Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 1 of 14
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`
`
`Ernest F. Koschineg (Pro Hac Vice)
`Jill H. Fertel (Pro Hac Vice)
`CIPRIANI & WERNER PC
`450 Sentry Parkway - Suite 200
`Blue Bell, PA 19422
`Telephone: (610) 567-0700
`ekoschineg@c-wlaw.com
`jfertel@c-wlaw.com
`
`Michael B. Sachs, Esq., SBN 235048
`CLARK HILL LLP
`505 Montgomery Street, 13th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8530
`Facsimile: (415) 984-8599
`msachs@clarkhill.com
`Attorneys for Defendant,
`Mint Mobile, LLC
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`DANIEL FRASER, an individual;
`Plaintiff,
`
`v.
`MINT MOBILE, LLC, a Delaware
`limited liability company,
`Defendant.
`
`Case No. 3:22-cv-00138
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`DEFENDANT MINT MOBILE, LLC’S
`OPPOSITION TO PLAINTIFF’S
`MOTION FOR LEAVE TO FILE
`FIRST AMENDED COMPLAINT
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`ACTION FILED: JANUARY 11, 2022
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`TRIAL: JUNE 26, 2023
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 2 of 14
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`I.
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`II.
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`A.
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`B.
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`C.
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`III.
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`TABLE OF CONTENTS
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`Introduction …………………………………………………………………….1
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`Legal Analysis…………………………………………………………………..2
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`Legal Standard for Amending a
`Complaint……………………………………………………………...…….2
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`Plaintiff’s Proposed First Amended Complaint Fails to State a Claim for
`Relief under the CFAA
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`1.
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`2.
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`Plaintiff has failed to plead facts supporting conscious and intentional
`conduct
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`Plaintiff has not pleaded “damages” or “loss” as defined by the CFAA
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`Plaintiff’s Proposed First Amended Complaint Fails to State a Claim for
`Punitive Damages in Counts VII, VIII, and IX
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` Conclusion……………………………………………………………………...9
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 3 of 14
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`TABLE OF AUTHORITIES
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`
`Cases
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`Advanced Fluid Systems, Inc. v. Huber, 28 F.Supp.3d 306, 328 (M.D. Pa. June 18,
`2014)……………………………………………………………………………………....5
`Allen v. City of Beverly Hills, 911 F.2d 367(9th Cir. 1990))……………………………...2
`Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149 (9th Cir. 1951)………………….2
`Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995)…………………………………………..2
`Brousseau v. Jarrett, 73 Cal. App. 3d 864 (1977)………………………………………...9
`Buetra & Andrews v. Int’l Bus. Machines Corp., 465 F.Supp.2d 104 (D. D.C. 2006)……4
`COR Securities Holdings Inc. v. Banc of California, 2018 WL 4860032 (C.D. Ca.
