Williams v. Scribd, Inc. et al

Filing 18

RESPONSE in Opposition to 17 Ex Parte Motion for Leave to File, filed by Larry Williams. (Hallock, Kurt) (pdc).

Williams v. Scribd, Inc. et al

Doc. 18

Case 3:09-cv-01836-LAB-WMC Document 18

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Kurt W. Hallock, CSB #131893
LAW OFFICE OF KURT W. HALLOCK

110 West C Street, Suite 1905 San Diego, California 92101 [e-mail] Telephone: [phone] Facsimile : [phone]

Attorney for Plaintiff Larry Williams

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA, SAN DIEGO DIVISION ) CASE NO. 09-CV-1836-LAB-WMc ) Plaintiff, ) PLAINTIFF LARRY WILLIAMS' ) OPPOSITION TO DEFENDANT -v) SCRIBD, INC.'S EX PARTE ) MOTION FOR LEAVE TO FILE SCRIBD, INC,a corporation; GalaxiaMia sued ) RESPONSE TO PLAINTIFF'S As DOE 1; api_user_11797_malvik as Doe 2;) SUR-REPLY TO MOTION TO alukmanto as Doe 3; api_user_11797_ ) DISMISS NEBOJSAJE as Doe 4; mikaj as Doe 5; ) Dept: 9 Srikanthbnm sued as Doe 6; api_user_11797_) Judicial Officer: Hon. Larry A. Burns Sathis sued as Doe 7; api_user_11797_ ) tevado... sued as Doe 8; api_user_11797_ ) ingrid...sued as Doe 9; and Does 10 to 40 ) are upload infringers to be named; ) Defendants. ) Plaintiff LARRY WILLIAMS respectfully submits the following opposition to Defendant SCRIBD, INC.'s ex parte application for leave to file a response to Mr. WILLIAMS' Sur-reply to the Reply to the Motion to Dismiss Mr. WILLIAMS' First Amended Complaint ("FAC") pursuant to Rule 12(b)(6): I. INTRODUCTION. The court, when it authorized Mr. WILLLIAMS' Sur-reply in its Order granting leave to file Mr. WILLIAMS' FAC on February 12, 2010, stated: "Now the question is how to handle Scribd's pending motion to dismiss. Scribd may either withdraw it and obtain a new hearing 1
PLAINTIFF WILLIAMS' OPPOSITION TO SCRIBD'S EX PARTE RE: SUR-SURREPLY

LARRY WILLIAMS

Dockets.Justia.com

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date for a new motion to dismiss, or explain in its reply brief why the amended complaint doesn't survive the motioin to dismiss on file. If Scribd opts for the latter option, Plaintiff will be allowed a sur-reply to explain why his amended complaint should not be dismissed." Scribd made its choice to attack the FAC in its reply. Scribd could have obtained a new hearing date for a motion to dismiss, but chose to proceed in the manner it did. Had Scribd chosen to obtained a new hearing date for its motion rather than proceed as it did, Scribd would have had another bite of the apple in reply to Plaintif's opposition and response as to why the FAC survives Scribd's motion to dismiss. Scribd made its choice. Plaintiff was not restrained or bound to only argue from Plaintiff's opposition to the original motion to dismiss the original complaint. Obviously, many more facts and exhibits were added in the FAC and the claims for relief were modified. One area that did not change, which Scribd bases this ex parte request upon, is that the original complaint and the FAC both alleged in numerous paragraphs that Scribd's CEO, Trip Adler, was a "friend" on GalaxaMia's page. Original complaint, ¶¶s11, 14, 15, 36, 37, and FAC, ¶¶ 19, 50, 51. This is not a summary judgment motion. Scribd should answer the FAC and discovery should proceed. V I I . CONCLUSION. Based on the foregoing points and authorities, the motion papers, reply, surreply, this court's orders and Plaintiff's First Amended Complaint, Plaintiff LARRY WILLIAMS

respectfully requests this court deny Defendant SCRIBD's ex parte request to file additional paper work in support of its Motion to Dismiss pursuant to Rule 12(b)(6). DATED
LAW OFFICE OF KURT W. HALLOCK

S/ Kurt W. Hallock By:_________________________ Kurt W. Hallock, Attorney for Attorney for Plaintiff Larry Williams 2
PLAINTIFF WILLIAMS' OPPOSITION TO SCRIBD'S EX PARTE RE: SUR-SURREPLY

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PROOF OF SERVICE I, the undersigned, declare that I am over the age of eighteen years and not a party to this action. I am employed in the County of San Diego where this service occurred. My business address is 110 West "C" Street, Suite 1905, San Diego, California 92101. I hereby certify that on February 25, 2010, I electronically transmitted: 1) Plaintiff Larry Williams' Sur-Reply in Opposition to Defendant's Rule 12(b)(6) Motion to Dismiss. To the Clerk's Office pursuant to Electronic Case Filing Administrative Policies and Procedures using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the Following CM/ECF registrants who have consented to electronic service through the Court's transmission facilities: (the opposition was also transmitted via facsimile to 619-6967124) Richard P. Sybert, e-mail: [e-mail]; Attorney for Defendant Scribd, Inc. Yuo-Fong C. Amato, e-mail: [e-mail]; Attorney for Defendant Scribd, Inc. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on February 25, 2010 at San Diego, CA. S/ Kurt W. Hallock _________________________ Kurt W. Hallock

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PLAINTIFF WILLIAMS' OPPOSITION TO SCRIBD'S EX PARTE RE: SUR-SURREPLY