J2 Global Inc et al v. Fax87.Com et al

NOTICE OF MOTION AND MOTION to Dismiss Defendant Farjad Fani's Counterclaims and to Strike His Third Affirmative Defense

C.D. Cal.April 7, 2017

NOTICE OF MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Guy Ruttenberg, Bar No. 207937 guy@ruttenbergiplaw.com Bassil Madanat, Bar No. 285280 bassil@ruttenbergiplaw.com RUTTENBERG IP LAW, A PROFESSIONAL CORPORATION 1801 Century Park East, Suite 1920 Los Angeles, CA 90067 Telephone: (310) 627-2270 Facsimile: (310) 627-2260 Attorneys for Plaintiffs j2 Cloud Services, LLC and Advanced Messaging Technologies, Inc. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA j2 CLOUD SERVICES, LLC, AND ADVANCED MESSAGING TECHNOLOGIES, INC. Plaintiffs, v. FAX87, FARJAD FANI, MATT JOHNSON FINANCE, INC., ONE VOIX, MIRALUNA CABERTE YARDAN, STEVEN THONG WAY SEN, ROBERT BEAULIEU, ONLINEFAXES, SOLIDFAX, FAXVISION, EFAX4LESS, MYPHONEFAX, RESELLFAX, AND DOES 1-10 Defendants. Case No. 13-cv-05353-DDP (AJWx) PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DISMISS DEFENDANT FARJAD FANI’S COUNTERCLAIMS AND STRIKE HIS THIRD AFFIRMATIVE DEFENSE Date: May 8, 2017 Time: 10:00 am Courtroom: 9C Judge: Hon. Dean D. Pregerson Case 2:13-cv-05353-DDP-AJW Document 284 Filed 04/07/17 Page 1 of 3 Page ID #:6239 1 NOTICE OF MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on May 8, 2017 at 10:00 a.m., or as soon thereafter as the Court allows, in Courtroom 9C, located at 350 W. 1st Street, Los Angeles, California 90012, the Plaintiffs j2 Cloud Services, LLC (formerly known as j2 Cloud Services, Inc.) and Advanced Messaging Technologies, Inc. (collectively, “j2”) will and hereby move the Court to (i) dismiss pursuant to Fed. R. Civ. P. 12(b)(6) Defendant Farjad Fani’s first through fourth Counterclaims, and (ii) strike pursuant to Fed. R. Civ. P. 12(f) Mr. Fani’s third affirmative defense (which mirrors his second and fourth Counterclaims). This motion is based on this Notice of Motion and the Memorandum of Points and Authorities in Support thereof, all attached exhibits, all other pleadings and papers on record in this action, any argument at the hearing on this matter, and such other matters as the Court deems proper. Pursuant to Local Rule 7-3, j2’s counsel met and conferred telephonically with Mr. Fani’s counsel (Ms. Landry) regarding this motion starting with email correspondence and a live discussion on December 13, 2016, (when Mr. Fani’s counsel agreed to consider the points raised by j2), followed by additional correspondence and a another telephone conference on April 5, 2017 (where Mr. Fani’s counsel finally confirmed that the defendant will not amend or withdrawn his pleadings in light of the points raised by j2). DATED: April 7, 2017 By: /s/ Guy Ruttenberg Guy Ruttenberg RUTTENBERG IP LAW, A PROFESSIONAL CORPORATION 1801 Century Park East, Suite 1920 Los Angeles, CA 90067 Telephone: (310) 627-2270 Facsimile: (310) 627-2260 guy@ruttenbergiplaw.com Attorney for Plaintiffs Case 2:13-cv-05353-DDP-AJW Document 284 Filed 04/07/17 Page 2 of 3 Page ID #:6240 CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I certify that I caused to be served counsel of record on April 7, 2017 with PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO DISMISS DEFENDANT FARJAD FANI’S COUNTERCLAIMS AND STRIKE HIS THIRD AFFIRMATIVE DEFENSE via CM/ECF. Executed on April 7, 2017 in Los Angeles, California. By: /s/ Guy Ruttenberg GUY RUTTENBERG Michelle L. Landry mlandry@plylaw.com Putterman Landry + Yu LLP 353 Sacramento St. Suite 560 San Francisco, CA 94111 (415) 839-8779 Joseph V. Mauch jmauch@sflaw.com Erick C. Howard ehoward@sflaw.com Miles Winder mwinder@sflaw.com Shartsis Friese and Ginsburg One Maritime Plaza, 18th Floor San Francisco, CA 94111 (415) 421-6500 David A. Thomas MyPhoneFax@kasowitz.com Kasowitz Benson Torres & Friedman LLP 2029 Century Park East Suite 2000N Los Angeles, CA 90067 (424) 288-7900 Case 2:13-cv-05353-DDP-AJW Document 284 Filed 04/07/17 Page 3 of 3 Page ID #:6241 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Guy Ruttenberg, Bar No. 207937 guy@ruttenbergiplaw.com Bassil Madanat, Bar No. 285280 bassil@ruttenbergiplaw.com RUTTENBERG IP LAW, A PROFESSIONAL CORPORATION 1801 Century Park East, Suite 1920 Los Angeles, CA 90067 Telephone: (310) 627-2270 Facsimile: (310) 627-2260 Attorneys for Plaintiffs j2 Cloud Services, LLC and Advanced Messaging Technologies, Inc. