Case No. 3:17-cv-00359-WHA MOTION TO REMAND AND MPA IN SUPPORT THEREOF 

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643_MPA in Support of 

Motion to Compel

Basil P. Fthenakis, Esq. (88399) 

CRITERION LAW 

2225 E. Bayshore Road, Suite 200 

Palo Alto, California 94303 

Tel. (650) 352-8400 

Fax. (650) 352-8408 

Of counsel: 

David S. Godkin (Admitted pro hac vice) 

James Kruzer (Admitted pro hac vice) 

BIRNBAUM & GODKIN, LLP 

280 Summer Street 

Boston, MA 02210 

(617) 307-6100 

godkin@birnbaumgodkin.com 

kruzer@birnbaumgodkin.com 

Attorneys for Plaintiff, 

SIX4THREE, LLC, a Delaware 

limited liability company 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SIX4THREE, LLC, a Delaware limited 

liability company, 

 Plaintiff, 

v. 

FACEBOOK, INC., a Delaware corporation 

and DOES 1 through 50, inclusive 

 Defendants. 

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

NOTICE OF MOTION TO REMAND FOR 

LACK OF FEDERAL JURISDICTION 

AND AWARD OF FEES AND COSTS 

AND MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT THEREOF 

 

Date: February 16, 2017 

Time: 8:00AM 

Ctrm: 8 

Judge: Honorable William H. Alsup 
Case No. 3:17-cv-00359-WHA MOTION TO REMAND AND MPA IN SUPPORT THEREOF 

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TABLE OF CONTENTS 

Page 

MEMORANDUM OF POINTS AND AUTHORITIES ............................................................. 1 

I. BACKGROUND ..................................................................................................................... 1 

 A. Facebook’s Anti-Competitive Conduct .............................................................................. 1 

 B. Plaintiff’s Causes of Action ............................................................................................... 2 

 C. Events Leading Up to Facebook’s Petition for Removal ................................................... 3 

II. NO NECESSITY OF REACHING A FEDERAL QUESTION ............................................ 4 

 A. Plaintiff’s Reliance on the “Unlawful” Prong of Cal. Bus & Prof. Code § 17200 

 Does Not Require Reaching a Federal Question ............................................................... 4 

 B. Plaintiff’s Other State Law and Common Law Causes of Action Do Not Require 

 Reaching a Federal Question) ............................................................................................ 8 

 C. Facebook Cannot Meet Its Burden Regarding Any of the Artful Pleading 

 Requirements ................................................................................................................... 10 

 D. Because Removal is Disfavored, Any Ambiguity Is Resolved Against Removal. .......... 14 

III. PLAINTIFF HAS NOT TRIGGERED 28 U.S.C. § 1446(b)(3) .......................................... 14 

IV. PLAINTIFF IS ENTITLED TO RECOVER ITS COSTS AND ATTORNEYS’ 

 FEES .................................................................................................................................... 16 

V. CONCLUSION ..................................................................................................................... 17 
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TABLE OF AUTHORITIES 

Cases 

Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006) ................................................ 14 

Arco Environmental Remediation, L.L.C. v. Dep’t of Health & Environmental 

Quality of the State of Montana, 213, F.3d 1108 (9th Cir. 2000) ...................................... 11 

Boxer v. Accuray Inc., 906 F.Supp.2d 1012 (N.D. Cal. 2012) ......................................... 13 

Briggs v. First Nat’l Lending Servs., 2010 U.S. Dist. LEXIS 35639 (N.D. Cal. March 

16, 2010) ....................................................................................................................... 8, 11 

Busch v. Jakov Dulcich & Sons, LLC, 2015 U.S. Dist. LEXIS 79325 (N.D. Cal. June 

17, 2015) ........................................................................................................................... 16 

California v. ARC Am. Corp., 490 U.S. 93 (1989) ........................................................... 12 

California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831 (9th Cir. 2004) ........................ 14

California v. Guajardo, 2011 U.S. Dist. LEXIS 3401 (N.D. Cal. Jan. 7, 2011) ................ 8

California v. Pinnacle Sec. CA LP, 746 F.Supp.2d 1129 (N.D. Cal. 2010) ....................... 7 

Carbonel v. ARA Loans and Realty, Inc., 2010 U.S. Dist. LEXIS 81991 (N.D. Cal. 

