Interval Licensing LLC v. AOL, Inc. et al

Filing 136

REPLY, filed by Defendant Yahoo! Inc, TO RESPONSE to #63 MOTION to Dismiss Party or Sever for Misjoinder Pursuant to Fed. R. Civ. P. 20 and 21 (Walters, Mark)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 v. AOL, INC.; APPLE, INC.; eBAY, INC.; FACEBOOK, INC.; GOOGLE INC.; NETFLIX, INC.; OFFICE DEPOT, INC.; OFFICEMAX INC.; STAPLES, INC.; YAHOO! INC.; and YOUTUBE, LLC, Defendants.

Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE INTERVAL LICENSING LLC, Plaintiff, Civil Case No. 2:10-CV-01385-MJP DEFENDANT YAHOO! INC.'S NOTICE OF JOINDER IN DEFENDANTS GOOGLE INC. AND YOUTUBE, LLC'S REPLY IN SUPPORT OF THEIR MOTION TO DISMISS OR SEVER FOR MISJOINDER PURSUANT TO FED. R. CIV. P. 20 AND 21 Noted for consideration on: November 12, 2010 ORAL ARGUMENT REQUESTED

PLEASE TAKE NOTICE that defendant Yahoo! Inc.("Yahoo!") joins in defendants Google Inc. ("Google") and YouTube, LLC's ("YouTube") reply in support of their motion to dismiss or sever from the above-captioned action for misjoinder for all the reasons therein. Additionally, Interval's statement at Dkt. No. 122 fn. 2 erroneously suggests that Yahoo! will not seek transfer under 28 U.S.C. § 1404(a). Yahoo!'s joinder in Google's motion to dismiss does not so indicate. To be clear, Yahoo! has not waived its right to seek transfer to another court under section 1404 after this Court has considered the motion to dismiss or sever for misjoinder.
DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 1 Civil Case No. 2:10-CV-01385-MJP

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Yahoo! respectfully requests that the Court dismiss Yahoo! from this case, or sever the claims against Yahoo!, because joinder of defendants here is improper, for the reasons set forth in Google and YouTube's motion to dismiss or sever, the reply filed in further support of that motion, and all other supporting papers. Dated: November 12, 2010 Respectfully submitted, By: /s/ Mark P. Walters Mark P. Walters (WSBA #30819) Dario A. Machleidt (WSBA #41860) FROMMER LAWRENCE & HAUG LLP 1191 Second Avenue Suite 2000 Seattle, WA 98101 Tel: [phone] Fax: [phone] [e-mail] [e-mail] and Admitted Pro Hac Vice Michael A. Jacobs Matthew I. Kreeger Richard S.J. Hung Francis Ho Eric W. Ow MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Tel: [phone] Fax: [phone] Attorneys for Defendant YAHOO! INC.

DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 2 Civil Case No. 2:10-CV-01385-MJP

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Justin A. Nelson Matthew R. Berry SUSMAN GODFREY 1201 Third Ave., Suite 3800 Seattle, WA 98101

CERTIFICATE OF SERVICE I, Mark P. Walters, hereby certify that on November 12, 2010, I caused the foregoing DEFENDANT YAHOO! INC.'S NOTICE OF JOINDER IN DEFENDANTS GOOGLE INC. AND YOUTUBE, LLC'S REPLY IN SUPPORT OF THEIR MOTION TO DISMISS OR SEVER FOR MISJOINDER PURSUANT TO FED. R. CIV. P. 20 AND 21 to be served on the following parties as indicated below: [] [] [X] [] [] [] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] [e-mail]

Attorneys for Plaintiff Interval Licensing LLC

Max L. Tribble SUSMAN GODFREY 1000 Louisiana St., Suite 5100 Houston, TX 77002 Attorneys for Plaintiff Interval Licensing LLC

[] [] [X] [] [] [] [] [] [X] [] [] []

Eric J. Enger Michael F. Heim Nathan J. Davis HEIM PAYNE & CHORUSH, LLP 600 Travis Street, Suite 6710 Houston, TX 77002 Attorneys for Plaintiff Interval Licensing LLC

DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 3 Civil Case No. 2:10-CV-01385-MJP

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Cortney S. Alexander FINNEGAN HENDERSON FARABOW GARRETT & DUNNER LLP (GA) Suntrust Plaza 303 Peachtree Street NE Ste 3500 Atlanta, GA 30308 404-653-6409 Attorneys for Defendant AOL Inc. Elliott C. Cook Robert L. Burns FINNEGAN HENDERSON FARABOW GARRETT & DUNNER LLP (VA) Two Freedom Square 11955 Freedom Drive Reston, VA 20190-5675 571-203-2738 Attorneys for Defendant AOL Inc. Gerald F. Ivey FINNEGAN HENDERSON FARABOW GARRETT & DUNNER (DC) 901 New York Avenue NW Washington, DC 20001-4413 202-408-4110 Attorneys for Defendant AOL Inc. Brian M. Berliner Neil L. Yang O'MELVENY & MYERS LLP 400 South Hope Street, Suite 1050 Los Angeles, CA 90071 Attorneys for Defendant Apple Inc.