`February 12, 2018)………………………………………………………………………...3
`Delacruz v. State Bar of Cal., 2017 WL 7310715 (June 21, 2017)……………………….6
`Ebaugh v. Rabkin, 22 Cal. App. 3d 891 (Ct. App. 1972)…………………………………8
`Facebook, Inc. v. Max Bounty, Inc., 274 F.R.D. 279 (N.D. Ca. March 28, 2011)………..5
`Flayac v. Humrichouse, 855 F.2d 861 (9th Cir. 1988)……………………………………8
`Flynn v. Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor LLP, 2011 WL
`2847712 (D. Nev. July 15, 2011)………………………………………………………….5
`In re Fritz Companies Security Litigation, 282 F.Supp.2d 1105 (N.D. Ca. August 27,
`2013)………………………………………………………………………………………2
`In re 3Com Securities Litigation, 761 F.Supp. 1411 (N.D. Cal. May 7, 1990)…………...5
`Johnson v. Buckley, 356 F.3d 1067 (9th Cir. 2004)……………………………………….2
`Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132 (E.D. Cal. 2010)……………………8
`Lavine v. Jessup, 161 Cal. App. 2d 59 (Ca. 1958)………………………………………...9
`Lee v. Bank of Am., 218 Cal. App. 3d 914, 267 Cal. Rptr. 387 (1990)……………………8
`Nexan Wires S.A. v. Sark-USA, Inc., 319 F.Supp.2d 468 (S.D.N.Y. May 25, 2004)……..7
`Nowak v. Xapo Inc., 2020 WL 6822888 (N.D. Ca. November 20, 2020)………………...7
`Nunes v. Ashcroft, 348 F.3d 815 (9th Cir. 2003)………………………………………….2
`Perez v. Auto Tech. Co., 2014 WL 12588644 (C.D. Ca. July 14, 2014)………………….9
`Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269 (1994)……………………….8
`Torralbo v. Davol, Inc., 2017 WL 5664993 (C.D. Cal. Oct. 19, 2017)…………………...9
`Tyco v. Int’l (US) Inc. v. John Does 1-3, 2003 WL 21638205 (S.D.N.Y. July 11, 2003)...7
`Van Buren v. United States, 141 S. Ct. 1648 (2021)……………………………………...6
`Western Shoshone Nat. Council v. Molini, 951 F.2d 95 (9th Cir. 1991)………………….2
`Statutes
`Cal. Civ. Code §
`3294……………………………………………………………………………………...8,9
`18 U.S.C. § 1030………………………………………………………………………3,5,6
`iii
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 4 of 14
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`Introduction
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`Plaintiff Daniel Fraser (hereinafter referred to as “Plaintiff”) initiated this civil
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`action on January 11, 2022, by filing his original Summons and Complaint. On February
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`18, 2022, Defendant Mint Mobile, LLC (hereinafter referred to as “Mint”) filed a Motion
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`to Dismiss Plaintiff’s Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil
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`Procedure. See Mint’s Motion to Dismiss, (Doc. # 16). After oral arguments on April 14,
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`2022, the Court granted in part Mint’s Motion, dismissing several claims and remedies.
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`See Order re Motion to Dismiss, (Doc. # 37). The Court instructed Plaintiff to seek leave
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`to amend any claim dismissed without prejudice by motion. See Id. On May 13, 2022,
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`Plaintiff filed his Motion for Leave to File a First Amended Complaint. See Pl. Mot. for
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`Leave, (Doc. # 42). Plaintiff’s Motion contains a proposed First Amended Complaint
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`seeking to reinstate each and every claim or demand for relief that was dismissed without
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`prejudice by this Court. See Id. At Ex. A. Mint hereby submits its timely opposition to
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`Plaintiff’s Motion to Amend, specifically as to (1) Count IV of Plaintiff’s proposed First
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`Amended Complaint bringing a revised claim pursuant to the Computer Fraud and Abuse
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`Act (hereinafter “CFAA”) under Count III; and (2) Plaintiff’s proposed Amendments to
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`reinstate a demand for punitive damages under Counts VII, VIII, and IX.
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`II.
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`LEGAL ANALYSIS
`Legal Standard for Amending a Complaint
`A.
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`DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO AMEND THE COMPLAINT
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 5 of 14
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`Rule 15(a) instructs a trial court to “freely give leave [to amend] when justice so
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`requires. Fed. R. Civ. P 15(a)(2). That said, a court may deny leave to amend a complaint
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`upon consideration of five factors: (1) bad faith; (2) undue delay; (3) prejudice to the
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`opposing party; (4) futility of amendment; and (5) whether the plaintiff has previously
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`amended their complaint. See Western Shoshone Nat. Council v. Molini, 951 F.2d 951,
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`204 (9th Cir. 1991) (citing Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160
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`(9th Cir. 1951)). These factors are not accorded equal weight. See Bonin v. Calderon, 59
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`F.3d 815, 845 (9th Cir. 1995). “Futility alone can justify the denial of a motion to
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`amend.” Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (quoting Nunes v.
