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Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 1 of 10
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`Mark L. Javitch (CA SBN 323729)
`JAVITCH LAW OFFICE
`3 East 3rd Ave. Ste. 200
`San Mateo, CA 94401
`Telephone: (650) 781-8000
`Facsimile: (650) 648-0705
`mark@javitchlawoffice.com
`Attorney for Plaintiffs
`and all those similarly situated
`
`[Additional Counsel on Signature Page]
`
`MOBILE EMERGENCY HOUSING CORP.,
`TRACK RAT ENTERPRISES, INC. d/b/a
`PERFORMANCE AUTOMOTIVE & TIRE
`CENTER, and DAVID JUSTIN LYNCH,
`individually, and on behalf of all others similarly
`situated,
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
` Case No.: 5:20-cv-09157-SVK
`
`NOTICE OF MOTION AND MOTION FOR
`LEAVE TO FILE FOURTH AMENDED
`COMPLAINT
`
`Hearing: September 27, 2022
`Time: 10:00 a.m.
`
`Plaintiffs,
`
`v.
`HP, INC. d/b/a HP COMPUTING AND
`PRINTING INC., a Delaware Corporation,
`Defendant.
`
`
`
`
`
`
`NOTICE OF MOTION AND MOTION FOR LEAVE
`TO FILE FOURTH AMENDED COMPLAINT
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 2 of 10
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`PLAINTIFFS HEREBY PROVIDE NOTICE that on September 27, 2022, in Courtroom 6, on
`the 4th Floor of the United States District Court for the Northern District of California, San Jose
`Division, located at 280 South 1st Street, San Jose, California 95113, or if the Court prefers, via Remote
`Videoconference, at 10:00 a.m., or as soon thereafter as the matter may be heard, Plaintiffs MOBILE
`EMERGENCY HOUSING CORP., TRACK RAT ENTERPRISES, INC. d/b/a PERFORMANCE
`AUTOMOTIVE & TIRE CENTER, and DAVID JUSTIN LYNCH (together, “Plaintiffs”) will and
`hereby do move the Court for leave to file Plaintiffs’ [Proposed] Fourth Amended Complaint (“4AC”)
`a copy and redline version of which are concurrently filed with this Notice of Motion and Motion as
`Exhibit “A” and “B” to the Declaration of Mark L. Javitch, ¶¶ 6-7 (“Javitch Decl.”).
`The relief sought by Plaintiffs is to file the 4AC to add claims of an additional plaintiff and
`proposed class representative Paige Vollmer, and to amend the proposed class definitions in light of
`Ms. Vollmer’s involvement in the case.
`The Motion for Leave to Amend will be based on this Notice of Motion and Motion, the
`Memorandum of Points and Authorities in support, the proposed 4AC, the Javitch Declaration, and at
`the Court’s discretion, oral argument.
`
`Date: August 22, 2022
`
`By:
`
`/s/ Mark L. Javitch
`Mark L. Javitch
`
`One of the Attorneys for Plaintiffs
`And those similarly situated
`
`
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`TO FILE FOURTH AMENDED COMPLAINT
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 3 of 10
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`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`I.
`
`INTRODUCTION
`
`Even after this lawsuit was filed, HP refuses to stop its unlawful practices of purposefully
`
`disabling its own customers’ printers using firmware “updates” that are actually malicious
`
`transmissions of code designed to block HP’s competitors’ supply cartridges. Plaintiffs continue to
`
`receive reports from users who fall victim to HP’s practices. HP has sought to limit this lawsuit to
`
`LaserJet printers using toner cartridges, but HP’s practices have a far greater impact, extending to InkJet
`
`printers with ink cartridges. Proposed plaintiff Paige Vollmer (“Vollmer”)––who owns an InkJet printer
`
`that recently lost functionality with third party ink cartridges after a firmware update––seeks to assert
`
`claims in this lawsuit against HP for injuries virtually identical to those incurred by the other Plaintiffs
`
`and proposed Class members. Volmer’s experiences show that HP’s disabling transmissions affect
`
`LaserJet and InkJet printers alike.