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA j2 CLOUD SERVICES, LLC, AND ADVANCED MESSAGING TECHNOLOGIES, INC. Plaintiffs, v. FAX87, FARJAD FANI, MATT JOHNSON FINANCE, INC., ONE VOIX, MIRALUNA CABERTE YARDAN, STEVEN THONG WAY SEN, ROBERT BEAULIEU, ONLINEFAXES, SOLIDFAX, FAXVISION, EFAX4LESS, MYPHONEFAX, RESELLFAX, AND DOES 1-10 Defendants. Case No. 13-cv-05353-DDP (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO DISMISS DEFENDANT FARJAD FANI’S COUNTERCLAIMS AND STRIKE HIS THIRD AFFIRMATIVE DEFENSE Date: May 8, 2017 Time: 10:00 am Courtroom: 9C Judge: Hon. Dean D. Pregerson Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 1 of 9 Page ID #:6242 1 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiffs j2 Cloud Services, LLC and Advanced Messaging Technologies, Inc. (collectively, “j2”) move to dismiss under Fed. R. Civ. P. 12(b)(6) Defendant Farjad Fani’s counterclaims for declaratory judgment of non-infringement and invalidity. j2 also moves under Fed. R. Civ. P. 12(f) to strike Mr. Fani’s third affirmative defense for invalidity, which simply mirrors his invalidity counterclaims. These counterclaims and affirmative defense are entirely conclusory and, therefore, fail to meet the pleading requirements under Iqbal and Twombly. Although some courts previously permitted such conclusory counterclaims under the old Form 18, that Form has since been discontinued. As a result, to the extent there was any doubt as to the viability of such conclusory claims, multiple courts have since confirmed that such conclusory allegations are insufficient to satisfy the pleading requirements. See Roland Corp. v. Inmusicbrands, Inc. No. 2:16-CV-06256-CBM-AJWx, 2017 WL 513924, at *2-*3 (C.D. Cal. Jan. 26, 2017); RAH Color Techs. LLC v. Ricoh USA Inc., 194 F. Supp. 3d 346, 350-51 (E.D. Pa. 2016). For months now, j2 has advised Mr. Fani that his counterclaims are improperly pled. j2 also sent Mr. Fani and his counsel the case law that confirms this. In December 2016, Mr. Fani’s counsel promised to look into the matter, but failed to respond. Most recently, on April 5, 2017, Mr. Fani’s counsel confirmed that he will not amend his counterclaims. Accordingly, j2 respectfully requests that the counterclaims be dismissed and the third affirmative defense be stricken. II. FACTUAL BACKGROUND The Court is familiar with the facts and background of this case based upon prior pleadings, including Plaintiffs’ Motion for Default Judgment (Dkt. No. 158), Application for Right to Attach Order and Issuance of Writ of Attachment (Dkt. No. 182-1) and Opposition to MyPhoneFax.com, LLC’s Motion to Vacate Default Judgment and Order (Dkt. No. 258). Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 2 of 9 Page ID #:6243 2 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In relevant part, j2 sued Mr. Fani and his related companies for patent infringement in 2011, asserting (among others) U.S. Patent No. 6,208,638 (the “’638 Patent”). (Case No. 2:11-cv-02618-DDP-AJW, Dkt. No. 1). In the 2011 litigation, Mr. Fani and the other defendants counterclaimed for non-infringement and invalidity of the patents, including with respect to the ’638 Patent. (Case No. 2:11- cv-02618-DDP-AJW, Dkt. No. 15). The parties settled the 2011 litigation by entering into a settlement agreement and patent license agreement. (Dkt. No. 43, FAC ¶ 46; Dkt. No. 195, Fani’s Ans. ¶ 46). The settlement agreement covers the ’638 patent, as well as “all issued patents under which Licensors have the right, at any time during the Term of [the] Agreement, to