Free Motion to Strike - District Court of California - California

Case 3:08-cv-02334-SI

Document 13

Filed 07/16/2008

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1 Robert N. Phillips (SBN 120970) HOWREY LLP 2 525 Market Street, Suite 3600 San Francisco, CA 94105 (415) 848-4900 3 Telephone: Facsimile: (415) 848-4999 4 Email: [email protected] 5 Yuka Sugar (SBN 209997) HOWREY LLP 6 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 (650) 798-3500 7 Telephone: Facsimile: (650) 798 3600 8 Email: [email protected] 9 Attorneys for Plaintiff INTEL CORPORATION 10 11 12 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) Case No. C 08-02334 SI PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE PRO PER RESPONSE TO COMPLAINT FILED BY CORPORATE DEFENDANT AND MEMORANDUM OF POINTS AND AUTHORITIES Date: August 22, 2008 Time; 9:00 a.m. Ctrm: 10 Judge: Honorable Susan Illston

13 INTEL CORPORATION, a Delaware corporation, 14 Plaintiffs, 15 vs. 16 INTELCOM, INC., a Delaware corporation, 17 Defendants. 18 19 20

NOTICE IS HEREBY GIVEN that on August 22, 2008, or as soon thereafter as the matter may

21 be heard in Courtroom 10 of the above-titled Court, located at 450 Golden Gate Avenue, San 22 Francisco, California, plaintiff Intel Corporation ("Intel") will move the Court for an order striking the 23 pro per response to Intel's complaint filed by corporate defendant Intelcom, Inc. ("Intelcom") and 24 requiring Intelcom to appear in this action through a licensed attorney and file a proper response to 25 Intel's complaint. 26 27 28
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No. C 08-02334 SI Plaintiff's Motion to Strike Pro Per Response to Complaint Filed by Corporate Defendant

Case 3:08-cv-02334-SI

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This motion is based on this Notice of Motion and Motion, the following Memorandum of

2 Points and Authorities, the accompanying Declaration of Yuka Sugar and the exhibit thereto, and upon 3 such other matters as may be presented to the court at the time of the hearing on this motion. 4 5 I. 6 MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF FACTS This is a trademark infringement action. On May 6, 2008, Intel filed its Complaint for

7 Damages and Injunctive Relief against defendant Intelcom, Inc., a Delaware corporation. On June 9, 8 2008, the summons and complaint were personally served on Intelcom, Inc.'s agent for service of 9 process. (See Proof of Service on file herein as Docket No. 8.) On Saturday June 28, 2008, the 10 President of Intelcom, Inc., Kassi Tchankpa, served by express mail a response to the complaint titled 11 "Ref: Complaint for Damages and Injunctive Relief." Mr. Tchankpa is not a member of the California 12 Bar, and as far Intel is aware, is not a licensed attorney in any state. (Sugar Decl. ¶¶ 2, 3.) Defendant's 13 response is a legal brief of sorts, with a discussion of the parties' pre-litigation settlement 14 correspondence, and defendant's view of the case. As discussed below, Defendant's corporate status 15 and lack of counsel, as well as its failure to admit or deny each of the allegations in Intel's complaint, 16 requires that the response be stricken. 17 II. 18 DISCUSSION Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, the court "may strike from a

19 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The 20 Court may act on motion made by a party either before responding to the pleading or, if a response is 21 not allowed, within 20 days after being served with the pleading." Intel received express mail delivery 22 of defendant's response on June 30, 2008, the same day it was filed. (See Sugar Decl. ¶ 4 and Docket 23 No. 12 herein.) Therefore, this motion is timely. 24 Pursuant to Civil L.R. 3-9(b), only a licensed practicing attorney admitted to the State Bar of

25 California can properly file an answer on behalf of a corporation. Mr. Tchankpa is not a duly licensed 26 California attorney. 27 28
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No. C 08-02334 SI Plaintiff's Motion to Strike Pro Per Response to Complaint Filed by Corporate Defendant

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Further, under Rule 8(b), (c), and (d) of the Federal Rules of Civil Procedure, a party must, in

2 response to a pleading, state in short and plain terms its defenses to each claim asserted against it, and 3 admit or deny the allegations asserted against it by the Plaintiff. Further, according to Civil Local 4 Rules of the Northern District of California, Rule 3-4, the Defendant's filing must be in proper form. 5 Defendant's response fails to admit or deny the allegations in Intel's complaint, is not properly titled, 6 does not have numbered paragraphs, is not double-spaced, lacks a footer etc., etc. 7 III. 8 CONCLUSION For the above reasons, the Court should strike the Defendant's "Ref: Complaint for Damages

9 and Injunctive Relief" and order that Defendant appear through a licensed California attorney, and 10 must file a proper response to the complaint within twenty (20) days of the date of the Court's Order. 11 Dated: July 16, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted, HOWREY LLP

By: /S/ Robert N. Phillips_________________ Robert N. Phillips Yuka Sugar Attorneys for Plaintiff Intel Corporation

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No. C 08-02334 SI Plaintiff's Motion to Strike Pro Per Response to Complaint Filed by Corporate Defendant

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1 2 3 STATE OF CALIFORNIA 4 COUNTY OF SAN MATEO 5

PROOF OF SERVICE

) ) )

ss.:

I am employed in the County of San Mateo, State of California. I am over the age of 18 and 6 not a party to the within action. My business address is 1950 University Avenue, 4th Floor, East Palo Alto, California 94303. 7 On July 16, 2008, I served on the interested parties in said action the within: 8 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO STRIKE PRO PER RESPONSE TO COMPLAINT FILED BY CORPORATE 9 DEFENDANT AND MEMORANDUM OF POINTS AND AUTHORITIES 10 by placing a true copy thereof in a sealed envelope(s) addressed as stated below and causing such envelope(s) to be deposited in the U.S. Mail at East Palo Alto, California. 11 12 Intelcom, Inc. c/o Kassi E. Tchankpa 13 1335 Dublin Road Suite 210-A 14 Columbis, OH 43215 15 X 16 17 18 I declare under penalty of perjury that I am employed in the office of a member of the bar of 19 this Court at whose direction the service was made and that the foregoing is true and correct. 20 21 22 23 24 25 26 27 28
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(MAIL) I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit.

Executed on July 16, 2008, at East Palo Alto, California. Tammy Miller (Type or print name) /S/ Tammy Miller (Signature)

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No. C 08-02334 SI Plaintiff's Motion to Strike Pro Per Response to Complaint Filed by Corporate Defendant