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`Case 4:16-cv-01730-YGR Document 145 Filed 01/25/19 Page 1 of 4
`
`(SBN 230038)
`(SBN 255820)
`
`Christopher D. Banys
`Jennifer L. Gilbert
`BANYS, P.C.
`1030 Duane Avenue
`Santa Clara, CA 95054
`Tel: (650) 308-8505
`Fax: (650) 353-2202
`cdb@banyspc.com
`jlg@banyspc.com
`
`
`Bradley W. Caldwell (pro hac vice)
`bcaldwell@caldwellcc.com
`Jason D. Cassady (pro hac vice)
`jcassady@caldwellcc.com
`John Austin Curry (pro hac vice)
`acurry@caldwellcc.com
`Warren J. McCarty, III (pro hac vice)
`wmccarty@caldwellcc.com
`CALDWELL CASSADY & CURRY
`2101 Cedar Springs Rd., Suite 1000
`Dallas, TX 75201
`Telephone: (214) 888-4848
`Facsimile: (214) 888-4849
`
`Attorneys for Plaintiff,
`Windy City Innovations, LLC
`
`
`WINDY CITY INNOVATIONS, LLC,
`
`
`Plaintiff,
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`Case No. 4:16-cv-01730-YGR
`
`PLAINTIFF WINDY CITY INNOVATIONS,
`LLC’S WRITTEN STATEMENT
`EXPLAINING FAILURE TO COMPLY
`WITH THE COURT’S STANDING ORDER
`PURSUANT TO ORDER AT DKT. 143
`
`Date: January 25, 2019
`Time: 2:01 p.m.
`Ctrm: Courtroom 1, Fourth Floor
`
`The Honorable Yvonne Gonzalez Rogers
`
`
`v.
`
`FACEBOOK, INC.,
`
`
`
`
`Defendant.
`
`
`
`
`
`Plaintiff Windy City Innovations, LLC (“Windy City”), by and through its counsel
`Warren McCarty, respectfully submits this written statement in response to the Court’s January
`23, 2019 Order to Show Cause (Dkt. 143).
`Windy City and its counsel Mr. McCarty sincerely apologize for failing to recognize and
`appreciate the Court’s distinction between letter and brief formatting and represent this will not
`happen again. Windy City and its counsel place the utmost importance on careful compliance
`with Local and Federal Rules, as well as with this Court’s standing orders. In preparing its
`response, Windy City’s counsel studied the Court’s Standing Order in Civil Cases with every
`intention of complying with the requirements therein. Nonetheless, Windy City mistakenly
`
`PLAINTIFF’S WRITTEN STATEMENT
`PURSUANT TO ORDER AT DKT. 143
`
`1.
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` 4:16-CV-01730-YGR
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`Case 4:16-cv-01730-YGR Document 145 Filed 01/25/19 Page 2 of 4
`
`understood that formatting its response using a case-caption style document similar to
`Facebook’s initial letter complied with the Court’s rules. This mistake was entirely ours,
`inadvertent, and not for the purpose of circumventing the Court’s Standing Order.
`Throughout this litigation, counsel for Windy City have worked diligently to comply with
`the local rules and the Court’s standing orders for all filings, and they in no way intended to
`circumvent the Court’s orders in filing its Response (Dkt. 141). Immediately after this action was
`transferred into this Court in 2016, counsel for Windy City collected and reviewed all applicable
`standing orders and local rules, as well as the District’s Guidelines for Professional Conduct.
`
`Moreover, during the first Case Management Conference held in this Court on July 25, 2016,
`Windy City’s counsel Messrs. Brad Caldwell and Warren McCarty observed the Court stressing
`to counsel in an unrelated case the importance of carefully following Your Honor’s standing
`orders. Since that time, Windy City has routinely consulted the applicable standing orders in this
`Court to ensure compliance therewith, tracked updates to the Court’s orders, and cited to the
`Court’s orders in its pleadings where applicable.
`On Tuesday January 15, 2019, Facebook filed a letter requesting a pre-filing conference
`for its Motion for Summary Judgment (Dkt. 140). Immediately after receiving this letter, counsel
`for Windy City, including Mr. McCarty, repeatedly reviewed the portion Your Honor’s Standing
`Order to ascertain the appropriate manner for responding to Facebook’s letter:
`Within three (3) business days after receipt of the letter, any adversary
`wishing to oppose the motion must file a written response addressing the
`
`substance of the moving party’s letter, with a copy to Chambers and the
`moving party. This response shall also be limited to three single-spaced
`pages, including any attached exhibits or supporting papers.
