Castro v. Entrepreneur Media, Inc.

Filing 27

Response in Opposition to Motion, filed by Entrepreneur Media, Inc., re 17 MOTION for Leave to Exceed Page Limitation 19 ResponseMOTION for Leave to Exceed Page Limitation 19 Response filed by Plaintiff Daniel R. Castro, 16 MOTION to File Separate Responses to 12 Motion to DismissMOTION to File Separate Responses to 12 Motion to Dismiss filed by Plaintiff Daniel R. Castro (Attachments: # 1 Proposed Order)(Barber, William)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DANIEL R. CASTRO,
Plaintiff,

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v.
ENTREPRENEUR MEDIA, INC.,
Defendant.

Civil Action No. 10CA695
Hon. Lee Yeakel

DEFENDANT ENTREPRENEUR MEDIA, INC.’S COMBINED OPPOSITION
TO CASTRO’S MOTION TO FILE SEPARATE RESPONSES
AND MOTION TO EXTEND PAGE LENGTH

I.

INTRODUCTION
Plaintiff Daniel Castro’s (“Castro”) Motion to File Separate Responses (“MFSR”) is

predicated on an unfounded and unsupported belief that Castro is permitted to file a separate
response to address each argument in EMI’s Partial Motion to Dismiss Under Rule 12(b)(6)
(“MTD”). Castro’s request to bifurcate his responses is nothing more than a backdoor attempt to
burden the court with at least seventy-four pages worth of arguments in response to a
straightforward, 15-page 12(b)(6) motion. While EMI would generally not oppose a modest
request for an extension of the ten page limit set by this Court for responsive briefs, and indeed,
offered to stipulate to 20 pages for Castro’s opposition brief, Castro’s attempt to saturate this
court with voluminous arguments is unwarranted and inappropriate given the straightforward
nature of the MTD.
More fundamentally, Castro incorrectly argues that he needs all of those extra pages
because “this is not the run of the mill trademark case.” MFSR 2. This is, in fact, a run of the
mill trademark case, similar to hundreds of trademark cases that have come before it. EMI is not

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the first trademark owner to assert a trademark that is also an English word, and will not be the
last. There are no constitutional or antitrust issues involved here; Castro has misconstrued and
misapplied those laws in this straightforward trademark dispute he has brought before the Court.
Castro also wastes unnecessary pages “educating” the Court on the purpose of the Declaratory
Judgment Act and basic trademark law, both areas that the Court is already familiar with and
needs no extraordinary briefing from Castro. EMI was able to address Castro’s improper claims
in a concise manner in a single, 15 page motion. Castro should be able, and required, to do the
same.
II.

ARGUMENT
A.

Bifur cation of Responses is Inappr opr iate Under the Local Cour t Rules

Castro claims that “[t]echnically, [he] is entitled to file eight (8) separate responses
because EMI has effectively filed eight (8) separate Rule 12(b)(6) motions.” MFSR 3. Castro
provides no support in the Federal Rules of Civil Procedure or Local Rules for this assertion.
Local Rule CV-7(d) states, “If any party opposes a motion, the respondent shall file a
response… [and t]he response is limited to 10 pages unless otherwise authorized by the Court.”
(emphasis added). A single motion justifies a single response; there is nothing in the Local
Rules that states that a response may address each argument comprising a motion with a separate
response. If Castro’s perceived technicality were accurate, EMI could have used that same logic
to expand upon each argument in the MTD by filing a separate ten-page motion to dismiss for
each cause of action. However, EMI recognized that to do so would subvert the purpose and
effect of the established page limits and unduly burden the court to the point that bringing even a
relatively simple matter to conclusion would become a procedural marathon if this tactic was
routinely employed. Instead, EMI filed one concise motion which justifies one concise response
under the rules.
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B.

Castr o Is Not Responding to a Motion for Summar y J udgment

Castro tries to bolster his bifurcation argument by labeling EMI’s MTD as “more akin to
a motion for summary judgment because it consists almost entirely of arguments on the
merits….” and further argues that this is improper under the “Rule 12(b)(6) standard.” MFSR 12. This is an inaccurate statement of the law and characterization of the MTD. First, Castro’s
cited case, Jones v. Greninger, in no way supports this argument, as it says nothing about merit
arguments being improper in a 12(b)(6) motion. Second, there is nothing improper about
explaining the applicable legal standard necessary to state a claim upon which relief can be
granted and then demonstrating why Castro did not, and cannot, plead specific facts in his First
Amended Complaint (“FAC”) sufficient to support those claims, as EMI’s MTD did. This
approach is entirely consistent with a 12(b)(6) motion to dismiss, which is designed to test the
sufficiency of a claim for relief.
Being a straightforward 12(b)(6) motion to dismiss, Castro’s response to the MTD need
not be a seventy-five page affair. If Castro believes that the FAC pleads specific facts sufficient
to support those claims EMI seeks to dismiss, he should be able to reference those facts in a
concise response. Indeed, by Castro’s own admission, he can “simply identify the paragraph
numbers in his complaint where facts supporting each cause of action [can] be found.” MFSR 2.
Castro can simply identify the paragraph numbers in the FAC where facts supporting each claim
can be found in far less than the seventy-four pages he requests.
C.

Castr o’s Request to Extend Page Length Should be Kept to a Reasonable
Extension

In conjunction with the MFSR, Castro also filed a Motion to Extend Page Length
(“MEPL”) for one of his anticipated bifurcated responses, seeking leave to file a thirty-four page
response. The requested extension is greatly in excess of what would be considered a “concise

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statement of the reasons and opposition to the motion” under LCR CV-7(d). Indeed, the request
is made even more inappropriate by the fact that Castro has voluntarily dismissed several of the
claims that EMI attacked in its 15-page MTD. Castro now has fewer arguments to make, and
should be able to do so in a single opposition brief of no more than 20 pages. Castro also spends
over 10 pages in his brief discussing the “purpose of a Declaratory Judgment action,” the
“purpose and history of the Lanham Act,” and how a trademark “gets registered as a trademark.”
This Court is familiar with all three of these areas so this extensive exposition is unnecessary.
III.

CONCLUSION
For the foregoing reasons, EMI respectfully requests that Castro be denied leave to file

separate responses to EMI’s MTD. Castro should be ordered to re-file a single opposition brief
of no more than 20 pages.

Respectfully submitted,
Dated: December 21, 2010
By: /s/ William G. Barber
William G. Barber
PIRKEY BARBER LLP
Texas State Bar No. 01713050
600 Congress Avenue, Suite 2120
Austin, TX 78701
Tel: [phone]
Fax: [phone]
Perry J. Viscounty
Jennifer L. Barry
LATHAM & WATKINS LLP
Admitted Pro Hac Vice
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626-1925
[phone] / [phone] fax
ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE
I hereby certify the on December 21, 2010, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system which will send notification of such filing to the
following:
Daniel R. Castro
CASTRO & BAKER, LLP
7800 Shoal Creek Blvd., Suite 100N
Austin, TX 78757
/s/ William G. Barber
William G. Barber

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