`
`Pursuant to Federal Rule of Civil Procedure 15(a) and Civil L.R. 7-2, Plaintiffs, by and through
`
`their undersigned counsel, hereby respectfully move the Court for leave to file a Fourth Amended
`
`Complaint (“4AC”) to plead facts relating to Defendant’s virtually identical violations of law arising
`
`out of malicious firmware transmissions sent to Vollmer and other InkJet owners subsequent to the
`
`filing of the Third Amended Complaint. Counsel have met and conferred via telephone and have
`
`expressed opposing positions, necessitating this motion. See Declaration of Mark L. Javitch (“Javitch
`
`Decl.”) ¶¶ 8–9.
`
`Leave to amend should be granted because the amendment serves the interests of justice and no
`
`prejudice will arise from its filing at this early stage of the case. Pursuant to L.R. 10-1, the clean version
`
`of the proposed 4AC is attached as Exhibit A to the Javitch Declaration, and a redline version showing
`
`the proposed changes from Plaintiffs’ April 8, 2021 Third Amended Complaint (Dkt. 42) is attached
`
`as Exhibit B to the Javitch Declaration.
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 4 of 10
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`II.
`
`FACTS & PROCEDURAL HISTORY
`
`On December 17, 2020, Plaintiffs Mobile Emergency Housing Corp. and Track Rat Enterprises
`
`filed a Complaint alleging violations of the Computer Fraud and Abuse Act (“CFAA”) codified at 18
`
`U.S.C. § 1030, et seq., the California Comprehensive Computer Data Access and Fraud Act
`
`(“CDAFA”) codified at Cal. Penal Code § 502(c), Trespass to Chattels, and the fraudulent, unfair, and
`
`unlawful prongs of Bus. and Prof. Code § 17200. (Dkt. 1, Complaint). On March 2, 2021, Plaintiffs
`
`filed their First Amended Complaint, adding Plaintiff David Justin Lynch and claims for injunctive
`
`relief under the California Consumer Legal Remedies Act (“CLRA”). (Dkt. 30). On March 19, 2021,
`
`Plaintiffs filed their Second Amended Complaint to add a claim for damages under the CLRA. (Dkt.
`
`39).
`
`On April 8, 2021, Plaintiffs filed their Third Amended Complaint to allege that the Italian
`
`Competition Authority fined HP 10 million Euros for failing to sufficiently inform consumers that it
`
`was collecting data on whether its printers used HP or third party cartridges for the purpose of disabling
`
`and excluding support coverage to customers using competitors’ cartridges. Dkt. 42, ¶¶ 72-73. The
`
`Third Amended Complaint also added additional theories under Section 1030(a)(2)(C) of the CFAA
`
`for Defendant accessing a protected computer without authorization and obtaining information, and
`
`Sections 502(c)(2), (c)(3), and (c)(7) of the CDAFA for knowingly accessing these printers and data,
`
`using computer services belonging to others, all without permission. (Dkt. 42).
`
`On May 24, 2021, HP filed its motion to dismiss and/or strike Plaintiffs’ Third Amended
`
`Complaint. (Dkt. 44). On October 15, 2021, the Court issued an Order granting in part and denying in
`
`part HP’s motion. (Dkt. 52). The Court dismissed Plaintiffs’ claims for relief under 18 U.S.C. §
`
`1030(a)(2)(C), Cal. Penal Code § 502(c)(7), and Trespass to Chattels, but denied HP’s motion as to all
`
`of Plaintiffs’ remaining claims under 18 U.S.C. § 1030(a)(5)(A), Cal. Penal Code § 502(c)(1)-(5), False
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 5 of 10
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`Advertising Law, Cal. Bus. & Prof. Code § 17500, the fraudulent, unfair, and unlawful prongs of Bus.
`
`and Prof. Code § 17200, and Cal. Civ. Code § 1770(a)(15) of the CLRA. Id.