Aug. 12, 2010) .................................................................................................................. 10 

Castro v. Providian Nat’l Bank, 2000 U.S. Dist. LEXIS 19062 (N.D. Cal. Dec. 29, 

2000) ................................................................................................................................... 8

Cortes v. Bank of America, 2009 U.S. Dist. LEXIS 112815, 2009 WL 4048861 (C.D. 

Cal. Nov. 20, 2009) ........................................................................................................... 10

Davis v. Weger Mort. Corp., 2010 U.S. Dist. LEXIS 80683 (C.D. Cal. June 22, 2010) ............... 8 

Dimidowich v. Bell & Howell, 803 F.2d 1473 (9th Cir. 1986) ............................................ 6 

Gasu v. Miles, Inc., 980 F.2d 564 (9th Cir. 1992) ............................................................ 14 

Goff v. Dial & Assocs. PC, 2015 U.S. Dist. LEXIS 7471 (C.D. Cal. Jan 22, 2015). ....... 10 

Golden 1 Credit Union v. H & B Group, 2007 U.S. Dist. LEXIS 31142 (E.D. Cal. 

Apr. 27, 2007) ................................................................................................................... 14 

Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005) ...... 10, 12

Graybill-Bundgard v. Standard Ins. Co., 793 F. Supp. 2d 1117 (N.D. Cal. 2011) .......... 15 

Hansen v. Blue Cross of Cal., 891 F.2d 1384 (9th Cir. 1989) ........................................... 13 

Hendricks v. Dynegy Power Marketing, 160 F. Supp. 2d 1155 (S.D. Cal. 2001) .... 4, 5, 12 

Holliman v. Kaiser Foundation Health Plan, 2006 U.S. Dist. LEXIS 14627 (N.D. 

Cal. Mar. 14, 2006) ............................................................................................................. 8 

Iniquez v. Vantium Capital, Inc., 2013 U.S. Dist. LEXIS 41776 (N.D. Cal. Mar. 25, 

2013) ................................................................................................................................... 8 

Klussman v. Cross-Country Bank, No. C-01-4228-SC, 2002 WL 1000184 (N.D. Cal. 

May 15, 2002) ................................................................................................................... 10 
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Kvam v. Chase Home Fin. LLC, 2012 U.S. Dist. LEXIS 77218 (N.D. Cal. June 4, 

2012) ................................................................................................................................. 10

Lippitt v. Raymond James Fin. Servs., 340 F.3d 1033 (9th Cir. 2003) ................ 4, 5, 11, 13 

Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). ...................................................... 16

Martinez ex rel. Morales v. City of Fairfield, 2008 U.S. Dist. LEXIS 73674 (E.D. 

Cal. Aug. 13, 2008) ............................................................................................................. 9 

Moore v. Permanente Medical Group, Inc., 981 F.2d 443 (9th Cir.1992). ...................... 16 

National Credit Reporting Ass’n v. Experian Info. Solutions, Inc., U.S. Dist. LEXIS 

17303 (N.D. Cal. July 21, 2004) ........................................................................... 4, 5, 6, 13 

Nevada v. Bank of Am. Corp., 672 F.3d 661 (9th Cir. Nev. 2012) .............................. 12, 14 

Papke v. Network Capital Funding Corp., 2013 U.S. Dist. LEXIS 66566 (C.D. Cal. 

May 9, 2013) ....................................................................................................................... 9 

Perez v. Nidek Co. Ltd., 657 F. Supp. 2d 1156 (S.D. Cal. 2009) ...................................... 10 

Pope v. Wells Fargo Bank, 2010 U.S. Dist. LEXIS 125341, 2010 WL 8388301 (E.D. 

Cal. Nov. 29, 2010) ........................................................................................................... 10 

Rains v. Criterion Sys. Inc., 80 F.3d 339 (9th Cir. 1996) ................................................... 9 

Redwood Theatres, Inc. v. Festival Enterprises, Inc., 908 F.2d 477 (9th Cir. 1990) .. 11, 12 

Roskind v. Morgan Stanley Dean Witter & Co., 165 F.Supp.2d 1059 (N.D Cal. Apr. 