grant licenses to Licensee.” (Dkt. No. 43-16, License Ag’t at 2; see Dkt. No. 43, FAC ¶ 49). As part of the settlement agreement, the defendants agreed not to challenge the validity of any licensed patents. (Dkt. No. 43-15, Settlement Ag’t § 2.2). As part of the settlement, Mr. Fani and the other defendants also dismissed with prejudice their counterclaims challenging validity or infringement. (Dkt. No. 43-15, Settlement Ag’t § 2.5). Mr. Fani and the other defendants failed to perform. Instead, Mr. Fani and his related companies started offering the infringing services under various new websites and company names in order to defraud j2. (Dkt. No. 43, FAC ¶¶ 147-58). Mr. Fani and the related defendants have not paid any royalties under the patent license agreement since at least the beginning of 2013. (Dkt. No. 43, FAC ¶ 151; Dkt. No. 195, Fani’s Ans. ¶ 151). j2 filed suit on July 24, 2013. (Dkt. No. 1). j2 filed the operative First Amended and Supplemental Complaint on April 15, 2016. (Dkt. No. 43). Mr. Fani evaded service for years, but he was finally deemed to be served on July 1, 2016. (Dkt. No. 112). On August 15, 2016, Mr. Fani moved to dismiss the fraud count under Fed. R. Civ. P. 12(b)(6), but the Court denied that motion on November 18, 2016. (Dkt. Nos. 114, 169). Mr. Fani finally answered the Complaint on Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 3 of 9 Page ID #:6244 3 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 December 12, 2016. (Dkt. No. 191). In connection with his Answer, Mr. Fani also served counterclaims. (Id.). On December 13, 2016, j2’s counsel wrote to Mr. Fani’s counsel, pointing out the deficiencies in the Counterclaims. (Ex. 1). In the meantime, the Court struck Mr. Fani’s Answer (Dkt. No. 194), and Mr. Fani re-filed his Answer on December 13, 2016. (Dkt. No. 195). After some preliminary discussions, Mr. Fani’s counsel agreed to consider j2’s arguments. (Ex. 1). But Mr. Fani has never responded. Accordingly, more recently, j2 again asked Mr. Fani’s counsel whether Mr. Fani intends to amend his Counterclaims in lieu of a motion to dismiss. On April 5, 2017, Mr. Fani’s counsel confirmed that the defendant has no intention of doing so. This motion follows. III. LEGAL STANDARD Pursuant to Fed. R. Civ. P. 12(b)(6), a court may dismiss a claim or counterclaim that fails to give fair notice to the opposing party and enable the opposing party to defend itself effectively. Roland Corp., 2017 WL 513924, at *1 (dismissing insufficiently pled counterclaim for declaratory judgment of patent invalidity); Sliding Door Co. v. KLS Doors, LLC, No. EDVC 13-00196 JGB (DTBx), 2013 WL 2090298, at *4 (C.D. Cal. May 1, 2013) (dismissing insufficiently pled counterclaims for invalidity and non-infringement). This standard applies to counterclaims for declaratory relief of patent invalidity and non-infringement. Roland Corp., 2017 WL 513924, at *2; Sliding Door Co., 2013 WL 2090298, at *4; RAH Color Techs., 194 F. Supp. 3d at 350-51. Additionally, a “counterclaim for declaratory judgment for non-infringement . . . presents an issue that is already before the Court in Plaintiff’s Complaint” and “does not serve any useful purpose.” Sliding Door Co., 2013 WL 2090298, at *4. Courts dismiss such duplicative claims. Id. Under Fed. R. Civ. P. 12(f), a court may strike a “redundant, immaterial, impertinent or scandalous matter” in a pleading. Roland Corp., 2017 WL 513924, at *1 (quoting Fed. R. Civ. P. 12(f)). This applies to affirmative defenses. See id. at *2. Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 4 of 9 Page ID #:6245 4 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 An affirmative defense is insufficient when it fails to provide the plaintiff with fair notice of the defense asserted. 