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`Ashcroft, 348 F.3d 815, 818 (9th Cir. 2003)). The Ninth Circuit has held that “a district
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`court does not abuse its discretion in denying a motion to amend where the movant
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`presents no new facts but only new theories and provides no satisfactory explanation for
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`his failure to fully develop his contentions.” Bonin v. Calderon, 59 F.3d 815, 845 (9th
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`Cir. 1995) (citing Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990)).
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`Moreover, a court may dismiss a proposed amendment as futile if the amended claim
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`would not survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
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`Civil Procedure. See In re Fritz Companies Security Litigation, 282 F.Supp.2d 1105,
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`1111 (N.D. Ca. August 27, 2013).
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`Plaintiff’s Proposed First Amended Complaint Fails to State a Claim
`for Relief under the CFAA
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`B.
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 6 of 14
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`This Court previously dismissed Plaintiff’s claim for relief under the CFAA
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`Similarly, Plaintiff’s proposed First Amended Complaint fails to plead sufficient conduct,
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`damages, and losses to sustain a claim under the CFAA.
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`1.
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`Plaintiff has failed to plead facts supporting conscious and
`intentional conduct
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`Initially, it must be noted that Plaintiff fails to allege Mint engaged in conduct
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`encompassed by the CFAA. In his proposed First Amended Complaint, Plaintiff alleges
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`violations of Sections 1030(a)(2)(C) and 1030(a)(4) of the CFAA. See Proposed First
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`Amended Compl. (Doc. # 42-2), Count III. To sustain such a claim, a plaintiff must plead
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`facts demonstrating that a defendant “intentionally access[ed] a computer without
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`authorization or exceed[ed] authorized access, and thereby obtain[ed]. . . .information
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`from any protected computer” and “knowingly and with intent to defraud, access[ed] a
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`protected computer without authorization, or exceed[ed] authorized access, and by means
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`of such conduct furthers the intended fraud and obtains anything of value. . . .” 18 U.S.C.
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`§§ 1030(a)(2)(C), (a)(4). In applying this statute to civil actions, courts have held that a
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`plaintiff must adduce sufficient facts to show a defendant’s specific intent. As interpreted
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`by the United States District Court for the Central District of California, “[t]o be
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`intentional, one must have engaged in conduct or caused a result. Such conduct or the
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`causing of the result must have been the person’s conscious objective.” COR Securities
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`Holdings Inc. v. Banc of California, 2018 WL 4860032 (C.D. Ca. February 12, 2018)
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 7 of 14
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`(emphasis in original) quoting Buetra & Andrews v. Int’l Bus. Machines Corp., 465
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`F.Supp.2d 104, 110 (D. D.C. 2006) (quoting S. Rep. No. 99-541, at 23(1986), reprinted
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`in 1986 U.S.C.C.A.N. 2555, 2557). A well-pleaded complaint must include facts
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`establishing the defendant’s “‘conscious objective’” to engage in unlawful access of a
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`protected computer.” Id.
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`Plaintiff has not plead any factual allegations establishing that Mint, or any of its
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`officers, directors or agents, had specific intent to participate in the unauthorized porting
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`of his account and theft of his cryptocurrency. See Proposed First Amended Compl. (Doc.
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`# 42-2), Count III. Instead, Plaintiff alleges that Mint “aided and abetted an unauthorized
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`and unknown person by granting to that person, acting knowingly and with intent to
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`defraud Plaintiff, access to a protected computer (i.e., Plaintiff’s cellphone.) Id. at ¶ 152.
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`Plaintiff’s proposed First Amended Complaint does not include any additional factual
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`allegations to support this claim. It merely adds a paragraph espousing legal theory,
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`insisting that “[b]y releasing to the unauthorized person Plaintiff’s personal identifying
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`information and transferr[ing] to that unauthorized person Plaintiff’s cellphone number
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`and the telecommunications services tied thereto through Plaintiff’s cellphone, MINT
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`rendered substantial assistance in the theft of Plaintiff’s assets that would not have taken
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`place in this instance but for MINT’s complicity in the theft.” Id.at ¶ 154.