11, 2001) ............................................................................................................................. 8 

Salveson v. Western States Bankcard Asso., 731 F.2d 1423 (9th Cir. 1984) ..................... 12 

Self v. Gen. Motors Corp., 588 F.2d 655 (9th Cir. 1978). ................................................. 15 

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941) ............................................. 14 

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938) ................................ 14 

Sullivan v. First Affiliated Secur., Inc. 813 F.2d 1368 (9th Cir. 1987) .............................. 13 

Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002) ....................................... 14 

Watson v. Buck, 313 U.S. 387 (1941) ............................................................................... 12 

Other Authorities 

28 U.S.C. § 1446 ..................................................................................................... 4, 14, 15 

28 U.S.C. § 1447 ..................................................................................................... 4, 16, 17 

Cal. Bus. & Prof. Code § 17200 ..................................................................................... 2, 3 

Cal. Bus. & Prof. Code § 17500 ..................................................................................... 7, 9 

Cal. Bus. & Prof. Code § 16600 ......................................................................................... 7 

Cal. Bus. & Prof. Code § 16720 ............................................................................... 5, 6, 15 

Cal. Civ. Code § 1750 ......................................................................................................... 7 

Cal. Civ. Code § 1760 ......................................................................................................... 7 
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Cal. Civ. Code § 1770 ......................................................................................................... 7 

Mich. Comp. Law § 445.772 .............................................................................................. 7 

Mich. Comp. Law § 445.773 .............................................................................................. 7 

N.Y. Gen. Bus. Law § 340 .................................................................................................. 7 

N.Y. Gen. Bus. Law § 349 .................................................................................................. 7 
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NOTICE OF MOTION AND MOTION 

 NOTICE IS HEREBY GIVEN to the Court and all counsel of Record that on February 

16 at 8:00AM in Courtroom 8 of the above-entitled court, located at 450 Golden Gate Avenue, 

San Francisco, California, Six4Three, LLC (“643”) will move the Court for an order to remand 

this matter to the Superior Court of California, County of San Mateo. 

 This motion is made on the grounds that Plaintiff has not brought any causes of action 

that necessarily require resolution of federal law. Plaintiff filed its original Complaint in the 

Superior Court of San Mateo County on April 10, 2015 and filed its Second Amended 

Complaint in that court on February 26, 2016, nearly a year ago. Plaintiff proceeded under four 

causes of action, three of which are found in common law and one of which relies upon 

California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §17200 et seq. Plaintiff 

has not asserted that it intends to pursue a violation of federal law. Further, Plaintiff’s reliance 

on the “unlawful” prong of §17200 does not require the Superior Court to reach a federal 

question. Defendant’s removal was also untimely. Defendant removed this matter many months 

after the Second Amended Complaint was filed, one day before its deadline to serve by mail its 

motion for summary judgment and as the parties were waiting for the Superior Court to resolve 

a discovery dispute in which Plaintiff seeks to compel electronic files of Facebook’s key 

executives, including Chief Executive Mark Zuckerberg. For the reasons discussed below, the 

case should be remanded, and Plaintiff should be awarded its costs, including attorneys’ fees. 

 The motion will be based on this notice, memorandum of points and authorities, and 

Declaration of David S. Godkin, Esq., and all pleadings, records, files in this action, upon oral 

and documentary evidence to be presented at the hearing of the motion, and upon any other 

material which may properly come before the Court at or before the hearing on the motion. 

Dated: January 27, 2017 CRITERION LAW 

 BIRNBAUM & GODKIN, LLP 

 By: /s/ David S. Godkin 

 David S. Godkin (pro hac vice) 

 Basil P. Fthenakis 

James E. Kruzer (pro hac vice) 
Case No. 3:17-cv-00359-WHA MOTION TO REMAND AND MPA IN SUPPORT THEREOF 

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643_MPA in Support of 

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 Attorneys for Plaintiff 

 Six4Three, LLC 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. BACKGROUND 

A. Facebook’s Anti-Competitive Conduct 

 This matter concerns a pattern of behavior undertaken by Defendant Facebook, Inc. 

