EVANS et al v. LINDEN RESEARCH, INC. et al
Filing
26
MOTION for Leave to File REPLY TO PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS LINDEN RESEARCH, INC. AND PHILIP ROSEDALES MOTION TO DISMISS UNDER RULE 12(b)(6) OR IN THE ALTERNATIVE TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a) filed by LINDEN RESEARCH, INC., PHILIP ROSEDALE.Memorandum of Law, Certificate of Service.(SHIEKMAN, LAURENCE)
EVANS et al v. LINDEN RESEARCH, INC. et al
Doc. 26
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA : CARL EVANS, DONALD SPENCER, VALERIE SPENCER, CINDY CARTER, individuals, on Behalf of Themselves and for the Benefit of All with the Common or General Interests, Any Persons Injured, and All Others Similarly Situated, Plaintiffs, v. LINDEN RESEARCH, INC., a corporation, and PHILIP ROSEDALE, an individual, Defendants. : : : : : : : : Civil Action No. 2:10-cv-01679-ER
ORDER AND NOW, this ____ day of _______________, 2010, upon consideration of Defendants' Motion for Leave to File Reply to Plaintiffs' Supplemental Brief in Opposition to Defendants Linden Research, Inc. and Philip Rosedale's Motion to Dismiss Under Rule 12(b)(6) or in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404(a), it is ORDERED that Defendants' Motion is GRANTED; that Defendants may file a reply in the form attached to Defendants' Motion; and that the Clerk is directed to file the Reply attached to the Motion as of the date of this Order. BY THE COURT:
_______________________________________ EDUARDO C. ROBRENO United States District Judge
Dockets.Justia.com
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA : CARL EVANS, DONALD SPENCER, VALERIE SPENCER, CINDY CARTER, individuals, on Behalf of Themselves and for the Benefit of All with the Common or General Interests, Any Persons Injured, and All Others Similarly Situated, Plaintiffs, v. LINDEN RESEARCH, INC., a corporation, and PHILIP ROSEDALE, an individual, Defendants. : : : : : : : : Civil Action No. 2:10-cv-01679-ER
MOTION FOR LEAVE TO FILE REPLY TO PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS LINDEN RESEARCH, INC. AND PHILIP ROSEDALE'S MOTION TO DISMISS UNDER RULE 12(b)(6) OR IN THE ALTERNATIVE TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a) Defendants Linden Research, Inc. and Philip Rosedale hereby move this Court for leave to file a Reply to Plaintiffs' Supplemental Brief in Opposition to Defendants Linden Research, Inc. and Philip Rosedale's Motion to Dismiss under Rule 12(b)(6) or in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404(a). As grounds for this Motion, Defendants state: 1. On September 30, 2010, Defendants filed their Supplemental Brief in
Support of Defendants Linden Research, Inc. and Philip Rosedale's Motion to Dismiss Under Rule 12(b)(6) or in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404(a). See Doc. 24. 2. On October 11, 2010, Plaintiffs filed their Supplemental Brief in
Opposition to Defendants Linden Research, Inc. and Philip Rosedale's Motion to Dismiss Under Rule 12(b)(6) or in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404(a). See Doc. 25.
3.
Defendants request leave to submit a short reply in the form attached
hereto as Exhibit A in order to respond to certain issues raised by Plaintiffs in their Supplemental Brief.
