Case3:12-cv SI Document50 Filed07/09/12 Page1 of 6

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1 Case:-cv-0-SI Document0 Filed0/0/ Page of COLT / WALLERSTEIN LLP Doug Colt (Bar No. ) dcolt@coltwallerstein.com Thomas E. Wallerstein (Bar No. ) twallerstein@coltwallerstein.com Nicole M. Norris (Bar No. ) nnorris@coltwallerstein.com Shorebreeze II Shoreline Drive, Suite 0 Redwood Shores, California 0 Telephone: (0) -0 Facsimile: (0) - Attorneys for Skootle Corp. and James Kester UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION TWITTER, INC., a Delaware corporation, Plaintiff, v. SKOOTLE CORP., a Tennessee corporation; JAMES KESTER, an individual; and GARLAND E. HARRIS, an individual, Defendants. SKOOTLE CORP. AND JAMES KESTER S REPLY TO TWITTER, INC. S RESPONSE TO THIS COURT S ORDER Filing Date: April, Trial Date: None Set SKOOTLE CORP. AND JAMES KESTER S REPLY TO TWITTER, INC. S RESPONSE TO THIS COURT S ORDER

2 Case:-cv-0-SI Document0 Filed0/0/ Page of Notwithstanding Twitter s voluntary dismissal of defendants JL Web Solutions and Jayson Yanuaria, Skootle and James Kester (collectively, Skootle ) respectfully request that this Court sever Garland Harris and any other remaining defendant from Skootle. Twitter does not allege, nor can it, that Skootle and Harris are jointly or severally liable for any alleged actions, nor do the allegations against the two of them arise out of the same transaction, occurrence, or series of transactions or occurrences. Accordingly, there is no justification under Federal Rule of Civil Procedure for Skootle and Harris to remain joined. James Kester is the founder and CEO of Skootle Corporation. Skootle sells a product TweetAdder which helps businesses and individuals manage their Twitter accounts more efficiently and effectively. TweetAdder is not spamware. Rather, the product automates certain repetitive tasks Twitter users must undergo to manage their accounts with, and in search of, numerous followers. TweetAdder enables Twitter users with similar interests to follow and interactt with each other while also allowing users to schedule Tweets to be posted throughout the day, but only to users who have chosen to follow them. Twitter does not allegee that any of the purported acts lending to breach of the Twitter Terms of Service (the TOS ), or any of the other causes of action in its complaint, arise out of the same transaction, occurrence, or series of transactions or occurrences. Rather, Twitter contends that Skootle violated the TOS, among other things, by enable[ing] users to automate the process of creating accounts and broadcasting spam Tweets to an enormous number of users. (Complaint.) Conversely, Twitter alleges that Harris operates, uses controls, and/or authorizes the operation, use and/or control of massive number of automated spam Twitter accounts (over,000 as of the filing of this Complaint) which send spam Tweets linking to websites promoted by Harris. (Id..) INTRODUCTION STATEMENT OF FACTS Skootle and Mr. Kester do not contest that joinder of the claims against the two of them is appropriate. - -

3 Case:-cv-0-SI Document0 Filed0/0/ Page of Thus, Twitter claims that Harris, and users of TweetAdder, separately breached the TOS by performing separate acts. Indeed, Twitter even identifies Skootle and Harris differently, as Spamware and Spammer defendants, respectively. (Id..) Twitter makes no attempt to show any relationship between Skootle and Harris. Twitter does not allege that Skootle and Harris acted jointly or in concert. Nor can it. The claims against Skootle and Harris involve very different alleged behavior and different software products. DISCUSSION I. SKOOTLE AND HARRIS ARE MISJOINED UNDER FEDERAL RULE OF CIVIL PROCEDURE (a)() Federal Rule of Civil Procedure (a)() provides that separate defendants may be joined in the same complaint only when the right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences and any question of law or fact common to defendants willl arise in the action. Fed. R. Civ. Proc. (a)()(a) )-(B). Twitter s Response attempts to sidestep (a)()(a) and focuses only on (a)()(b) by claiming that because there is a shared fact background, as well as the common legal issues in play, joinder is appropriate. Twitter is wrong. The Northern District of California has consistently held that regardless of whether plaintiff asserts logical groupings or similar claims as to separate defendants, absent joint and several liability, or claims arising out of the same transaction or occurrence, the similarities Twitter now relies on do not meet the requirements of Federal Rule (a)(). See WiAV Networks, LLC v. Com Corp., U.S. Dist. LEXIS, at * (N.D. Cal. Oct., ); Innovus Prime, LLC v. LG Elecs., Inc. U.S. Dist. LEXIS 0 (N.D. Cal. Jan, ); EIT Holdings LLP v. Yelp!, Inc., U.S. Dist. LEXIS 0 (N.D. Cal. May, ); Optimum Power Solutions, LLC v. Apple et al. U.S. Dist LEXIS (N.D. Cal. Sept., ). The court in WiAV Networks considered this issue thoroughly. WiAV alleged infringement of two patents against a number of separate defendants. U.S. Dist. LEXIS, at *. WiAV did not allege that any of the defendants acted in concert to infringe the asserted patents. Id. The - -

