Cybertelecom Federal Internet Law & Policy An Educational Project

Notes :: Civil Procedure

NB: This is not a website dedicated to Civil Procedure; we do not track it closely. These notes constitute a loose tracking of civil procedure caselaw based on opinions read relevant to Internet law subjectmatter. In other words, it is what it is (just like everything on this site).

Jurisdiction

Venue

"Venue is proper if the defendant “resides” in the judicial district wherein the suit was filed. 28 U.S.C. §
1391(b)(1). For purposes of venue, a corporation is a resident of any judicial district in which it is subject to
personal jurisdiction. 28 U.S.C. § 1391(c)." -- Hubb System, LLC., v. microDATA GIS, Inc., No. C07-2677 BZ, Slip at 8 (NDCA Aug. 1, 2007)

Motion to Dismiss Fed. R. Civ. P. 12(b)(6)

• [A motion to dismiss for a trademark cause of action] must be evaluated by construing in a light most favorable to the plaintiff, accepting all afactual allegations as true, and determining whether plaintiff can prove any set of facts to support his claims. Perry v. Am Tobacco Co., 324 F3d 845, 848 (6th Cir 2003); Bibbo v Dead Witter Reynolds, Inc., 151 F3d 559, 561 (6th Cir 1998); Sistrunk v. City of Strongsville, 99 F3d 194, 197 (6th Cir 1996). Allegations capable of more than one inference must be construed in the plaintiff's favor. Claybrook v. Birchwell, 199 F3d 350, 354 (6th Cir 2000); In re DeLorean Motor Co., 991 F2d 1236, 1240 (6th Cir 1993). -- Universal Tube & Rollform v. YouTube, Case No. 3:06CV02628, Sec. 1.A. (NDOH June 4, 2007)
• Fed R Civ P 12(b)(6) provides for dismissal of a complaint "for failure of the pleading to state a claim upon which relief can be granted." Rule 12(b) also provides that if, on consideration of a motion under paragraph (6), "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgement and disposed of as provided in Rule 56 (summary judgement)." In assessing a Rule 12(b)(6) motion, the court accepts the plaintiff's factual allegations as true, and askes whether, as a matter of law, the plaintiff is entitled to legal relief. Rippy v Hattaway, 270 F3d 416, 419 (6th Cir 2001). "[A] complaint should not be dismissed for failure to state a claim which would entitle him to relief." Hatford Fire Insurance, Co. v. California, 509 US 764, 811, 113 SCt 2891, 125 LEd 612 (1993) (quoting Conley v Gibson, 355 US 41, 45-46, 78 SCt 99, 2 LEd 2d 80 (1957). -- Eckert v Microsoft Corp., No. 06-11888, Sec. II (EDMI Feb. 13, 2007)

Allegations Assumed to be True

In assessing a Rule 12(b)(6) motion, the court accepts the plaintiff's factual allegations as true, and askes whether, as a matter of law, the plaintiff is entitled to legal relief. Rippy v Hattaway, 270 F3d 416, 419 (6th Cir 2001). " -- Eckert v Microsoft Corp., No. 06-11888, Sec. II (EDMI Feb. 13, 2007)

First in Time Rule

The first-to-file rule is a rule of federal comity that permits district courts to decline jurisdiction if a complaint involving the same issues and parties has been filed previously in another district. Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982); see also Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093, 1097 (N.D. Cal. 2006). At the district court's discretion, it may transfer, stay, or dismiss the duplicative action. Alltrade, Inc., v. Uniweld Products, Inc., 946 F.2d 622, 623 (9th Cir. 1991). Exceptions to the first-to-file rule include suits filed in bad faith, in anticipation of imminent litigation, or as an attempt to forum shop. Id. at 625. Generally, the first-forum court determines whether exceptions apply. Pacesetter, supra, 678 F.2d at 96. Intuitive Surgical v. California Institute of Technology, 2007 WL 1150787, at *7 (N.D. Cal). -- Hubb System, LLC., v. microDATA GIS, Inc., No. C07-2677 BZ, Slip at 10 (NDCA Aug. 1, 2007).

Motion for Summary Judgement Rule 56

12(b)(6) Morphs into Summary Judgement

Although initially presented as a motion under Rule 12(b)(6), Defendant Kaspersky USA’s motion is properly reviewed as a motion for summary judgment under Rule 56 because “matters outside the pleading [we]re presented to and not excluded by the court.” Fed. R. Civ. P. 12(b). -- Zango v Kaspersky Lab, Inc., Case No. C07-0807-JCC, Slip at 3 (WDWA Aug 28, 2007)

No Issue of Material Fact

Rule 56 of the Federal Rules of Civil Procedure states that a party is entitled to summary judgment in its favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. The moving party bears the burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is in fact a genuine issue for trial. Anderson, 477 U.S. at 250.-- Zango v Kaspersky Lab, Inc., Case No. C07-0807-JCC, Slip at 3 (WDWA Aug 28, 2007)