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`Several courts have previously held that a plaintiff cannot prevail on a CFAA
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`claim under a theory of aiding and abetting liability as a matter of law. The statutory
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 8 of 14
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`language of 18 U.S.C. § 1030 creates a cause of action against one who commits a
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`violation of the statute and “whoever conspires to commit or attempts to commit” a
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`violation of the statute. 18 U.S.C. § 1030(b). Liability lies with one who performs the
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`prohibited act or one who conspires with the actor. See Flynn v. Liner Grode Stein
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`Yankelevitz Sunshine Regenstreif & Taylor LLP, 2011 WL 2847712 (D. Nev. July 15,
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`2011). The statute plainly recognizes inchoate offenses- attempt and conspiracy but does
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`not create a cause of action for a third inchoate offense of complicity. Accordingly, there
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`is no valid cause of action for aiding and abetting a violation of the CFAA. See Advanced
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`Fluid Systems, Inc. v. Huber, 28 F.Supp.3d 306, 328 (M.D. Pa. June 18, 2014).
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`Even if the Court were to accept the contrary position and accept the possibility of
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`Plaintiff’s legal theory, Plaintiff’s amended Count III must fail. In California, to establish
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`a claim of aiding and abetting a tort a plaintiff must show “(1) the existence of an
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`independent primary wrong, (2) actual knowledge by the alleged aider and abettor of the
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`wrong and his or her role in furthering it, and (3) substantial assistance in the wrong.”
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`Facebook, Inc. v. Max Bounty, Inc., 274 F.R.D. 279 (N.D. Ca. March 28, 2011) (quoting
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`In re 3Com Securities Litigation, 761 F.Supp. 1411, 1418 (N.D. Cal. May 7, 1990)).
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`Plaintiff has made no factual allegations to show that Mint had actual knowledge of the
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`unlawful porting of Plaintiff’s number or its potential role in furthering any such act.
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`Plaintiff cannot circumvent the statute’s requirement for conscious, deliberate, and
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`intentional misdeeds simply by invoking an unsubstantiated legal theory.
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 9 of 14
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`2.
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`Plaintiff has not pleaded “damages” or “loss” as defined by the
`CFAA
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`Damages, as defined by the CFAA, are limited to “any impairment to the integrity
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`or availability of data, a program, a system, or information.” Order re Motion to Dismiss,
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`(Doc. # 37) quoting 18 U.S.C. § 1030(e)(8). “Loss” is defined as “any reasonable cost to
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`any victim, including the cost of responding to an offense, conducting a damage
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`assessment, and restoring the data, program, system, or information to its condition prior
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`to the offense, and any revenue lost, cost incurred, or other consequential damages
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`incurred because of interruption of service.” Id. at § 1030(e)(11). In its April 27th Order
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`dismissing Plaintiff’s claim for violation of the CFAA, the Court explicitly held that
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`Plaintiff’s purported damages did not meet either the spirit or intent of the law.
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`Specifically, the Court hearkened to the Supreme Court’s ruling in Van Buren v. United
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`States, holding that “[t]he statutory definitions of ‘damage’ and ‘loss’ thus focus on
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`technological harms – such as the corruption of files – of the type unauthorized users
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`cause to computer systems and data. . . . The term’s definitions are ill fitted, however, to
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`remediating ‘misuse’ of sensitive information. . . .” Id. (quoting Van Buren v. United
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`States, 141 S. Ct. 1648, 1659-60 (2021)) (emphasis added). Moreover, as cited by this
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`Court, “the CFAA creates the right to recover damages and losses related to a computer
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`or system, not damages that flow from the use of unlawfully obtained information.” Id.
