Lulu Enterprises, Inc. v. N-F Newsite, LLC et al

Filing 110

Memorandum in Opposition re #109 MOTION for Leave to File Declaration of Kent Van Liere in Support of Motion for Preliminary Injunction filed by N-F Newsite, LLC. (Silver, Hayden)

Lulu Enterprises, Inc. v. N-F Newsite, LLC et al

Doc. 110

Case 5:07-cv-00347-D

Document 110

Filed 10/15/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:07-cv-00347-D

LULU ENTERPRISES, INC., Plaintiff, vs. HULU, LLC, et al., Defendants. DEFENDANT HULU, LLC'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE DECLARATION OF KENT VAN LIERE

Defendant, Hulu, LLC ("Hulu"), respectfully submits this Response in opposition to Plaintiff's Motion for Leave to File Declaration of Kent Van Liere, which includes a purported consumer confusion focus group study commissioned by Plaintiff: 1. Plaintiff produced the Declaration of Kent Van Liere ("Declaration") and the

accompanying purported consumer confusion focus group study, at 5:46 p.m. on October 12, 2007, after the close of expedited discovery and briefing in this matter. 2. Hulu incorporates by reference its Memorandum of Law in Opposition to

Plaintiff's Motion for Leave to File Declaration of Hal L. Poret and In Support of Hulu's Motion in Limine to Exclude Plaintiff's Survey and Focus Group Declarations and Reports [docket 108] [hereinafter "Hulu's Memorandum of Law"]. 3. For the same reasons set forth in Hulu's Memorandum of Law, the Court should

exclude and refuse to consider the Declaration. 4. The untimely production of Plaintiff's purported expert evidence is contrary to the

Court's September 14 scheduling order, Fed. R. Civ. P. 6(d), and Local Civil Rule 7.1, EDNC.

US2000 10377190.1

Dockets.Justia.com

Case 5:07-cv-00347-D

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5.

Hulu will be unfairly prejudiced by Plaintiff's untimely production if Plaintiff is

allowed to submit this evidence for the Court's consideration. 6. Delaying the preliminary injunction hearing, however, would only further serve to

postpone Hulu's roll-out, again allowing Plaintiff to benefit from its own failure to timely present its evidence. 7. The appropriate remedy for Plaintiff's failure to timely produce its purported

expert evidence is to exclude the use of such evidence at the hearing on Plaintiff's motion for preliminary injunction. WHEREFORE, for the reasons set forth above, as well as discussed in detail in Hulu's Memorandum of Law in Opposition to Plaintiff's Motion for Leave to File Declaration of Hal L. Poret and In Support of Hulu's Motion in Limine to Exclude Plaintiff's Survey and Focus Group Declarations and Reports, Plaintiff should not be given leave to file and rely upon the Declaration of Kent Van Liere, or any other survey evidence or focus group report, in support of its Motion for Preliminary Injunction.

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Respectfully submitted, this the 15th day of October, 2007.

/s/ Hayden J. Silver, III Hayden J. Silver, III NC State Bar No. 10037 [e-mail] Betsy Cooke NC State Bar No. 25353 [e-mail] KILPATRICK STOCKTON LLP 3737 Glenwood Avenue, Suite 400 Raleigh, NC 27612 [phone] [phone] (facsimile) William H. Brewster GA State Bar No. 080422 [e-mail] Sara Maurer GA State Bar No. 159056 [e-mail] KILPATRICK STOCKTON LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 [phone] [phone] facsimile Attorneys for Defendant Hulu, LLC

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CERTIFICATE OF SERVICE This is to certify that on this date the foregoing was electronically filed with the Clerk of the Court using the CM/ECF System which will send notice to the following CM/ECF participants: Leslie C. O'Toole [e-mail] Thomas Hamilton Segars [e-mail] This the 15th day of October, 2007.

/s/ Hayden J. Silver, III

KILPATRICK STOCKTON LLP 3737 Glenwood Avenue, Suite 400 Raleigh, North Carolina 27612 Telephone: [phone]

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