`
`Since the commencement of this lawsuit, and even after HP’s motion to dismiss was largely
`
`denied, HP has shown no signs that it will cease its unlawful practices that are the subject of this lawsuit.
`
`HP continues to flagrantly send transmissions to its customers’ printers that disable third party cartridges
`
`under the guise of firmware “updates.”
`
`The new allegations in the proffered 4AC relating to proposed Plaintiff Vollmer are as follows.
`
`Vollmer purchased an HP OfficeJet Pro 8025e Wireless Color All-in-One Inkjet Printer for
`
`approximately $225.00. 4AC, ¶ 70. Vollmer was satisfied using InkJet cartridges manufactured by HP’s
`
`competitor, Janmore, which she purchased on Amazon. Id. ¶¶ 71–72. In or around June 2022, Vollmer’s
`
`printer received a malicious transmission, rendering her printer incompatible with her Janmore
`
`cartridges. Id. ¶¶ 74-75. HP did not advise Vollmer of the transmission. Id. ¶ 75. Vollmer discovered
`
`the effects of the malware transmission when she attempted to print a document and an error message
`
`said: “The indicated cartridges have been blocked by the printer firmware because they contain a non-
`
`HP chip.” Id. After HP’s transmission, Vollmer’s printer was disabled. Id. ¶ 79. Although Vollmer
`
`wanted to continue printing with Janmore cartridges, after her printer became disabled, she was forced
`
`to give up on her HP printer and purchase another printer altogether. Id. ¶ 80.
`
`On July 29, 2022, Plaintiffs proffered to Defendants the 4AC, pleading the damage incurred by
`
`Volmer. (4AC ¶¶ 70–80.) On August 5, 2022, counsel for HP emailed that HP would not stipulate to the
`
`filing of the 4AC. See Javitch Decl., ¶ 8. HP argues that Plaintiffs have had enough time to amend, the
`
`product that Vollmer brings was not at issue, and that there is a separate case pending relating to InkJet
`
`printers. On August 12, 2022, counsel held a telephonic meet and confer, but could not reach a
`
`resolution, thereby necessitating this motion. Id. ¶ 9.
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 6 of 10
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`III. LEGAL STANDARD
`
`Under Rule 15(a)(2), a party may amend its pleadings with leave of the court. See Fed. R. Civ.
`
`P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. In this Circuit, this policy
`
`is applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th
`
`Cir. 2003) (internal citation omitted). The nonmovant bears the burden of demonstrating why leave to
`
`amend should not be granted. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). The
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`Supreme Court has outlined five factors to consider in deciding whether leave to amend is warranted:
`
`(1) bad faith, (2) undue delay, (3) repeated amendments, (4) undue prejudice, and (5) futility of the
`
`proposed amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962); Johnson v. Buckley, 356 F.3d
`
`1067, 1077 (9th Cir. 2004). “Absent prejudice, or a strong showing of any of the remaining [] factors,
`
`there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Eminence, 316 F.3d
`
`at 1052.
`
`IV.
`
`LEGAL ARGUMENT
`
`While Plaintiffs’ case against HP for surreptitiously disabling consumers’ third-party cartridges
`
`was pending, Plaintiffs received additional reports of the exact same alleged conduct at issue in the case
`
`impacting InkJet printers. Vollmer, for instance, was printing on her HP InkJet printer using her
`
`functional third-party ink cartridges, but they were disabled after HP’s malicious transmission of
`
`firmware. Vollmer’s experiences are virtually identical to those alleged by the current Plaintiffs.
`
`To bring HP’s latest conduct to the Court’s attention and include claims relating to Defendant’s
`
`InkJet printers, Plaintiffs seek leave to amend. Amendments to the pleadings should be liberally granted
`
`so that cases are decided “on the merits, rather than on pleadings or technicalities.” Lopez v. Smith, 203
`
`F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). Plaintiffs’ Motion should
`
`be granted because: (A) the amendment would not be futile; (B) the amendment has not been unduly
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 7 of 10
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`delayed; (C) the amendment will not unfairly prejudice Defendant; and (D) the amendment is not
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`brought for an improper purpose. See Foman, 371 U.S. at 182.
