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Netflix’s Motion for Relief from July 28 Deadline in Case Management Order
and for Leave to File Amended Complaint
Case No. C 06 2361 WHA 378119.01
KEKER & VAN NEST, LLP
JEFFREY R. CHANIN - #103649
DARALYN J. DURIE - #169825
LEO L. LAM - #181861
710 Sansome Street
San Francisco, CA 94111-1704
Telephone: (415) 391-5400
Facsimile: (415) 397-7188
Attorneys for Plaintiff
NETFLIX, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NETFLIX, INC., a Delaware corporation,
Plaintiff,
v.
BLOCKBUSTER, INC., a Delaware
corporation, DOES 1-50,
Defendant.
Case No. C 06 2361 WHA
PLAINTIFF NETFLIX’S NOTICE OF MOTION
AND MOTION UNDER CIVIL L.R. 7-11 FOR
RELIEF FROM JULY 28, 2006 DEADLINE IN
CASE MANAGEMENT ORDER AND FOR LEAVE
TO FILE AMENDED COMPLAINT
Date: N/A per Civil L.R. 7-11
Judge: Hon. William Alsup
Case 3:06-cv-02361-WHA Document 33 Filed 08/02/2006 Page 1 of 3
Netflix, Inc. v. Blockbuster, Inc. Doc. 33
Dockets.Justia.com
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1
Netflix’s Motion for Relief from July 28 Deadline in Case Management Order
and for Leave to File Amended Complaint
Case No. C 06 2361 WHA 378119.01
Notice of Motion and Motion
PLEASE TAKE NOTICE that Plaintiff Netflix hereby moves under Civil L.R. 7-11 for
relief from the Court’s Case Management Order for the purpose of seeking leave to file its
Amended Complaint; and for such leave to file the Amended Complaint.
This Motion is based on this Notice of Motion and Motion; the below Memorandum in
support thereof; all pleadings and papers filed herein; oral argument of counsel if a hearing is
required by the Court; and any other materials that may be submitted at the hearing.
Memorandum in Support of Motion
On June 30, 2006, this Court issued its Case Management Order (“Order”) providing,
“Leave to add any new parties or pleading amendments must be sought by July 28, 2006.” Order
at 1 (¶ 3). Counsel for Netflix misinterpreted this Order to allow for amended pleadings to be
simply filed before the July 28 deadline. Because of this oversight, two days before the deadline,
on July 26, 2006, we filed Netflix’s Amended Complaint without an accompanying request for
leave. Declaration of Leo L. Lam (“Lam Decl.”), Exh. A.
Yesterday (on August 1, 2006), counsel for Blockbuster sent a letter bringing to our
attention that we had not obtained leave to file the Amended Complaint. Id., Exh. B. Upon
receipt of this letter, we rechecked the Order and informed counsel that we would immediately
take steps to rectify our mistake. Id., Exh. C. We also sought, but have not yet obtained,
Blockbuster’s stipulation to our filing of this motion for relief from the Order. Id., ¶ 5.
We regret this oversight and any inconvenience that it may have caused, and request
relief from the Order to allow leave for filing Netflix’s Amended Complaint. Blockbuster is not
prejudiced because it has had notice of the same Amended Complaint since July 26, when we
inadvertently filed it without a request for leave; and only three business days have elapsed since
the July 28 deadline. Further, aside from typographical and grammatical changes to the original
Complaint, the only amendment introduced by Netflix’s Amended Complaint is the addition of
an allegation of willful infringement to the First Cause of Action regarding infringement of U.S.
Patent No. 7,024,381 (“the ‘381 patent”). Compare Lam Decl., Exhibit C with Complaint (filed
April 4, 2006) at ¶ 10; and ¶¶ 2, 5 in Prayer for Relief. This allegation of willfulness is premised
Case 3:06-cv-02361-WHA Document 33 Filed 08/02/2006 Page 2 of 3
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Netflix’s Motion for Relief from July 28 Deadline in Case Management Order
and for Leave to File Amended Complaint
Case No. C 06 2361 WHA 378119.01
upon Blockbuster’s ongoing infringement of the ‘381 patent after receiving notice by the
Complaint that Netflix originally filed on April 4, 2006.
For the reasons explained above, we apologetically request that the Court grant relief
from the July 28 deadline for seeking leave to amend as specified in its Order, and allow the
Amended Complaint that we inadvertently filed without a request for leave on July 26.
Dated: August 2, 2006 Respectfully submitted,
KEKER & VAN NEST, LLP
By: /s/ Leo L. Lam ____________________
Leo L. Lam
Attorneys For Plaintiff NETFLIX, INC.
Case 3:06-cv-02361-WHA Document 33 Filed 08/02/2006 Page 3 of 3