(“Defendant” or “Facebook”) over at least a seven-year period starting some time around or 

after its decision to launch its own operating system upon which software companies could 

build applications (“Facebook Platform”) and which amounts to a classic “bait and switch” 

tactic barred by California law. Beginning around May 24, 2007 and extending until at least 

April 30, 2014, Facebook engaged in a campaign of explicit promises, enticements and 

representations with the specific aim of inducing tens of thousands of software developers 

(“Developers”) like Plaintiff Six4Three, LLC (“Plaintiff” or “643”) to develop applications for 

Facebook Platform. As part of this deliberate campaign of inducement, Facebook made 

repeated official representations that Developers would have a level playing field, fair 

competition and opportunity to build businesses. Facebook explicitly stated on numerous 

occasions that it would permit software companies to build applications competitive both with 

Facebook and with applications built by larger software companies that paid Facebook 

substantial sums of money to advertise on Facebook-owned properties. Facebook repeatedly 

stated in official policy documents, announcements, and meetings over many years that it 

would take no action to provide an unfair advantage to certain companies at the expense of 

others. 

 Facebook’s campaign was part of a calculated strategy to drive Facebook’s own growth 

by leveraging the hard work of Developers. Indeed, at the time Facebook launched Facebook 

Platform, it had less than 25 million users. By 2014, once Facebook had secured over 1.3 

billion users and cemented its position as a dominant global economy, Facebook decided it 

would prefer to no longer compete with Developers around certain types of applications, so it 

reversed course and broke its promise of equal access, fair competition, and the opportunity to 

build a business after Developers had reasonably relied on this promise for many years. This 
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decision, implemented on April 30, 2015, made it impossible for tens of thousands of small 

software companies to recoup or profit from their investments, while ensuring that Facebook 

and certain large software companies acting in concert with Facebook would exclusively reap 

the benefits of Developers’ investments in a wide range of applications on Facebook Platform. 

 The application categories in which Facebook colluded with other large companies to 

shut out small software businesses range from contacts and calendar management, photo 

sharing, video streaming, messaging, lifestyle, music, books, utility and many other software 

application categories. Upon executing the “switch” in its “bait and switch” campaign, 

Facebook entered into numerous pay-to-play agreements and engaged in other actions in 

concert with large software developers that are prohibited by California law and other state 

laws. Specifically, Facebook shut down access to Facebook Platform, which it had promised 

for years would be available on a fair and open basis, to all companies except those that had the 

financial wherewithal to enter into special arrangements advantageous to Facebook. 

 B. Plaintiff’s Causes of Action

 643 filed suit against Facebook on April 10, 2015 in the Superior Court of California, 

County of San Mateo (the “Superior Court”). The operative pleading, 643’s Second Amended 

Complaint, was filed on or about February 26, 2016. See Declaration of David S. Godkin, 

(“Godkin Decl.”), Exhibit 1. Facebook filed a Demurrer, which the Superior Court overruled 

on June 30, 2016 as to four of the five causes of action set forth in the Complaint, noting that 

“Plaintiff has specifically alleged that it was a victim to a Facebook practice/scheme to lure in 

developers, generate additional advertising revenue by enhancing the user’s experience and 

then monopolize for itself the market for image search capabilities.” See Godkin Decl., Exhibit 

2. The four causes of action in which the Court overruled Facebook’s Demurrer are: (1) 

violation of California Business and Professions Code §§ 17200, et seq. (“UCL”); (2) negligent 

misrepresentation; (3) intentional interference with contract; and (4) intentional interference 

with prospective business relations. The Superior Court case was originally set for trial on 

March 13, 2017. The Superior Court extended the trial date to May 15, 2017 at Facebook’s 

request after Facebook changed counsel. Under this new trial date, Facebook’s deadline for 
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filing motions for summary judgment was January 25, 2017, one day before Facebook filed its 

removal petition. 

C. Events Leading Up to Removal Petition

 Neither Plaintiff’s Second Amended Complaint nor any other pleadings or 

communications from Plaintiff in this matter have asserted federal causes of action or relied 

upon federal laws in asserting state or common law causes of action. As of this time, Plaintiff 

has not been required by the Superior Court to assert the basis for its UCL violations that it 

intends to pursue at trial. 

