UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION PRO MARKETING SALES, INC., Plaintiff, v. CYBER SOLUTIONS INTERNATIONAL, LLC, SECTURION SYSTEMS, INC. and RICHARD J. TAKAHASHI, Defendants. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 2:17-CV-00038-RWS REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION OF THE COURT’S DENIAL OF SECTURION SYSTEMS, INC.’S AND RICHARD J. TAKAHASHI’S MOTION TO DISMISS AS MOOT, OR, IN THE ALTERNATIVE, MOTION FOR BRIEF EXTENSION OF TIME TO FILE RENEWED MOTION TO DISMISS AND BRIEF IN SUPPORT Case 2:17-cv-00038-RWS Document 24 Filed 04/24/17 Page 1 of 7 -1- Defendants Secturion Systems, Inc. (“Secturion”) and Richard J. Takahashi (“Takahashi”) have challenged the pleadings of Plaintiff Pro Marketing Sales (“PMS”) against Secturion and Takahashi because with respect to each of them (1) personal jurisdiction is absent; (2) subject matter jurisdiction is absent because PMS lacks standing; and (3) PMS has not sufficiently pleaded any claim for relief. PMS hopes to avoid these defenses altogether, and asks the Court to deny Secturion and Takahashi fair opportunity to present them. PMS’s arguments are misplaced, and the Court should reject them. After the parties completed briefing on these issues, wherein both sides argued each issue as it applies to the Amended Complaint, the Court denied Secturion and Takahashi’s motion to dismiss “as moot in light of the Amended Complaint [Doc. No. 11]” (the “Order”). ECF No. 20. Secturion and Takahashi immediately moved to vacate that Order in part, asking the Court to re-instate their original Motion to Dismiss and consider the completed briefing. ECF No. 21. In the alternative, because a new motion to dismiss and supporting brief would otherwise have been due within hours, that same night, Secturion and Takahashi asked for a short amount of time to prepare papers re-presenting these issues in a renewed motion. Id. PMS now opposes both requests. See Opposition [ECF No. 23]. Its only argument pertinent to the motion to dismiss, however, misportrays the case law. Ample authority demonstrates that under circumstances like this, Secturion and Case 2:17-cv-00038-RWS Document 24 Filed 04/24/17 Page 2 of 7 -2- Takahashi’s original motion should be considered on its merits. Regardless, the timetable establishes that a short extension to file a renewed motion and brief would otherwise be warranted. With regard to re-instating Secturion and Takahashi’s original motion, dozens of federal courts, including in this District, routinely state that an amended complaint does not automatically moot a motion to dismiss directed at an original complaint; rather, courts consider the motion as directed to the amended pleading where issues raised remain uncured. E.g., Chavez v. Credit Nation Auto Sales Inc., 966 F. Supp. 2d 1335, 1345 n.2 (N.D. Ga. 2013) (stating rule and considering issue that remained in amended pleading); N.Y. Life Ins. Co. v. Grant, 57 F. Supp. 3d 1401, 1409 (M.D. Ga. 2014) (same); Moreland v. The Bank of N.Y. Mellon, No. CV 214-112, 2015 U.S. Dist. LEXIS 91423, at *7-8 (S.D. Ga. July 14, 2015) (same); Christian v. City of Greenville, No. 6:16-1757-TMC, 2017 U.S. Dist. LEXIS 10881, at *4 n.1 (D.S.C. Jan. 26, 2017) (same). That is the situation here. As Secturion and Takahashi’s Reply in support of their Motion to Dismiss [ECF No. 17] demonstrates, PMS’s amended pleading did not cure any jurisdictional defects raised by Secturion or Takahashi, or state any claim against them sufficiently, for the same reasons the original Complaint was deficient. In its Opposition to the instant motion, PMS does not identify anything with respect to the issues Secturion or Takahashi raised that the Amended Complaint changed, because it changed nothing. Case 2:17-cv-00038-RWS Document 24 Filed 04/24/17 Page 3 of 7 -3- PMS incorrectly cites Dresdner Bank AG v. M/V Olympia Voyager, 463 F.3d 1210, 1215 (11th Cir. 2006) for the proposition that an amended complaint automatically moots an earlier motion to dismiss. Opposition at 3 (“Plaintiff’s amended complaint moots Secturion and Takahashi’s motion to dismiss,” citing Dresdner Bank). Dresdner Bank, however, does not say that. Dresdner Bank says only that an amended complaint supersedes an original