4 Case:-cv-0-SI Document0 Filed0/0/ Page of crux of WiAV s argument in support of a single action, like Twitter s, was that the claims against certain defendants, which it referred to as the Laptop Defendants had a logical connection. Id. The court held that a logical connection was insufficient to meet the requirements of the Federal Rules because proving liability would necessarily require proof of facts specific to each individual defendant and to each accused product. The mere fact that twelve defendants all manufacture, sell, or distribute their own laptop computers does nothing to obviate the bone-crushing burden of individualized methods of proof unique to each product. Id. at *. Recently, the EIT and Optimum courts, supra, also held that joinder of different defendants making separate products was inappropriate even thoughh they were accused of infringing the same patents. While Twitter relies on OpenMind Solutions, Inc. v. Does -, U.S. Dist. LEXIS (N.D. Cal. Oct., ) and Call of the Wild Movie, LLC v. Does -,0, 0 F. Supp. d (D.D.C Mar., ) to support its contention that courts must be flexible when considering whether claims against defendants are logically related, these cases are inapposite. First, as discussed above, whether Twitter s claims against Skootle and Harris are logically related is not the test for appropriate joinder. Second, neither OpenMind nor Call of the Wild is an appropriate comparison to this matter. The plaintiffs in both OpenMind and Call of the Wild asserted copyright infringement against numerous defendants for those defendants alleged use of the same BitTorrent file-sharing protocol to illegally download and copy plaintiff s respective copyrights. See OpenMind, U.S. Dist. LEXIS, *-; Call of the Wild, 0 S. Supp. d at. In those cases the plaintiffs alleged that the defendants were part of the same swarm that downloaded and provided to others the same copyrighted file. Id. (both). A swarm of users of BitTorrent refers to different users who access and share small pieces of the same originating file, collectively working together to effectuate the infringement. OpenMind, U.S. Dist. LEXIS, *-, n.. Because the plaintiffs alleged the defendants were in the same swarm, working in tangent to access and copy the same copyrighted file, the courts found that the plaintiffs causess of action against all defendants arose out of the same transaction, occurrence, or series of transactions or occurrences. Id. (both). Those facts make OpenMind and Call of the Wild inapposite here. - -

5 Case:-cv-0-SI Document0 Filed0/0/ Page of II. SKOOTLE WILL BE PREJUDICED IF TRIED ALONGSIDE AN ALLEGED SPAMMER Despite Twitter s moniker, TweetAdder is not spamware. Instead, it provides businesses and individuals, including, for example, Presidential campaigns, news networks, bloggers and celebrities, with a streamlined way to manage their Twitter accounts and send automated news and updates to other Twitter userss who already elected to follow their tweets. If Twitter is permitted to simultaneously try its case against both Skootle and alleged spammer defendants such as Harris, then Skootle will be prejudiced by being wrongly associated with completely dissimilar spamming activities. Skootle is entitled to present its own defense and be assessed based on its own conduct alone. That right would be lost if it is thrown into a mass pit with others to suit plaintiff s convenience. WiAV, U.S. Dist. LEXIS *; see also Colt Defense LLC v. Heckler & Koch Defense, Inc. 0 U.S. Dist. LEXIS 0 (E.D. Va. Oct., 0) (court severed cases where there was a risk of jury confusion over the evidence when multiple claims were asserted against different defendants in the same case). Twitter s disparaging references to spam, and its attempted inclusion of both spamware and the spammer defendants in a case against Skootle, are both intended to, and likely to, incite bad will against the entire group of defendants, thereby prejudicing Skootle and its legitimate business product. Twitter hopes to capitalize on the misleading characterization and improper grouping of defendants with very differing conduct and potential culpability. Skootle is entitled to have Twitter s allegations against it stand or fall on their own without confusing and prejudicial reference to other irrelevant spammer defendants. III. TWITTER S OPPOSITION, NOT THIS COURT S ORDER, IS MOOT Twitter argues that this Court s Order to Show Cause is moot becausee Twitter dismissed without prejudice one defendant simultaneously with filing its response, and because it may later dismiss another defendant if settlement terms are reached. Twitter has it backwards. Twitter s voluntary dismissal of certain defendants does not render moot this Court s Order to Show Cause. Rather, Twitter s opposition is moot because if the remaining defendants are to be dismissed, then there is no bona fide reason for Twitter to oppose severance. - -

6 Case:-cv-0-SI Document0 Filed0/0/ Page of This Court should order the remaining defendants to be severed from one another. If Twitter later dismisses Harris or chooses not to prosecute that lawsuit, then that is Twitter s prerogative. But this Court should not decline to order severance of improperly joined defendants based on the mere possibility that one of those defendants will be later dismissed. CONCLUSION Federal Rule (a) requires both a question of law or fact common to all defendants and the same transaction, occurrence, or series of transactions or occurrences. Fed. R. Civ. Proc. (a)(). There is no claim of the same transaction, occurrence, or series of transactions or occurrences within the meaning of Federal Rule (a)() and these actions should be severed. Date: July, Respectfully submitted, COLT / WALLERSTEIN LLP By: Doug Colt Thomas E. Wallerstein Nicole M. Norris Attorneys for Skootle Corp. and James Kester - -