Google, Inc. v. Affinity Engines, Inc. Doc.

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Case 5:05-cv-00598-JW Document 33 Filed 05/05/2005 Page 1 of 2

1 G. HOPKINS GUY, III (STATE BAR NO. 124811)

ERIC L. WESENBERG (STATE BAR NO. 139696)
2 RORY G. BENS (STATE BAR NO. 201674)
GABRIEL M. RAMSEY (STATE BAR NO. 209218)
3 PETER J. O’ROURKE (STATE BAR NO. 221764)
ORRICK, HERRINGTON & SUTCLIFFE LLP
4 1000 Marsh Road
Menlo Park, CA 94025
5 Telephone: (650) 614-7400
Facsimile: (650) 614-7401
6
Attorneys for Defendant
7 AFFINITY ENGINES, INC.

8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

10 SAN JOSE DIVISION

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GOOGLE INC., a Delaware corporation, Case No. C 05-0598 JW (HRL)
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Plaintiff, AFFINITY ENGINES, INC.’S
13 OBJECTIONS TO GOOGLE INC.’S
v. LETTER REQUEST FOR
14 CONSIDERATION OF SURREPLY
AFFINITY ENGINES, INC., a Delaware
15 corporation, Date: May 9, 2005
Time: 9:00 a.m.
16 Defendant. Judge: Honorable James Ware
17

18 The Plaintiff’s letter requesting that the Court consider a surreply regarding

19 Affinity Engines, Inc.’s Motion to Dismiss and/or Stay Proceedings, previously scheduled for

20 hearing on May 9, 2005, is procedurally improper and should be denied.

21 Specifically, Google violated the local rules when filing its letter request for a

22 surreply. Civil L.R. 7-3(d) provides that “once a reply is filed, no additional memoranda, papers

23 or letters shall be filed without prior Court approval.” (emphasis added). Instead of properly

24 attempting to seek court approval for the filing of an additional brief, Google belatedly purported

25 to attempt to file a surreply along with its letter to the Court.

26 Google’s only mechanism for requesting court approval to file additional papers is

27 to move for administrative relief, as provided in Civil L.R. 7-11. Google failed to properly move

28 the Court to consider its surreply. Accordingly, its letter request should be denied.

Dockets.Justia.com
 Case 5:05-cv-00598-JW Document 33 Filed 05/05/2005 Page 2 of 2

1 The Court, by taking the motion off of calendar, has indicated to the parties that it

2 already possessed all necessary information to properly adjudicate this matter. Given that AEI

3 filed its reply brief on April 25, 2005, Google had over a week to properly move for permission to

4 file a surreply before receiving notice that the scheduled hearing was taken off calendar. Google

5 is not only attempting to improperly get the last word – in violation of the local rules – but is

6 wasting the Court’s resources, and AEI’s resources, by executing this last- minute maneuver. For

7 all of these reasons, AEI respectfully submits that Google’s surreply should not be considered by

8 the Court.

9
Respectfully submitted,
10
Dated: May 5, 2005 ORRICK, HERRINGTON & SUTCLIFFE LLP
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12 /s/ G. Hopkins Guy, III /s/

G. Hopkins Guy, III
13 Attorneys for Defendant Affinity Engines, Inc.

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AFFINITY ENGINES INC.’S OBJECTIONS TO GOOGLE’S

-2- LETTER REQUEST FOR SURREPLY