 On December 13, 2016, Facebook propounded an interrogatory asking 643 to “State 

ALL laws that YOU contend Facebook’s conduct violates RELATED TO YOUR CLAIM for 

violation of Business and Professions Code § 17200 et seq.” In answer to this interrogatory 

seeking “ALL laws,” Plaintiff appropriately and truthfully referenced a wide range of laws, 

including reference to numerous state, federal and common law violations as potentially 

accessible via the “unlawful” prong of the UCL. See Godkin Decl., Exhibit 3. Plaintiff 

provided a truthful, complete response to Facebook’s interrogatory, a response that references 

federal law because Facebook asked Plaintiff to identify “ALL laws” that Facebook’s conduct 

may have violated. To be clear, Facebook’s interrogatory did not ask Plaintiff to identify “ALL 

laws Plaintiff intends to use as a basis for its UCL cause of action at trial”. The interrogatory 

simply asked Plaintiff to identify “ALL laws” Facebook’s conduct may have violated. 

Plaintiff’s reference to federal law in this context in order to provide a truthful, complete 

response to an interrogatory cannot serve as the sole basis for Defendant’s claim that reaching a 

federal question is necessary to resolve any of Plaintiff’s causes of action. Again, for avoidance 

of doubt, Plaintiff has at no time indicated that it intends to pursue federal claims as the 

predicate violations of law under the UCL and, based on its causes of action, Plaintiff need not 

pursue federal claims. 

 On January 24, 2017, one day prior to its deadline to serve motions for summary 

judgment, Facebook filed its removal petition on the grounds that 643’s response to Facebook’s 

interrogatory seeking “ALL laws” its conduct may have violated was the first time it became 
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aware that federal questions could be implicated and that therefore this matter is removable 

under 28 U.S.C. § 1446(b)(3). Further, Facebook’s removal comes days after it requested yet 

another delay of the summary judgment deadline so that Facebook could depose a non-party 

witness whose deposition it had improperly noticed for January 30, 2017. See Godkin Decl., 

Exhibit 4. 

 643 has informed Facebook that its removal is contrary to clear legal authority, 

including authority demonstrating that a federal question need not be reached here under the 

“unlawful” prong of the UCL. See Godkin Decl., Exhibit 5. Notwithstanding this information, 

Facebook has refused to remand this case to Superior Court and has forced Plaintiff to file this 

motion. Facebook has already moved the trial date and summary judgment deadline in Superior 

Court once over Plaintiff’s objection. Facebook’s litigation and delay tactics imperil 643’s 

ability to resolve its claims at trial scheduled for May 15, 2017 in the Superior Court. In order 

to mitigate the damages caused to Plaintiff and the disruption to the Superior Court calendar, 

Plaintiff respectfully requests that this Court remand the case to Superior Court and, pursuant 

to 28 U.S.C. § 1447(c), award Plaintiff its expenses, including its attorneys’ fees, in connection 

with filing this motion. 

II. NO NECESSITY OF REACHING A FEDERAL QUESTION 

 A. Plaintiff’s Reliance on the “Unlawful” Prong of Cal. Bus. & Prof. Code § 

 17200 Does Not Require Reaching a Federal Question 

In its Notice of Removal, Facebook cites one authority, National Credit Reporting 

Ass’n v. Experian Information Solutions Inc., for its position that 643’s UCL claim arises under 

federal antitrust law. See Godkin Decl., Exhibit 4, at 3. National Credit denied a petition to 

remand on the ground that the “unlawful” prong of the UCL necessarily required reaching a 

federal question and the plaintiff in that case “could not have avoided borrowing Section 2 of 

the Sherman Act”. National Credit Reporting Ass’n v. Experian Info. Solutions, Inc., U.S. Dist. 

LEXIS 17303, at *9 (N.D. Cal. July 21, 2004). This matter is clearly distinguishable under 

National Credit’s own reasoning when distinguishing Lippitt v. Raymond James Fin. Servs., 
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340 F.3d 1033 (9th Cir. 2003) and Hendricks v. Dynegy Power Marketing, 160 F. Supp. 2d 

1155 (S.D. Cal. 2001). In Lippitt, defendant argued that plaintiff’s UCL claims rested on the 

resolution of federal regulations. However, the Ninth Circuit “construed the complaint to allege 

fraud and deceptive advertising practices rather than any violation of federal regulation.” 