By:
/s/ Laurence Z. Shiekman
LAURENCE Z. SHIEKMAN (PA Bar # 15203) MATTHEW D. JANSSEN (PA Bar # 91490) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: 215.981.4000 Facsimile: 215.981.4750 shiekmanl@pepperlaw.com janssenm@pepperlaw.com MICHAEL H. PAGE (pro hac vice) JOHANNA CALABRIA (pro hac vice) DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, CA 94111 Telephone: 415.362.6666 Facsimile: 415.236.6300 Attorneys for Defendants Linden Research, Inc. and Philip Rosedale Dated: October 13, 2010
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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA : CARL EVANS, DONALD SPENCER, VALERIE SPENCER, CINDY CARTER, individuals, on Behalf of Themselves and for the Benefit of All with the Common or General Interests, Any Persons Injured, and All Others Similarly Situated, Plaintiffs, v. LINDEN RESEARCH, INC., a corporation, and PHILIP ROSEDALE, an individual, Defendants. : : : : : : : : Civil Action No. 2:10-cv-01679-ER
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO FILE REPLY TO PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS LINDEN RESEARCH, INC. AND PHILIP ROSEDALE'S MOTION TO DISMISS UNDER RULE 12(b)(6) OR IN THE ALTERNATIVE TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a) Pursuant to Local R. Civ. P. 7.1(c), Defendants, by their attorneys, move for leave of Court to file the attached Reply to Plaintiffs' Supplemental Brief in Opposition to Defendants Linden Research, Inc. and Philip Rosedale's Motion to Dismiss Under Rule 12(b)(6) or in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404(a). This Court may permit a reply brief when it "deems it appropriate." Local R. Civ. P. 7.1(c). Defendants respectfully submit that the attached Reply responds only to issues raised in Plaintiffs' Supplemental Brief (Doc. 25), and is necessary to address these issues, which are
not discussed in the initial brief. Defendants believe that the reply brief will assist the Court in resolving the instant motion. By: /s/ Laurence Z. Shiekman
LAURENCE Z. SHIEKMAN (PA Bar # 15203) MATTHEW D. JANSSEN (PA Bar # 91490) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: 215.981.4000 Facsimile: 215.981.4750 shiekmanl@pepperlaw.com janssenm@pepperlaw.com MICHAEL H. PAGE (pro hac vice) JOHANNA CALABRIA (pro hac vice) DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, CA 94111 Telephone: 415.362.6666 Facsimile: 415.236.6300 Attorneys for Defendants Linden Research, Inc. and Philip Rosedale Dated: October 13, 2010
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Exhibit A
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA : CARL EVANS, DONALD SPENCER, VALERIE SPENCER, CINDY CARTER, individuals, on Behalf of Themselves and for the Benefit of All with the Common or General Interests, Any Persons Injured, and All Others Similarly Situated, Plaintiffs, v. LINDEN RESEARCH, INC., a corporation, and PHILIP ROSEDALE, an individual, Defendants. : : : : : : : : Civil Action No. 2:10-cv-01679-ER
DEFENDANTS' REPLY TO PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANTS LINDEN RESEARCH, INC. AND PHILIP ROSEDALE'S MOTION TO DISMISS UNDER RULE 12(b)(6) OR IN THE ALTERNATIVE TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a) Linden submits this brief reply to Mr. Evans' Supplemental Brief to correct a material falsehood in that pleading. In his Supplemental Brief, Mr. Evans for the first time identifies which of his more than one hundred accounts he claims is at issue in this case--an account named "Allen10aya"--and argues that this particular account is not subject to the venue provisions at issue: The Declarations demonstrate that the virtual property, virtual items and United States currency that were wrongfully confiscated by Linden, were taken in accounts which had only been logged into while the original TOS (the one this Court deemed unconscionable) were in place; therefore, those accounts cannot possibly be subject to any other TOS. Evans Supplemental Brief at 2.
This is simply false. The "Allen10aya" account is listed as Evans Account 62 in Rountree Declaration Exh. G:
Mr. Evans continued to use that account until March 2, 2008, when it was suspended for violations of the Terms of Service, and agreed to the then-current Terms of Service on November 30, 2007.1 As set forth in our prior briefing, that version of the Terms of Service contains the current venue provisions. Thus, even under Mr. Evans' latest theory, his claims fail: the specific account he now claims is the one at issue is itself subject to mandatory venue in the Northern District of California.
See also Mr. Evans' First Amended Complaint at ¶121, which alleges that Linden "terminated his access" in "March 2008."
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By:
/s/ Laurence Z. Shiekman
LAURENCE Z. SHIEKMAN (PA Bar # 15203) MATTHEW D. JANSSEN (PA Bar # 91490) PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: 215.981.4000 Facsimile: 215.981.4750 shiekmanl@pepperlaw.com janssenm@pepperlaw.com MICHAEL H. PAGE (pro hac vice) JOHANNA CALABRIA (pro hac vice) DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, CA 94111 Telephone: 415.362.6666 Facsimile: 415.236.6300 Attorneys for Defendants Linden Research, Inc. and Philip Rosedale Dated: October 13, 2010
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CERTIFICATE OF SERVICE I, Matthew D. Janssen, hereby certify that on October 13, 2010, a copy of the foregoing Motion for Leave to File Reply to Plaintiffs' Supplemental Brief in Opposition to Defendants Linden Research, Inc. and Philip Rosedale's Motion to Dismiss Under Rule 12(b)(6) or in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404(a) has been electronically filed with the Clerk of the Court using CM/ECF, which shall send notification of such filing to the following: Jason A. Archinaco, Esq. PRIBANIC, PRIBANIC + ARCHINACO LLC 513 Court Place Pittsburgh, PA 15219 Attorneys for Plaintiffs
/s/ Matthew D. Janssen Matthew D. Janssen
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