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`quoting Delacruz v. State Bar of Cal., 2017 WL 7310715 at * 6 (June 21, 2017) report
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 10 of 14
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`and recommendation adopted, 2017 WL 3129207 (N.D. Cal. July 24, 2017).
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`Plaintiff’s proposed First Amended Complaint does not raise additional allegations
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`of “damages;” rather, Plaintiff raises new factual allegations alleging “loss” in excess of
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`$5,000. The proposed amendment includes allegations of expenditures “to retain the
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`ongoing services of a cryptographic tracing expert to trace blockchain movements of
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`Plaintiff’s stolen assets as a means of identifying where they traveled once they were
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`taken from Plaintiff’s possession and who possesses the stolen assets.” See Proposed First
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`Amended Compl. (Doc. # 42-2) at ¶ 158. Notably, courts of the Northern District have
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`expressed skepticism to designating such expenses as a cognizable “loss” under the
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`CFAA. See Nowak v. Xapo Inc., 2020 WL 6822888 (N.D. Ca. November 20, 2020)
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`(citing Tyco v. Int’l (US) Inc. v. John Does 1-3, 2003 WL 21638205, at &1-2 (S.D.N.Y.
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`July 11, 2003)(finding that costs incurred by hiring an investigative firm to locate and
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`gather information about an unidentified hacker were not cognizable under the CFAA)
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`and Nexan Wires S.A. v. Sark-USA, Inc., 319 F.Supp.2d 468 (S.D.N.Y. May 25, 2004)).
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`As set forth above, Plaintiff’s amended claim under Count III fails to state a
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`cognizable claim under the CFAA. Accordingly, Plaintiff’s proposed amendment should
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`be denied as futile.
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`C.
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`Plaintiff’s Proposed First Amended Complaint Fails to State a Claim
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 11 of 14
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`for Punitive Damages in Counts VII, VIII, and IX
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`Similarly, Plaintiff’s proposed First Amended Complaint fails to state adequate
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`grounds to sustain a demand for punitive damages.
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`Punitive damages are an extraordinary remedy “disfavored by the law.” Kelley v.
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`Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1147 (E.D. Cal. 2010). In recognition thereof,
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`California courts have held that such damages may only be permitted upon clear and
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`convincing evidence of conduct “so vile, baseless, contemptible, miserable, wretched or
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`loathsome that it would be looked down upon and despised by ordinary decent people. . .
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`.” Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269, 1287 (1994). “Negligence,
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`even if gross or reckless, cannot justify punitive damages.” Opinion re Mot. to Dismiss,
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`(Doc. # 37) (quoting Lee v. Bank of Am., 218 Cal. App. 3d 914, 920, 267 Cal. Rptr. 387
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`(1990); see also Flayac v. Humrichouse, 855 F.2d 861 (9th Cir. 1988)(mem.)). With
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`respect to a negligence-based claim, “[t]here must be an intent to vex, annoy or injure.
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`Mere spite or ill will is not sufficient; and mere negligence or gross negligence is not
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`sufficient to justify an award of punitive damages.” Ebaugh v. Rabkin, 22 Cal. App. 3d
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`891, 894 (Ct. App. 1972).
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`A corporate entity cannot be subjected to punitive damages based upon alleged
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`acts of an employee unless the plaintiff establishes that an “officer, director or managing
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`agent” (1) committed, ratified, or authorized fraudulent, malicious, or oppressive conduct
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`themselves; or (2) employed such a person with advance knowledge of their unfitness
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 12 of 14
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`with knowing disregard for the rights of others. See Cal. Civ. Code § 3294(b).