National Credit, U.S. Dist. LEXIS 17303, at *14. The Ninth Circuit hinged its decision on the 

fact that the “state court need not inquire into NYSE regulations, or even refer to federal law, in 

the case before us.” Lippitt, 340 F.3d at 1045. Similarly, in Hendricks, because plaintiff could 

access the “unlawful” prong of the UCL via the Cartwright Act, Cal. Bus. & Prof. Code § 

16720, there was no necessity of reaching a federal question and plaintiff did not need to 

borrow federal law and seek an underlying violation of federal law in order to prevail on any of 

its causes of action. Hendricks, 160 F. Supp. 2d at 1156. This case is virtually identical to 

Hendricks and Lippitt because no cause of action asserted by Plaintiff relies upon federal law 

and no potential avenue through which Plaintiff can establish its causes of action necessarily 

entails addressing a federal question. In sharp contrast to National Credit, where plaintiff 

specifically alleged violations of federal antitrust laws, Plaintiff here has not “made a Sherman 

Act bed” and instead is free to rely upon numerous predicate violations of state and common 

law under the “unlawful” prong of the UCL. National Credit, U.S. Dist. LEXIS 17303, at *15. 

 Further, in National Credit, a host of other factors, none of which are present here, 

demonstrated the necessity of determining violations of Section 2 of the Sherman Act in order 

to satisfy the “unlawful” prong of the UCL. First, the National Credit plaintiff specifically 

asserted federal antitrust violations in its complaint. Second, that plaintiff alleged a single cause 

of action under California’s UCL which, in order to be resolved, required reference to or 

interpretation of the Sherman Act for at least one of the three UCL prongs. Third, twenty-four 

of plaintiff’s members had filed a nearly identical complaint specifically alleging Sherman Act 

violations, strongly suggesting that plaintiff had artfully pleaded its way out of a clear federal 

question. Fourth, that plaintiff’s claims of anti-competitive behavior were “void of any 

allegations of an agreement or a conspiracy to act among defendants.” National Credit, U.S. 

Dist. LEXIS 17303, at *9. 
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 In sharp contrast to National Credit, Plaintiff here has never asserted federal antitrust 

violations and is not required to reach a federal question under any of the UCL prongs. Plaintiff 

has alleged specifically in its Second Amended Complaint that Facebook struck deals with 

certain large software companies to provide them a competitive advantage not available to 

small businesses after closing off access to its operating system. See Godkin Decl., Exhibit 1, 

¶¶ 18-19, 103. Plaintiff has further alleged specifically in its Second Amended Complaint that 

Facebook repeatedly promised over many years that it would not enter into special 

relationships with large or preferred companies in order to slant the playing field and dampen 

fair competition. See Godkin Decl., Exhibit 1, ¶ 22-23. Further, Plaintiff has stated in its 

response to Facebook’s interrogatory that in the ongoing course of reviewing Facebook’s 

production, Plaintiff believes Facebook engaged in concerted action with certain preferred 

companies in the form of tying agreements and other prohibited conduct in order to 

systematically disadvantage small businesses and ensure various software markets would be 

dominated by a handful of companies. 

 Concerted action in the restraint of trade of this nature is prohibited under California’s 

Cartwright Act, Cal. Bus. & Prof. Code § 16720. Dimidowich v. Bell & Howell makes 

abundantly clear that “a claim for conspiracy to monopolize is cognizable under the Cartwright 

Act because it alleges the requisite combination of actors.” Dimidowich v. Bell & Howell, 803 

F.2d 1473, 1475 (9th Cir. 1986). Further, “[s]ince it is often difficult to show direct evidence of 

a combination or conspiracy, concerted action may be inferred from circumstantial evidence of 

the antitrust defendant's conduct and course of dealings. However, to survive a motion for 

summary judgment, a plaintiff must present evidence that tends to exclude the possibility that 

the alleged conspirators acted independently.” Dimidowich, 803 F.2d at 1475. Plaintiff’s 

discovery is ongoing in the Superior Court. Upon completion of discovery, which has been 

repeatedly delayed and obstructed by Facebook, Plaintiff is confident it will have evidence 

sufficient to support all of the foregoing elements to prevail under the Cartwright Act. 