578539 B.C., Ltd. v. Kortz, No. CV 14-04375 MMM (MANx), 2014 WL 12572679, at *7 (C.D. Cal. Oct. 16, 2014). Courts routinely strike conclusory “invalidity” affirmative defenses that fail to provide the plaintiff with fair notice of the basis for invalidity. Roland Corp., 2017 WL 513924, at *2 (striking insufficient invalidity affirmative defense); 578539 B.C., Ltd., 2014 WL 12572679, at *8 (same). IV. ARGUMENT A. Mr. Fani’s Counterclaims for Declaratory Judgment of Non- Infringement Should Be Dismissed Under Fed. R. Civ. P. 12(b)(6). Mr. Fani’s first and third counterclaims for declaratory judgment of non- infringement with respect to the ‘699 and ‘220 patents must be dismissed for two reasons. As an initial matter, declaratory judgment of non-infringement is not a cognizable counterclaim in an infringement action. See Sliding Door Co., 2013 WL 2090298, at *3-*4. Mr. Fani’s counterclaim is duplicative of j2’s initial infringement claim, and thus “does not serve any useful purpose.” Id. at *4. The issue of infringement is already before the court. Id. Mr. Fani should not be allowed to waste j2’s, or this Court’s time, by rehashing the infringement issue. Id. Further, Mr. Fani fails to properly plead his counterclaim for declaratory judgment of non-infringement. Conclusory non-infringement counterclaims that lack plausibility and particularized facts sufficient to state a claim for relief must be dismissed. RAH Color Techs. LLC, 194 F. Supp. 3d at 350-53. A defendant’s mere recitations that it does not infringe are insufficient to withstand a 12(b)(6) motion to dismiss. Id. at 352-53 (dismissing counterclaim that Defendant “has not infringed and does not infringe, either directly, indirectly, contributory [sic], or by inducement, any valid and enforceable claims of the [asserted] patent either literally or under the doctrine of equivalents, willfully, or otherwise.”). Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 5 of 9 Page ID #:6246 5 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Mr. Fani’s conclusory counterclaims should be dismissed. With respect to his first counterclaim, Mr. Fani merely attests that “[he] does not infringe the ’699 patent because [he] does not practice, nor have the means to practice each element of any valid and enforceable claims of the ’699 patent.” (Dkt. No. 195 at 58 ¶ 10). With respect to his third counterclaim, Mr. Fani likewise contends in conclusory form that “[he] does not infringe the ’220 patent or contribute to or induce the infringement by others because [he] does not practice, nor does he have the means to practice, each element of any valid and enforceable claims of the ’220 patent.” (Dkt. No. 195 at 59 ¶ 18). Both of these counterclaims “lack . . . particularized facts required to sufficiently state a claim for relief.” RAH Color Techs. LLC, 194 F. Supp. 3d at 350- 53 (dismissing non-infringement counterclaims). Mr. Fani’s conclusory non-infringement counterclaims should be dismissed. B. Mr. Fani’s Counterclaims for Declaratory Judgment of Invalidity Should Be Dismissed Under Fed. R. Civ. P. 12(b)(6). Mr. Fani’s invalidity counterclaims also fail to state a cause of action, and therefore his second and fourth counterclaims should be dismissed. Indeed, Mr. Fani’s allegations are entirely conclusory and, therefore, fail to meet the pleading requirements under the Supreme Court’s precedent in Twombly1 and Iqbal.2 Several courts have recently explained that such conclusory allegations fail to meet the pleading standards. For example, in Roland Corp., the Central District of California dismissed conclusory invalidity counterclaims that a patent was “invalid for failure to comply with the patent laws, including, but not limited to, 35 U.S.C. §§ 102, 103 and/or 112.” 2017 WL 513924, at *2; see also RAH Color Techs. LLC, 194 F. Supp. 3d at 350-51 (dismissing counterclaim that said patent was “invalid for failure to satisfy one or more of the conditions for patentability specified in Title 35 1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 2 Ashcroft v. Iqbal, 556 U.S. 662 (2009). Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 6 of 9 Page ID #:6247 6 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the United States Code, including but not limited to §§ 101, 102, 103, 112 and 132.”). Here, Mr. Fani’s allegations are decidedly insufficient and must be dismissed under the governing standards. Apart from allegations concerning jurisdiction, Mr. Fani simply alleges that the two patents “are invalid and void for failure to comply with the requirements of the patent laws of the United States, 35 U.S.C. § 100 et seq., including, but not limited to, those set forth in 35 U.S.C. §§ 101, 102, 103, 112, and/or 132.” (Dkt. No. 195 at 58-59 ¶¶ 14, 22). He does not specify any basis whatsoever, much less any facts, to support his contention that the patents “are invalid and void.” He has not put j2 on notice as to the basis for his allegations in any way. As such, the counterclaims should be dismissed. C. Mr. Fani’s Third Affirmative Defense for Invalidity Should Be Stricken Under Fed. R. Civ. P. 12(f). As explained above, the standard for striking an affirmative defense is the same as the standard for evaluating a motion to dismiss, namely whether it provides fair notice to the plaintiff. See 578539 B.C., Ltd., 2014 WL 12572679, at *7. Courts strike conclusory invalidity defenses that fail to provide fair notice to the plaintiff. Roland Corp., 2017 WL 513924, at *2-*3 (striking invalidity affirmative defense when “Defendant fail[ed] to provide Plaintiff with fair notice of the basis for its Third Affirmative Defense re: invalidity.”); 578539 B.C., Ltd., 2014 WL 12572679, at *8 (striking conclusory invalidity affirmative defense in trademark context). “The rationale underlying Twombly and Iqbal indicates that it should apply equally to the pleading of affirmative defenses.” 578539 B.C., Ltd., 2014 WL 12572679, at *11. As with his counterclaims, Mr. Fani’s invalidity defense is entirely conclusory. In purely conclusory form, Mr. Fani alleges, “Upon information and belief, Plaintiffs are wholly or partially barred from the relief that it seeks because the asserted claims of the ’699 patent and the ’220 patent are invalid for failure to comply with one or more of the conditions and requirements of patentability as set Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 7 of 9 Page ID #:6248 7 MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 forth in the Patent Laws of the United States, 35 U.S.C. § 100 et seq., including but not limited to, those set forth in 35 U.S.C. §§ 101, 102, 103, 112, and/or 132, and the rules, regulations, and law pertaining thereto.” (Dkt. No. 195 at 52:15-20). This is precisely the type of conclusory and superficial affirmative defense that courts strike. Roland Corp., 2017 WL 513924, at *2-*3; 578539 B.C., Ltd., 2014 WL 12572679, at *8. Mr. Fani does not specify any basis whatsoever, much less any facts, supporting his contention that the patents are invalid. Accordingly, this defense should be stricken. V. CONCLUSION For the reasons set forth above, j2 respectfully requests that the Court grant the instant motion. Mr. Fani’s counterclaims should be dismissed. His third affirmative defense should be stricken. Further, because he has failed for months to amend these plainly deficient pleadings, Mr. Fani should not be afforded leave to amend. DATED: April 7, 2017 By: /s/ Guy Ruttenberg Guy Ruttenberg RUTTENBERG IP LAW, A PROFESSIONAL CORPORATION 1801 Century Park East, Suite 1920 Los Angeles, CA 90067 Telephone: (310) 627-2270 Facsimile: (310) 627-2260 guy@ruttenbergiplaw.com Attorney for Plaintiffs Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 8 of 9 Page ID #:6249 CERTIFICATE OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I certify that I caused to be served counsel of record on April 7, 2017 with MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO DISMISS DEFENDANT FARJAD FANI’S COUNTERCLAIMS AND STRIKE HIS THIRD AFFIRMATIVE DEFENSE via CM/ECF. Executed on April 7, 2017 in Los Angeles, California. By: /s/ Guy Ruttenberg GUY RUTTENBERG Michelle