`
`A.
`
`The Proposed Amendment Is Not Futile
`
`“A motion for leave to amend may be denied if it appears to be futile or legally insufficient.
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`However, a proposed amendment is futile only if no set of facts can be proved under the amendment to
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`the pleadings that would constitute a valid and sufficient claim[.]” Miller v. Rykoff-Sexton, Inc., 845
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`F.2d 209, 214 (9th Cir. 1988) (citations omitted). Further, even if Defendant were to argue the legal
`
`insufficiency of Plaintiffs’ proposed amendment (which it has not), “[t]he merits or facts of a
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`controversy are not properly decided in a motion for leave to amend and should instead be attacked by
`
`a motion to dismiss for failure to state a claim or for summary judgment.” Allen v. Bayshore Mall, 2013
`
`U.S. Dist. LEXIS 172890, 2013 WL 6441504, at *5 (N.D. Cal. Dec. 9, 2013) Thus, “denial [of a motion
`
`for leave to amend] on this ground is rare and courts generally defer consideration of challenges to the
`
`merits of a proposed amended pleading until after leave to amend is granted and the amended pleading
`
`is filed.” dpiX LLC v. Yieldboost Tech, Inc., 2015 U.S. Dist. LEXIS 117267, 2015 WL 5158534, at *3
`
`(N.D. Cal. Sept. 2, 2015).
`
`Plaintiffs’ 4AC is not futile. The 4AC contains the same allegations that were pled in the Third
`
`Amended Complaint, only with the addition of the virtually identical allegations against HP concerning
`
`its violations of the same laws against Vollmer as relating to Defendant’s InkJet printers. See Exhibits
`
`“A” and “B,” attached to Javitch Decl., ¶¶ 6–7. In its decision on HP’s motion to dismiss, the Court
`
`declined to dismiss the majority of Plaintiffs’ claims in the Third Amended Complaint. Considering that
`
`Vollmer’s fact pattern is nearly identical to the other Plaintiffs, there is little reason to believe that
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`Vollmer’s claims would be futile.
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`Finally, because Plaintiffs have not previously sought leave of Court to amend their complaint,
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`this factor also weighs in his favor. See Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002)
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 8 of 10
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`(courts have broader discretion in denying motions for leave to amend after leave to amend has already
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`been granted). Defendant stipulated to the prior amendments.
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`B.
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`Plaintiffs Have Not Unduly Delayed
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`In determining whether amendment would result in prejudice, courts consider the timeliness of
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`the amendment and whether it would delay litigation. See Poling v. Morgan, 829 F.2d 882, 886-87 (9th
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`Cir. 1987). “[D]elay alone no matter how lengthy is an insufficient ground for denial of leave to amend.”
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`United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981).
`
` Plaintiffs have not unduly delayed in filing their Motion. This case is in a relatively early stage.
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`HP refuses to cease its complained-of conduct, so the facts of the case are still unfolding and damages
`
`continue to mount. Plaintiffs have conducted some discovery, but Defendant’s production has been
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`limited and remains ongoing. The parties are currently meeting and conferring on the possibility of
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`further production prior to the need for Court intervention. No depositions have been taken. There is no
`
`evidence of undue delay. Therefore, this factor favors Plaintiffs. See Owens v. Kaiser Foundation Health
`
`Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (finding appellants suffered no prejudice when appellee
`
`amended its answer because there was no delay in proceedings or required additional discovery).
`
`C.
`
`Defendant Will Not Be Unduly Prejudiced
`
`Prejudice is the factor that carries the most weight in the Court’s analysis. Eminence Capital,
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`316 F.3d at 1052. In general, “[t]he party opposing amendment bears the burden of showing prejudice.”
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`DCD Programs, 833 F.2d at 187. In order to do this, Defendant “must show that [it was] unfairly
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`disadvantaged or deprived of the opportunity to present facts or evidence which [it] would have offered
`
`had the amendments been timely.”
