CROSS ATLANTIC CAPITAL PARTNERS, INC. v. FACEBOOK, INC. et al

Filing 52

Opposition to 51 MOTION for Leave to File Reply Brief in Support of its Motion to Compel Full and Complete Interrogatory Responses and Documents Defendants' Opposition to Plaintiff's Motion for Leave to File a Reply Brief in Support of Its Motion to Compel filed by FACEBOOK, INC., THEFACEBOOK, LLC., Certificate of Service.(KEEFE, HEIDI) Modified on 12/31/2007 (fh)

CROSS ATLANTIC CAPITAL PARTNERS, INC. v. FACEBOOK, INC. et al

Doc. 52

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CROSS ATLANTIC CAPITAL PARTNERS, INC., Plaintiff, v. FACEBOOK, INC. and THEFACEBOOK, LLC, Defendants.

CIVIL ACTION NO. 07-CV- 02768-JP JURY TRIAL DEMANDED

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR LEAVE TO FILE A REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL [DOC. NO. 51] Two days ago (on Tuesday), Judge Rice held a teleconference with counsel for XACP and Facebook on the underlying motion to compel. Although counsel had the opportunity to do so, and both parties were asked to provide brief explanatory remarks to the Court, at no point did XACP's counsel express any concern to the Court regarding the completeness or quality of the record on the motion to compel. Accordingly, after considering the comments from counsel, Judge Rice stated that no hearing would be held and that he would be issuing an order based on the written record before him. Ignoring in its entirety Tuesday's court conference, the instant motion states that "Facebook raised issues to which Plaintiff seeks leave to respond." Distilled to its essence, XACP's motion says nothing more than that Plaintiff wants the "last word." Such an argument falls well short of the requirement that replies are only warranted in the face of truly new issues. Finally and tellingly, Plaintiff did not attach any new documents or declarations to support the factual allegations made in its proposed reply brief ­ a similar tactic to that taken in its opening brief where Plaintiff misrepresented the record and failed to include a single correspondence from Facebook. Plaintiff's proposed Reply is again replete with

Dockets.Justia.com

misrepresentations and false allegations, all of which are belied by the documents and sworn declarations attached to Facebook's opposition. If the Court is inclined to consider Plaintiff's reply, Facebook would appreciate the opportunity to counter the inaccuracies contained therein. For all these reasons, it is respectfully submitted that XACP's motion seeking leave to file a reply brief is without merit and that no consideration need be given to the motion or the attached reply brief. Dated: December 20, 2007 By: /s/ Heidi L. Keefe Heidi L. Keefe Mark R. Weinstein Sam O'Rourke WHITE & CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, CA 94306 Alfred W. Zaher Dennis P. McCooe BLANK ROME LLP 130 N 18th St Philadelphia, PA 19103 Attorneys for FACEBOOK, INC. and THEFACEBOOK, LLC

2

CERTIFICATE OF SERVICE This is to hereby certify that on this 20th day of December, 2007, I caused a true and correct copy of the foregoing document: Defendants' Opposition to Plaintiff's Motion For Leave to File a Reply Brief in Support of its Motion to Compel [Doc. No. 51] to be served via this Court's Electronic Filing ("ECF") System, upon the following: Frederick A. Tecce, Esq. McShea/Tecce, P.C. The Bell Atlantic Tower ­ 28th Floor 1717 Arch Street Philadelphia, PA 19103 [e-mail] Thomas J. Duffy, Esq. Patrick J. Keenan, Esq. Duffy & Keenan The Curtis Center, Suite 1150 Independence Square West Philadelphia, PA 19106 [e-mail] Counsel for plaintiff Cross Atlantic Capital Partners, Inc.

/s/ Heidi L. Keefe Heidi L. Keefe

3