L. Landry mlandry@plylaw.com Putterman Landry + Yu LLP 353 Sacramento St. Suite 560 San Francisco, CA 94111 (415) 839-8779 Joseph V. Mauch jmauch@sflaw.com Erick C. Howard ehoward@sflaw.com Miles Winder mwinder@sflaw.com Shartsis Friese and Ginsburg One Maritime Plaza, 18th Floor San Francisco, CA 94111 (415) 421-6500 David A. Thomas MyPhoneFax@kasowitz.com Kasowitz Benson Torres & Friedman LLP 2029 Century Park East Suite 2000N Los Angeles, CA 90067 (424) 288-7900 Case 2:13-cv-05353-DDP-AJW Document 284-1 Filed 04/07/17 Page 9 of 9 Page ID #:6250  Case 2:13-cv-05353-DDP-AJW Document 284-2 Filed 04/07/17 Page 1 of 5 Page ID #:6251 1 From: Guy Ruttenberg Sent: Tuesday, December 13, 2016 3:46 PM To: Michelle Landry Subject: RE: Answer That’s fine, assuming you agree our motion/response won’t be due until 14 days later. Guy Ruttenberg Ruttenberg IP Law, A Professional Corporation _________________________________________ 1801 Century Park East, Suite 1920 Los Angeles, CA 90067 Office: +1 310 627 2271 Mobile: +1 213 268 1270 Facsimile: +1 310 627 2260 NOTICE: The information contained in this e-mail and any accompanying documents is confidential, may be privileged, and is intended solely for the person and/or entity to whom it is addressed (i.e. those identified in the "To" and "cc" box). This information is the property of Ruttenberg IP Law, A Professional Corporation. Unauthorized review, use, disclosure, or copying of this communication, or any part thereof, is strictly prohibited and may be unlawful. If you have received this e- mail in error, please return the e-mail and attachments to the sender and delete the e-mail and attachments and any copy from your system. From: Michelle Landry [mailto:mlandry@plylaw.com] Sent: Tuesday, December 13, 2016 3:40 PM To: Guy Ruttenberg Subject: Re: Answer Thanks Guy. I certainly want to avoid a motion, so of course I want to carefully consider your position. I am on vacation 12/16-26 and could do a meet and confer call when I get back on the 27th. Michelle L. Landry PUTTERMAN|LANDRY| YU LLP www.plylaw.com 353 Sacramento Street | Suite 560 San Francisco, CA 94111 mlandry@plylaw.com Tel. 415.839.8779 | Direct. 415.613.6905 | Fax. 415.737.1363 Case 2:13-cv-05353-DDP-AJW Document 284-2 Filed 04/07/17 Page 2 of 5 Page ID #:6252 2 From: Guy Ruttenberg Date: Tuesday, December 13, 2016 at 3:35 PM To: michelle landry Subject: RE: Answer Hi Michelle – I’m happy to work with you, but I’m not sure what you’re asking for. In your previous email, you asked for another week to correct your answer. If you need more time than that, just let me know what you propose. Once you file your Answer, we can hold off on our motion to dismiss if you are considering amending the counterclaims and agree to do so in a specified time. Just let me know. Guy Ruttenberg Ruttenberg IP Law, A Professional Corporation _________________________________________ 1801 Century Park East, Suite 1920 Los Angeles, CA 90067 Office: +1 310 627 2271 Mobile: +1 213 268 1270 Facsimile: +1 310 627 2260 NOTICE: The information contained in this e-mail and any accompanying documents is confidential, may be privileged, and is intended solely for the person and/or entity to whom it is addressed (i.e. those identified in the "To" and "cc" box). This information is the property of Ruttenberg IP Law, A Professional Corporation. Unauthorized review, use, disclosure, or copying of this communication, or any part thereof, is strictly prohibited and may be unlawful. If you have received this e- mail in error, please return the e-mail and attachments to the sender and delete the e-mail and attachments and any copy from your system. From: Michelle Landry [mailto:mlandry@plylaw.com] Sent: Tuesday, December 13, 2016 3:11 PM To: Guy Ruttenberg Subject: Re: Answer I’m in panama Friday, as I previously advised. Michelle L. Landry PUTTERMAN|LANDRY| YU LLP www.plylaw.com 353 Sacramento Street | Suite 560 San Francisco, CA 94111 mlandry@plylaw.com Tel. 415.839.8779 | Direct. 