Interval Licensing LLC v. AOL, Inc. et al

Filing 84

NOTICE of Joinder JOINING #62 MOTION to Dismiss For Failure to State Claim Upon Which Relief can be Granted Pursuant to Fed. R. Civ. P. 12(B)(6), by Defendant Yahoo! Inc. (Attachments: #1 Proposed Order)(Walters, Mark)

Interval Licensing LLC v. eBay, Inc. et al

Doc. 84

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 1 Civil Case No. 2:10-CV-01385-MJP

Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE INTERVAL LICENSING LLC, Plaintiff, 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. Civil Case No. 2:10-CV-01385-MJP DEFENDANT YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO FED. R. CIV. P. 12(B)(6) NOTED ON MOTION CALENDAR: NOVEMBER 12, 2010

PLEASE TAKE NOTICE that defendant Yahoo! Inc. joins in defendants Google Inc. and YouTube, LLC's motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Docket Entry No. 64), for all the reasons therein. Additionally, Yahoo! notes that Interval Licensing's infringement allegations are so vague that Yahoo! cannot implement an appropriate document hold notice. Based on Interval's complaint, Yahoo! cannot identify which of its products and services may be relevant to the lawsuit. (Declaration of Kevin Kramer in Support of Yahoo!'s Notice of Joinder in Motion

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

Dockets.Justia.com

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

to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant To Fed. R. Civ. P. 12(b)(6) ("Kramer Decl.") ¶ 2-3.)) Yahoo! has hundreds of products and services, the vast majority of which involve websites, hardware, and/or software. (Kramer Decl. ¶ 4.) The complaint's lack of specificity leaves Yahoo! in the dark as to what activity allegedly infringes, and thus which documents need to be preserved. (Id.) Counsel for Yahoo! wrote a letter to counsel for Interval Licensing on October 6, 2010, asking for additional information as to which Yahoo! products and services are alleged to infringe the asserted patents, but has not yet received a response. (Kramer Decl. ¶¶ 6-7.) Thus, Yahoo! has been unable to issue an adequate litigation hold notice to ensure that its employees preserve the appropriate documents. For this reason, and for all of the other reasons stated in Google Inc. and Youtube, LLC's motion to dismiss, Yahoo! respectfully moves this court to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(B)(6).

DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 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
DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 3 Civil Case No. 2:10-CV-01385-MJP

Dated: October 21, 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.

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 hereby certify that on October 21, 2010, I caused the foregoing DEFENDANT YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PURSUANT TO FED. R. CIV. P. 12(B)(6) 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] [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]

Attorneys for Plaintiff Interval Licensing LLC

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

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

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

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

DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 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

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

[] [] [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]

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] [] [] []

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] [] [] []

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

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

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] [] [] []

DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 5 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

Aneelah Afzali Scott A. W. Johnson Shannon M. Jost STOKES LAWRENCE 800 5th Ave, Suite 4000 Seattle, WA 98104-3179 Attorneys for Defendants Google Inc., and YouTube LLC 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 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 Edward J. Bennett WILLIAMS & CONNOLLY 725 12th St. N.W. Washington, D.C. 20005-5901 Attorneys for Defendant Office Depot, 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] [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] [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]

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

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

DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 6 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

Michael D. Hunsinger THE HUNSINGER LAW FIRM 100 South King Street, Suite 400 Seattle, WA 98104 Attorneys for Defendant Office Depot, 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] 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]

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] [] [] [] [] [] [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.

DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 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: October 21, 2010

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

DEF. YAHOO! INC.'S NOTICE OF JOINDER IN MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM - 8 Civil Case No. 2:10-CV-01385-MJP

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