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DEFENDANT FACEBOOK INC.’S OBJECTIONS TO EVIDENCE IN PLAINTIFF SIX4THREE’S 

REPLY TO ITS MOTION TO REMAND / CASE NO. 3:17-CV-00359-WHA

DURIE TANGRI LLP

SONAL N. MEHTA (SBN 222086)

smehta@durietangri.com

LAURA E. MILLER (SBN 271713)

lmiller@durietangri.com

CATHERINE Y. KIM (SBN 308442)

ckim@durietangri.com

217 Leidesdorff Street

San Francisco, CA 94111

Telephone: 415-362-6666

Facsimile: 415-236-6300

Attorneys for Defendant 

Facebook, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

SIX4THREE, LLC, 

Plaintiff,

v.

FACEBOOK, INC.,

Defendant.

Case No. 3:17-cv-00359-WHA

DEFENDANT FACEBOOK, INC.’S 

OBJECTIONS TO EVIDENCE IN PLAINTIFF

SIX4THREE, LLC’S REPLY TO ITS 

MOTION TO REMAND

Date: February 16, 2017

Time: 8:00 a.m.

Ctrm: 8, 19th Floor

Judge: Honorable William Alsup

Case 3:17-cv-00359-WHA Document 26 Filed 02/09/17 Page 1 of 4
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DEFENDANT FACEBOOK INC.’S OBJECTIONS TO EVIDENCE IN PLAINTIFF SIX4THREE’S 

REPLY TO ITS MOTION TO REMAND / CASE NO. 3:17-CV-00359-WHA

Pursuant to L.R. 7-3(d)(1), Defendant Facebook, Inc. (“Facebook”) objects to Plaintiff Six4Three, 

LLC’s (“Six4Three”) Reply to its Motion to Remand (the “Reply”) (ECF No. 24). Specifically, 

Facebook objects to seventeen new exhibits introduced for the first time on reply, Exhibit Nos. 3–19, as 

well as the five pages of the Reply discussing that new evidence, Reply at 10–15. Further, Facebook 

objects that Six4Three’s Reply violates the Local Rules both by exceeding 28 lines per page and by

including numerous lengthy footnotes in font less than 12-point standard font, thereby exceeding the 

page limits set for a reply brief. See L.R. 3-4(c)(2) & 7-4(b).

First, Six4Three raises entirely new argument and evidence that could and should have been 

raised in its opening papers, if at all. Six4Three has provided no justification or explanation for its 

decision to hold back seventeen exhibits and related argument until reply, nor could it. As this Court 

recognizes, “[r]eply declarations are disfavored. Opening declarations should set forth all facts on points 

foreseeably relevant to the relief sought. Reply papers should not raise new points that could have been 

addressed in the opening.” Alsup, J. Supplemental Order to Order Setting Initial Case Management 

Conference ¶ 8. Every single one of the exhibits objected to were produced to Six4Three months ago 

and could have been included in Six4Three’s opening brief. By disclosing this new evidence and 

argument only now, Six4Three has deprived Facebook of a meaningful opportunity to address 

Six4Three’s new arguments and exhibits and, importantly, has deprived the Court of resolving this 

Motion on a fair and balanced record. This is particularly troublesome given Six4Three’s insistence on 

an expedited briefing schedule and expedited consideration by the Court. Six4Three’s rush to have its 

Motion heard, coupled with its choice to withhold substantial new argument until reply, should not be 

permitted. 

Second, Six4Three’s attempt to supplement the record with new evidence and argument 

submitted with its Reply should be rejected for the simple reason that a reply to a Motion to Remand is 

not the place to amend the operative complaint. Facebook removed this case to federal court based on 

Six4Three’s Second Amended Complaint and its verified responses to contention interrogatories related 

to the Section 17200 claim. To the extent that Six4Three believes that it has a good faith basis to assert 

its new theories of false advertising and anticompetitive conspiracy—as opposed to unilateral 

monopolistic conduct—it should seek leave to amend its complaint. Facebook and the Court would then 

Case 3:17-cv-00359-WHA Document 26 Filed 02/09/17 Page 2 of 4
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DEFENDANT FACEBOOK INC.’S OBJECTIONS TO EVIDENCE IN PLAINTIFF SIX4THREE’S 

REPLY TO ITS MOTION TO REMAND / CASE NO. 3:17-CV-00359-WHA

have the opportunity to review those amended claims and assess both the propriety of amending the 

complaint for the third time at this stage in the case, as well as the legal sufficiency of the new claims as 

pleaded. Instead, Six4Three introduced over a dozen new exhibits in its Reply, and asks this Court to 

review and analyze sixteen internal Facebook documents, spanning several years and involving 

numerous Facebook employees, to determine the plausibility of an unpleaded claim of collusion. 

Six4Three itself continues to refer to a “potential Cartwright Act violation,” and argues that it is 

“premature to determine the full nature of potential antitrust claims.” Reply at 10 (emphasis added). 

This is not how litigation works. The pleading standards in both California and federal courts require 

specificity so that the defendant can understand the scope of the allegations and prepare its case. 

Six4Three’s shifting positions as to what its claims are, while expressly reserving its rights to allege 

virtually any anticompetitive conduct in the future, should not be permitted.

Finally, Six4Three’s Reply violates the formatting requirements for papers filed in this Court and 

exceeds the length limitations without leave to do so. Reply briefs are limited to fifteen pages of text. 

See L.R. 7-4(b). While the Reply just meets this requirement, it only does so by including more than 28 

lines per page, see, e.g., Reply at 9, and numerous lengthy footnotes in smaller than 12-point standard 

font. The Reply thus violates L.R. 3-4(c)(2) and 7-4(b). See, e.g., United States v. Hill, 72 F. Supp. 3d 

1111, 1112 n.2 (N.D. Cal. 2014) (striking footnotes in violation of the Local Rules as they would have 

otherwise exceeded the page limit).

To the extent that the Court considers Six4Three’s new arguments and evidence submitted for the 

first time on reply, Facebook requests that it be permitted to respond substantively in a 5-page sur-reply.

Dated: February 9, 2017

By:

DURIE TANGRI LLP

/s/ Laura E. Miller

SONAL N. MEHTA

LAURA E. MILLER

CATHERINE Y. KIM

Attorneys for Defendant

Facebook, Inc.

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DEFENDANT FACEBOOK INC.’S OBJECTIONS TO EVIDENCE IN PLAINTIFF SIX4THREE’S 

REPLY TO ITS MOTION TO REMAND / CASE NO. 3:17-CV-00359-WHA

CERTIFICATE OF SERVICE

I hereby certify that on February 9, 2017 the within document was filed with the Clerk of the 

Court using CM/ECF which will send notification of such filing to the attorneys of record in this case.

/s/ Laura E. Miller

SONAL N. MEHTA

LAURA E. MILLER

CATHERINE Y. KIM

Case 3:17-cv-00359-WHA Document 26 Filed 02/09/17 Page 4 of 4