415.613.6905 | Fax. 415.737.1363 From: Guy Ruttenberg Date: Tuesday, December 13, 2016 at 3:08 PM To: michelle landry Subject: Re: Answer Case 2:13-cv-05353-DDP-AJW Document 284-2 Filed 04/07/17 Page 3 of 5 Page ID #:6253 3 Go ahead and file today. Please accept my email as a request under L.R. 7-3 to meet and confer. If you want to fix it next week, I won't oppose the amended counterclaims. Otherwise, we will file a motion to dismiss under Rule 12(b)(6). Sent from my iPhone On Dec 13, 2016, at 2:36 PM, Michelle Landry wrote: Thanks if you want to give me another week I can look into the pleading issue further; otherwise I need to file today so as not to be untimely Michelle L. Landry PUTTERMAN|LANDRY| YU LLP www.plylaw.com 353 Sacramento Street | Suite 560 San Francisco, CA 94111 mlandry@plylaw.com Tel. 415.839.8779 | Direct. 415.613.6905 | Fax. 415.737.1363 From: Guy Ruttenberg Date: Tuesday, December 13, 2016 at 1:23 PM To: michelle landry Subject: RE: Answer Paragraph 1 of the counterclaim. You abbreviate the ’699 patent as the ’638 patent. Also, all of Mr. Fani’s counterclaims fail to not meet the pleading requirements under Fed. R. Civ. P. 12(b)(6). See RAH Color Techs. LLC v. Ricoh USA Inc., No. 2:15-CV-05203-JCJ, 2016 WL 3632720, at *4 (E.D. Pa. July 7, 2016). Guy Ruttenberg Ruttenberg IP Law, A Professional Corporation _________________________________________ 1801 Century Park East, Suite 1920 Los Angeles, CA 90067 Office: +1 310 627 2271 Mobile: +1 213 268 1270 Facsimile: +1 310 627 2260 NOTICE: The information contained in this e-mail and any accompanying documents is confidential, may be privileged, and is intended solely for the person and/or entity to whom it is addressed (i.e. those identified in the "To" and "cc" box). This information is the property of Ruttenberg IP Law, A Professional Corporation. Unauthorized review, use, disclosure, or copying of this communication, or any part thereof, is strictly prohibited and may be unlawful. If you have received this e-mail in error, please return the e-mail and attachments to the sender and delete the e-mail and attachments and any copy from your system. Case 2:13-cv-05353-DDP-AJW Document 284-2 Filed 04/07/17 Page 4 of 5 Page ID #:6254 4 From: Michelle Landry [mailto:mlandry@plylaw.com] Sent: Tuesday, December 13, 2016 12:47 PM To: Guy Ruttenberg Subject: Answer Where did you see the typo? thanks Michelle L. Landry PUTTERMAN|LANDRY| YU LLP www.plylaw.com 353 Sacramento Street | Suite 560 San Francisco, CA 94111 mlandry@plylaw.com Tel. 415.839.8779 | Direct. 415.613.6905 | Fax. 415.737.1363 Case 2:13-cv-05353-DDP-AJW Document 284-2 Filed 04/07/17 Page 5 of 5 Page ID #:6255 [PROPOSED] ORDER GRANTING MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA j2 CLOUD SERVICES, INC., AND ADVANCED MESSAGING TECHNOLOGIES, INC. Plaintiffs, v. FAX87, FARJAD FANI, MATT JOHNSON FINANCE, INC., ELNAZ FANI, ONE VOIX, MIRALUNA CABERTE YARDAN, STEVEN THONG WAY SEN, ROBERT BEAULIEU, CHARLES MONTGOMERY, ONLINEFAXES, SOLIDFAX, FAXVISION, EFAX4LESS, MYPHONEFAX, RESELLFAX, AND DOES 1-10 Defendants. CASE NO.: 13-cv-05353-DDP (AJWx) [PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS DEFENDANT FARJAD FANI’S COUNTERCLAIMS AND STRIKE HIS THIRD AFFIRMATIVE DEFENSE Case 2:13-cv-05353-DDP-AJW Document 284-3 Filed 04/07/17 Page 1 of 2 Page ID #:6256 1 [PROPOSED] ORDER GRANTING MOTION TO DISMISS AND STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Court, having considered the Plaintiffs’ Motion to Dismiss Defendant Farjad Fani’s Counterclaims and to Strike His Third Affirmative Defense, hereby GRANTS the Motion and ORDERS as follows: 1. Defendant Farjad Fani’s Counterclaims are dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6); and 2. Defendant Farjad Fani’s Third Affirmative Defense is stricken with prejudice pursuant to Fed. R. Civ. P. 12(f). DATED: By: Hon. Dean D. Pregerson Case 2:13-cv-05353-DDP-AJW Document 284-3 Filed 04/07/17 Page 2 of 2 Page ID #:6257