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`Defendant has not been deprived of any such opportunity. As stated above, this case is in a
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`relatively early stage. Defendant has yet to significantly respond to Plaintiffs’ discovery requests, and
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`depositions have not yet been scheduled. An important goal of this litigation is to stop HP’s unlawful
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`Case 5:20-cv-09157-SVK Document 72 Filed 08/22/22 Page 9 of 10
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`activity, yet Plaintiffs and the proposed Class members have continued to suffer from HP’s continuing
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`unlawful conduct. See DCD Programs, 833 F.2d at 187–88 (“Given that this case is still at the discovery
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`stage with no trial date pending, nor has a pretrial conference been scheduled, there is no evidence that
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`[defendant] would be prejudiced by the timing of the proposed amendment.”)
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`Prejudice typically arises where the opposing party is surprised with new allegations which
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`require additional discovery or will otherwise delay resolution of the case. See, e.g., Acri v. Int'l Ass'n
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`of Machinists & Aerospace Workers, 781 F.2d 1393, 1398-99 (9th Cir. 1986). A party may be found
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`unduly prejudiced if “[t]hese additional claims advance different legal theories and require proof of
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`different facts.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990).
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`Here, the amendment seeks to add a Plaintiff who has had nearly the same experiences as the
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`other Plaintiffs and proposed Class members. Therefore, this amendment is “not so substantial that
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`granting leave to amend would alter the nature of the claims or the course of litigation.” Garcia v.
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`Zavala, No. 17-cv-06253-TSH, 2020 WL 1015821, 2020 U.S. Dist. LEXIS 35708, at *14 (N.D. Cal.
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`Jan. 29, 2020). There is no unfair prejudice to Defendant, especially while the exact same unlawful
`
`conduct continues. Therefore, this factor also favors Plaintiffs’ Motion.
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`D.
`
`The Amendment Is Not Brought for an Improper Purpose, and the Public Interest
`Weighs In Favor of Leave to Amend
`A court may refuse to grant a party’s motion for leave to amend if the amendment is intended to
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`delay trial or for some other improper purpose. DCD Programs, 833 F.2d at 187. Thus, the moving party’s
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`motive for amending determines whether it has acted in bad faith. Id.
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`There is no evidence that Plaintiffs are seeking to amend for an improper purpose, dilatory motive,
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`or in bad faith. On the contrary, Plaintiffs seek to prosecute their claims on the merits in good faith.
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`Plaintiffs promptly informed the Court and opposing counsel at the Initial Case Management conference
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`on July 14, 2022 that Plaintiffs were being contacted by additional complainants regarding identical
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`conduct by HP and that it was not limited to LaserJet printers. See Javitch Decl., ¶ 4. Plaintiffs have no
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`dilatory motive.
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`Plaintiffs previously sought discovery from Defendant regarding its InkJet printers. Defendant
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`objected. The Court limited discovery to LaserJet printers because no Plaintiff purchased an InkJet printer.
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`(Dkt. 69). Plaintiffs seek to add in the 4AC a Plaintiff who purchased an InkJet printer.
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`V.
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`CONCLUSION
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`For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ motion
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`for leave to file the Fourth Amended Complaint, and grant such other relief as the Court deems
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`appropriate.
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`Dated: August 22, 2022
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`Respectfully submitted,
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`
`By: /s/ Mark L. Javitch
`Mark L. Javitch (SBN 323729)
`JAVITCH LAW OFFICE
`3 East 3rd Ave. Ste. 200
`San Mateo, CA 94401
`Telephone: (650) 781-8000
`Facsimile: (650) 648-0705
`Email: mark@javitchlawoffice.com
`
`Thomas A. Zimmerman, Jr.
`ZIMMERMAN LAW OFFICES, P.C.
`77 West Washington Street, Suite 1220
`Chicago, Illinois 60602
`Telephone: (312) 440-0020
`Facsimile: (312) 440-4180
`Email: tom@attorneyzim.com
`Admitted Pro Hac Vice
`
`Attorneys for Plaintiffs
`and those similarly situated
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