complaint. Id. Mootness was not at issue; the issue was choice of law governing a claim. Id. The proposition is not controversial that amended pleadings supersede earlier pleadings. Chavez, Grant, Moreland, and dozens of other cases acknowledge the superseding effect of an amended pleading, and then say that this does not matter with respect to an original motion to dismiss-such motions may be considered towards the amended pleading regardless of its superseding effect if the same issues remain. In each of those cases, the courts did so. See also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE § 1476 (3d ed. 2010) (explaining superseding effect of amended pleading while also explaining that amended pleading does not require a new motion to dismiss if defects remain). Moreover, PMS cannot credibly argue Secturion and Takahashi’s motion to dismiss was moot when PMS filed a full substantive Opposition thereto, addressing each issue, attaching exhibits, and citing to the Amended Complaint. Case 2:17-cv-00038-RWS Document 24 Filed 04/24/17 Page 4 of 7 -4- In sum, PMS identifies no substantive reason why the Court should not re- instate Secturion and Takahashi’s motion to dismiss and consider the already- completed briefing regarding those issues; and PMS’s procedural argument is demonstrably incorrect. In the alternative, Secturion and Takahashi asked for a brief amount of time-four days-to file a renewed motion to dismiss, given the unique timing circumstances. PMS does not identify any prejudice to PMS that would result from this relief. Instead, it argues that Secturion and Takahashi lack “good cause” for an extension. Secturion and Takahashi already explained, however, why good cause exists. They filed their reply brief in support of their motion to dismiss on the afternoon of April 19. Late in the day on the same day, the Court entered its Order denying their motion to dismiss as moot. PMS did not request that relief; to the contrary, PMS opposed the motion on the merits. The Court’s Order was filed the same day a new motion to dismiss and supporting brief would have been due. Preparing a new supporting brief would take time because while the issues are the same, the Amended Complaint moved PMS’s allegations against Secturion and Takahashi around to make room for the claims PMS added against Cyber Solutions International, LLC as Counts 1 and 2. If the Court declines to re-instate Secturion and Takahashi’s original motion to dismiss or consider the already-completed briefing, allowing Secturion and Takahashi a short time to prepare a new motion to dismiss and supporting brief is thus warranted under the circumstances. Case 2:17-cv-00038-RWS Document 24 Filed 04/24/17 Page 5 of 7 -5- CERTIFICATE OF COMPLIANCE The undersigned hereby certifies pursuant to Local Rule 7.1 that this brief has been prepared in Times New Roman, 14 point font, a font and point selection approved by this court in Local Rule 5.1. /s/ J. David Hopkins Dated: April 24, 2017 Respectfully submitted, /s/ J. David Hopkins (dhopkins@jdhopkinslaw.com) Georgia Bar No. 366505 J. David Hopkins Law LLC 1720 Peachtree Street, N.W., Suite 520 Atlanta, GA 30309 Telephone: (404) 353-5184 ATTORNEYS FOR DEFENDANTS SECTURION SYSTEMS, INC. AND RICHARD J. TAKAHASHI OF COUNSEL: WILSON SONSINI GOODRICH & ROSATI, P.C. Joel C. Boehm (pro hac vice application pending) (jboehm@wsgr.com) 900 S. Capital of Texas Highway Las Cimas IV, 5th Floor Austin, TX 78746 Telephone: (512) 338-5418 Case 2:17-cv-00038-RWS Document 24 Filed 04/24/17 Page 6 of 7 -6- UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION PRO MARKETING SALES, INC., Plaintiff, v. CYBER SOLUTIONS INTERNATIONAL, LLC, SECTURION SYSTEMS, INC. and RICHARD J. TAKAHASHI, Defendants. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 2:17-CV-00038-RWS CERTIFICATE OF SERVICE On April 24, 2017, I electronically submitted the foregoing document with the Clerk of Court for the U.S. District Court, Northern District of Georgia, using the electronic case filing system of the Court. I hereby certify that I have served all counsel and/or pro se parties of record electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2). /s/ J. David Hopkins Case 2:17-cv-00038-RWS Document 24 Filed 04/24/17 Page 7 of 7