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`A plaintiff’s claim for punitive damages must be supported by adequate factual
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`support. California law recognizes that a “conclusory characterization of defendant’s
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`conduct as intentional, willful and fraudulent is a patently insufficient statement of
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`‘oppression, fraud or malice.’” Brousseau v. Jarrett, 73 Cal. App. 3d 864, 872 (1977)
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`(quoting Cal. Civ. Code § 3294(a)); see also Lavine v. Jessup, 161 Cal. App. 2d 59, 69
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`(Ca. 1958) (“mere use” of terms like fraud “is not enough”; “facts constituting bad faith
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`or fraud must be specifically alleged”); Torralbo v. Davol, Inc., 2017 WL 5664993, at *7
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`(C.D. Cal. Oct. 19, 2017). Moreover, conclusory statements made to support punitive
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`damages “are not entitled to the presumption of truth under Iqbal and Twombly.” Perez v.
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`Auto Tech. Co., 2014 WL 12588644, at *7 (C.D. Ca. July 14, 2014). A plaintiff must
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`plead facts constituting fraud with specificity; it is not sufficient to use legal terms such
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`as “fraud,” “malice,” or “oppression.” See Lavine v. Jessup, 161 Cal. App. 2d 59, 69 (Ca.
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`1958).
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`After careful consideration of Plaintiff’s Complaint, the Court found that Plaintiff
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`failed to allege any “factual allegations that Mint’s conduct went beyond recklessness or
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`otherwise qualifies as conscious disregard of its duty of care toward [Plaintiff.]” Id.
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`Plaintiff’s proposed First Amended Complaint is similarly flawed. While still relying on
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`allegations that this Court has labeled as conclusory, Plaintiff has included little in the
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`way of new factual allegations to support a claim for punitive damages. Plaintiff now
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 13 of 14
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`adds its speculation that “MINT possesses documentation in its corporate records that
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`demonstrate not only the inadequacy of its security systems but also the intentional
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`decisions at MINT to bypass required security and privacy measures that led to the
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`unauthorized release of Plaintiff’s personal information and which precipitated the
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`unauthorized SIM port.” Pl. First Amended Compl., (Doc. # 42-2) at ¶ 68.
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`Plaintiff’s proposed First Amended Complaint lacks any factual support for a claim
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`of punitive damages. Plaintiff has not pleaded any facts that would establish any officer,
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`directoror managing agent engaged in the fraudulent, malicious or oppressive conduct
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`required by law. Plaintiff continues to rely on sweeping, conclusory characterizations of
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`Mint’s conduct cloaked in theory and barren in fact. His proposed First Amended
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`Complaint is bereft of allegations of deliberate malicious conduct by Mint or the requisite
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`state of mind required to justify the extraordinary remedy of punitive damages.
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`Plaintiff’s proposed amended claims for punitive damages for Counts VII, VIII, and IX
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`fail as a matter of law. This Court should therefore deny any such amendment as futile.
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`III. CONCLUSION
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`For the reasons set forth at length above, Defendant Mint Mobile, LLC respectfully
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`requests that this Honorable Court deny Plaintiff’s Motion to Amend his Complaint as to
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`Counts III, VII, VIII, and IX.
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`Respectfully Submitted,
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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`Case 3:22-cv-00138-WHA Document 46 Filed 05/27/22 Page 14 of 14
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`Dated: May 27, 2022
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`By:
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`
`/s/ Jill H. Fertel
`
`Michael B. Sachs
`CLARK HILL LLP
`505 Montgomery St., 13th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8530
`Facsimile: (415) 984-8599
`msachs@ClarkHill.com
`
`Ernest F. Koschineg, III
`(Pro Hac Vice)
`Jessica M. Heinz
`(Pro Hac Vice)
`Jill H.Fertel
`(Pro Hac Vice)
`CIPRIANI & WERNER PC
`450 Sentry Parkway - Suite 200
`Blue Bell, PA 19422
`Telephone: (610) 567-0700
`ekoschineg@c-wlaw.com
`jheinz@c-wlaw.com
`JFertel@c-wlaw.com
`
`Attorneys for Defendant,
`Mint Mobile, LLC
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`DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
`CASE NO. 3:22-cv-00138-WHA
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