`
`Mr. McCarty, as well as other attorneys and staff at Caldwell Cassady & Curry, worked
`diligently in the ensuing days to draft a response to Facebook’s letter that conformed to the
`Court’s Standing Order requirements above. The response was drafted with formatting that
`mirrored the formatting used by Facebook, under the mistaken assumption that this complied
`with the Court’s Standing Order for a response. Windy City made certain to file its response
`within three business days after receipt of Facebook’s letter and limit the argument to three
`single-spaced pages. Further, given that Facebook requested a pre-filing hearing to occur on
`
`PLAINTIFF’S WRITTEN STATEMENT
`PURSUANT TO ORDER AT DKT. 143
`
`2.
`
` 4:16-CV-01730-YGR
`
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`Case 4:16-cv-01730-YGR Document 145 Filed 01/25/19 Page 3 of 4
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`Friday January 25, 2019, Windy City arranged for staff at Caldwell Cassady & Curry to prepare
`and FedEx copies to the Court over the weekend so they would neither be delayed nor lost
`through failed delivery attempts on the Dr. Martin Luther King, Jr. holiday.
`In drafting Windy City’s response, Mr. McCarty and others at Caldwell Cassady & Curry
`paid careful attention to Your Honor’s requirement that the response address the substance of the
`moving party’s letter. Facebook’s letter requested summary judgment on six different grounds.
`Windy City worked diligently to provide the Court with a response directly and substantively
`addressing each of these six grounds—including citation to authorities where necessary to
`
`respond to Facebook’s authorities, explanation of evidence undermining Facebook’s six grounds,
`and citation to Your Honor’s Standing Order to address whether Facebook should even be
`allowed to file its proposed motion. To assist the Court, Windy City included headings in its
`response that mirrored the order of issues presented in Facebook’s letter.
`In retrospect, Windy City should have formatted its filing using letterhead instead of
`using a case-caption as a cover page. Windy City in no way intended to circumvent the Court’s
`Standing Order, including the requirement that its response be limited to three single-spaced
`pages. Windy City and its counsel sincerely apologize to the Court and its staff for failing to
`meet the Court’s expectations, and for falling short in its efforts to comply with the Court’s
`Standing Order. After reviewing this submission and conducting the show cause hearing, if the
`Court feels that action needs to be taken, Windy City respectfully asks that, instead of
`
`sanctioning counsel, the Court strike its submission at Dkt. 141 and direct Windy City to file a
`reformatted response.
`Windy City has paid, and continues to pay particular attention to the Court’s orders. Any
`failure to comply with the Court’s Standing Order in this instance was entirely inadvertent and
`not intended as a way to skirt the Court’s rules regarding pre-filing summary judgment
`conferences. Windy City’s counsel take very seriously their duties and responsibilities as officers
`of the Court, and likewise endeavor to avoid burdening the Court with unnecessary disputes.
`A declaration of Mr. McCarty further detailing Windy City and its counsel’s efforts to
`comply with the Court’s Standing Order is attached hereto as Exhibit 1.
`
`PLAINTIFF’S WRITTEN STATEMENT
`PURSUANT TO ORDER AT DKT. 143
`
`3.
`
` 4:16-CV-01730-YGR
`
`
`
`
`

`

`Case 4:16-cv-01730-YGR Document 145 Filed 01/25/19 Page 4 of 4
`
`Dated: January 25, 2019
`
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`Respectfully submitted,
`
`
`/s/ Warren J. McCarty, III
`
`Warren J. McCarty, III (pro hac vice)
`
`Bradley W. Caldwell (pro hac vice)
`bcaldwell@caldwellcc.com
`Jason D. Cassady (pro hac vice)
`jcassady@caldwellcc.com
`John Austin Curry (pro hac vice)
`acurry@caldwellcc.com
`Warren J. McCarty, III (pro hac vice)
`wmccarty@caldwellcc.com
`CALDWELL CASSADY & CURRY
`2101 Cedar Springs Rd., Suite 1000
`Dallas, TX 75201
`Telephone: (214) 888-4848
`Facsimile: (214) 888-4849
`
`(SBN 230038)
`(SBN 255820)
`
`BANYS, P.C.
`Christopher D. Banys
`Jennifer L. Gilbert
`BANYS, P.C.
`1030 Duane Avenue
`Santa Clara, CA 95054
`Tel: (650) 308-8505
`Fax: (650) 353-2202
`cdb@banyspc.com
`jlg@banyspc.com
`
`Attorneys for Plaintiff,
`Windy City Innovations, LLC
`
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`PLAINTIFF’S WRITTEN STATEMENT
`PURSUANT TO ORDER AT DKT. 143
`
`4.
`
` 4:16-CV-01730-YGR
`
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