[] [] [X] [] [] []

By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail]

[] [] [X] [] [] []

By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail]

[] [] [X] [] [] []

By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail]

[] [] [X] [] [] []

DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 4 Civil Case No. 2:10-CV-01385-MJP

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

David S. Almeling George A Riley O'MELVENY & MYERS (SF) Two Embarcadero Center, 28th Floor San Francisco, CA 94111-3823 Attorneys for Defendant Apple Inc.

[] [] [X] [] [] []

By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] [e-mail]

Jeremy E. Roller Scott T. Wilsdon YARMUTH WILSDON CALFO PLLC 818 Stewart Street, Suite 1400 SEATTLE, WA 98101 Attorneys for Defendant Apple Inc.

[] [] [X] [] [] []

Arthur W. Harrigan , Jr. Christopher T Wion DANIELSON HARRIGAN LEYH & TOLLEFSON 999 Third Avenue, Suite 4400 Seattle, WA 98104 206-623-1700 Attorneys for Defendant eBay Inc. J. Christopher Carraway John D. Vandenberg KLARQUIST SPARKMAN (OR) 121 SW Salmon Street, Suite 1600 Portland, OR 97204-2988 Attorneys for eBay, Inc., Netflix, Inc., Office Depot, Inc., and Staples, Inc.

[] [] [X] [] [] []

[] [] [X] [] [] []

Aneelah Afzali Scott A. W. Johnson Shannon M. Jost STOKES LAWRENCE 800 5th Avenue, Suite 4000 Seattle, WA 98104-3179 Attorneys for Defendants Google Inc. and YouTube LLC
DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 5 Civil Case No. 2:10-CV-01385-MJP

[] [] [X] [] [] []

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 6 Civil Case No. 2:10-CV-01385-MJP

Christopher B. Durbin COOLEY LLP 719 Second Avenue, Suite 900 Seattle, WA 98104-1732 206-452-8700 Attorneys for Defendant Facebook Inc. Christen M. R. Dubois Elizabeth L. Stameshkin Heidi L. Keefe Mark R. Weinstein COOLEY LLP 3175 HANOVER STREET PALO ALTO, CA 94304-1130 650-843-5000 Attorneys for Defendant Facebook Inc.

[] [] [X] [] [] [] [] [] [X] [] [] []

By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] [e-mail] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] [e-mail] [e-mail]

Michael G Rhodes COOLEY LLP (SF) 101 California Street 5th Floor San Francisco, CA 94111-5800 415-493-2181 Attorneys for Defendant Facebook Inc. Dimitrios T. Drivas John Handy Kevin X. McGann Aaron Chase WHITE & CASE 1155 Avenue of the Americas New York, NY 10036 Attorneys for Defendants Google Inc., and YouTube LLC

] [] [X] [] [] [] [] [] [X] [] [] []

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Warren S. Heit WHITE & CASE 3000 El Camino Real Bldg. 5, 9th Floor Palo Alto, CA 94306 Attorneys for Defendants Google Inc., and YouTube LLC Wendi R. Schepler WHITE & CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, CA 94306 650-213-0323 Attorneys for Defendants Google Inc., and YouTube LLC Kevin C. Baumgardner Steven W. Fogg CORR CRONIN MICHELSON BAUMGARDNER & PREECE 1001 4th Ave., Suite 3900 Seattle, WA 98154-1051 Attorneys for Defendant OfficeMax Inc. Jeffrey D. Neumeyer OFFICEMAX INCORPORATED 1111 West Jefferson Street PO Box 50 Boise, ID 83728 Attorneys for Defendant OfficeMax Inc.

[] [] [X] [] [] []

By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

[] [] [X] [] [] []

[] [] [X] [] [] []

[] [] [X] [] [] [] [] [] [X] [] [] []

Eric W. Ow Francis Ho Matthew I. Kreeger Michael A. Jacobs Richard S. J. Hung MORRISON & FORESTER 425 Market Street San Francisco, CA 94105-2482 Attorneys for Defendants Yahoo! Inc.

DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 7 Civil Case No. 2:10-CV-01385-MJP

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Douglas S. Rupert John S. Letchinger

WILDMAN, HARROLD, ALLEN & DIXON LLP

225 West Wacker Drive, Suite 2800 Chicago, ILL 60606 Attorneys for Defendant OfficeMax Inc.

[] [] [X] [] [] []

By United States Mail By Legal Messenger By Electronic CM/ECF By Overnight Express Mail By Facsimile By Email [by agreement of counsel] [e-mail] [e-mail]

DATED: November 12, 2010

/s/ Mark P. Walters for Mark P. Walters, WSBA No. 30819 Dario A. Machleidt, WSBA No. 41860 FROMMER LAWRENCE & HAUG LLP

DEFS. REPLY IN SUPPORT OF MOTION TO DISMISS OR SEVER - 8 Civil Case No. 2:10-CV-01385-MJP

FROMMER LAWRENCE & HAUG LLP
1191 SECOND AVENUE SEATTLE, WASHINGTON 98101 [phone]