate the CMC and set August 27, 2010 as the deadline for Facebook to file its Motion for Default Judgment. This Motion is based upon the below Memorandum of Points and Authorities and Declaration of James R. McCullagh ("McCullagh Decl.") filed concurrently herewith. MEMORANDUM IN OF POINTS AND AUTHORITIES

Facebook filed this lawsuit against Defendants for numerous misuses and abuses of Facebook's website, network and the Facebook Platform, including large-scale phishing1 and spamming campaigns. Defendants are currently enjoined from conducting any activity on Facebook. Electronic Docket Entry ("DE") 29, 30, 33. After stipulating to injunctive relief, Defendants stopped participating in this litigation and are in default. Default was entered against each Defendant on April 26, 2010. DE 51. Facebook thereafter learned that the Sacramento Sheriff's Department had recovered a computer abandoned by Defendant Porembski containing information relevant to this litigation. Declaration of James R. McCullagh ("McCullagh Decl.), ¶ 3. On June 4, 2010, Facebook requested permission to conduct third party discovery. DE 53. On June 14, 2010, this Court entered an Order Granting

"Phishing" describes the attempt to acquire sensitive information such as usernames and passwords by masquerading as a trustworthy entity in an electronic communication.
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Plaintiff Facebook's Administrative Request for Leave to Conduct Discovery Prior to Rule 26 Conference. DE 56. On or about June 22, 2010, Facebook issued a subpoena to the Sacramento Sheriff's Department requesting a copy of the abandoned computer's hard drive as well as police reports and witness statements related to the recovery of the abandoned computer. McCullagh Decl. ¶ 4. The Sheriff's Department objected to producing the computer hard drive and requested that Facebook obtain a Court order directing it to release this information to Facebook. McCullagh Decl. ¶ 5. On June 28, 2010, Facebook filed an Administrative Motion seeking a court order as requested by the Sacramento Sheriff's Department. DE 57. The Court granted the request on June 29, 2010. DE 61. A CMC is currently scheduled for July 9, 2010 at 10:30 am. DE 55. In light of Defendants' decision to not participate in this litigation, the previous entry of Default as to all Defendants and the recent order permitting Facebook to obtain a copy of the hard drive from Defendant Porembski's abandoned computer, the only issue left to address at a Case Management Conference is the deadline for Facebook to file its Motion for Default Judgment. Facebook requests that it be allowed a reasonable amount of time to obtain and inspect a copy of Defendant Porembski's computer hard drive, conduct any necessary follow-up discovery, and prepare its Motion for Default Judgment. Facebook believes that it can complete these activities within 60 days and therefore requests that the Court set August 27, 2010 as the deadline for filing its Motion for Default Judgment.

CONCLUSION For the reasons set forth above, Facebook respectfully requests that the Court vacate the CMC currently set for July 9, 2010 and set August 27, 2010 as the deadline for filing its Motion for Default Judgment.

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DATED: June 30, 2010

PERKINS COIE LLP By: /s/ James R. McCullagh Brian Hennessy (SBN 226721) [e-mail] James R. McCullagh (pro hac vice) [e-mail] Joseph Cutler (pro hac vice) [e-mail] Attorneys for Plaintiff Facebook, Inc.

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CERTIFICATE OF SERVICE I certify that on June 30, 2010, I sent the foregoing MOTION FOR ADMINISTRATIVE RELIEF FROM ORDER SETTING CASE MANAGEMENT CONFERENCE, which was filed with the Clerk of the Court using the CM/ECF system, via U.S. Mail and electronic mail to the following Defendants: Jeremi Fisher Choko Systems LLC 35 Jackson Street Akron, New York 14001 [e-mail] Philip Poremsbki Harm Inc. PP Web Services LLC 12155 Tributary Point Drive Apt. 170 Rancho Cordova, California 95670 [e-mail]

Ryan Shimeall iMedia Online Services LLC 10299 Julian Court Westminster, Colorado 80031 [e-mail]

I certify under penalty of perjury that the foregoing is true and correct. DATED this 30th day of June 2010. By: /s/ James R. McCullagh Brian Hennessy (SBN 226721) [e-mail] James R. McCullagh (pro hac vice) [e-mail] Joseph Cutler (pro hac vice) [e-mail] Attorneys for Plaintiff Facebook, Inc.

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Motion for Administrative Relief From Order Setting Case Management Conference Case No. C-09-05842-JF