 Plaintiff may also pursue the “unlawful” prong of the UCL via common law claims and 

California statutes. For example, Facebook’s conduct repeatedly violates Business and 
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Professions Code §§ 17500 et seq., which prohibits advertising goods or services that Facebook 

knew or should have known were likely to deceive. Facebook’s conduct also repeatedly 

violates California’s Consumer Legal Remedies Act (Cal. Civ. Code §§ 1750 et seq.) 

protecting consumers against unfair and deceptive business practices (Cal. Civ. Code § 1760) 

and various violations of Cal. Civ. Code § 1770. Finally, Facebook’s conduct repeatedly 

violates Business and Professions Code §§ 16600 et seq. prohibiting contracts that restrain 

engagement in a lawful profession, trade or business of any kind. 

 Moreover, Plaintiff may pursue the “unlawful” prong of the UCL via other state laws, 

including, without limitation, state antitrust, anti-competition and false advertising laws. 

During a portion of the time in which Facebook’s conduct alleged in the Second Amended 

Complaint occurred, Plaintiff’s primary place of business was located in New York State. New 

York General Business Law § 340 expressly prohibits contracts or agreements for monopoly or 

in restraint of trade. Additionally, New York General Business Law § 349 prohibits deceptive 

acts or practices in the conduct of any business, trade or commerce or in the furnishing of any 

service. Further, Plaintiff and Defendant both generated revenues from customers or had a 

reasonable expectation of generating revenue from prospective customers in various other 

states with antitrust laws accessible via the “unlawful” prong of the UCL. See, e.g., Michigan 

Compiled Laws §§ 445.772 and 445.773. Finally, Plaintiff may pursue the “unlawful” prong of 

the UCL by reason of Facebook’s tortious conduct, including but not limited to constructive 

fraud, negligent misrepresentation of material fact, intentional interference with contract and 

intentional interference with prospective business relations. 

 This Court has subsequently distinguished National Credit when a party is able to 

pursue the “unlawful” prong of the UCL without the necessity of determining violation of a 

federal law. In California v. Pinnacle Sec. CA LP, this Court ruled that “[b]ecause Plaintiff is 

able to show defendant acted unlawfully based on these state law provisions and without any 

references to federal law, remand is appropriate. California v. Pinnacle Sec. CA LP, 746 

F.Supp.2d 1129, 1131 (N.D. Cal. 2010). In Briggs v. First National Lending Services, this 

Court held that “[s]ince the complaint's UCL claim is supported by numerous theories of 
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recovery under California law, the alleged violation of TILA is not considered a necessary 

element under Rains.” Briggs v. First Nat’l Lending Servs., 2010 U.S. Dist. LEXIS 35639, *8 

(N.D. Cal. March 16, 2010).1 In this instance, where Plaintiff has shown no exclusive reliance 

on the Sherman Act for any prong of its UCL claim, remand is appropriate in accordance with 

Hendricks, Lippitt, Pinnacle Sec., Briggs, Guajardo, Holliman and others. 

 In sum, Plaintiff has neither alleged any federal causes of action nor relied on any 

federal claims in asserting state or common law causes of action. Further, it is abundantly clear 

that Plaintiff’s cause of action for “unlawful” conduct under the UCL does not necessarily 

require resolution of a federal question and indeed passes through a host of other state and 

common law questions. Plaintiff’s only reference to federal law was in a non-voluntary 

response to Defendant’s interrogatory seeking a truthful answer to all potential laws 

Facebook’s conduct may have violated.2 This cannot be a sufficient basis for removal to 

Federal Court. 

 B. Plaintiff’s Other State Law and Common Law Causes of Action Do Not 

 Require Reaching a Federal Question 

 

 In its Second Amended Complaint, Plaintiff seeks relief not only through the 

“unlawful” prong of the UCL, but through three other prongs as well: (1) unfair business acts 

or practices; (2) fraudulent business acts or practices; (3) unfair, deceptive, untrue or 

misleading advertising; and (4) business acts or practices prohibited by Cal. Bus. and Prof. 

 

1 See also California v. Guajardo, 2011 U.S. Dist. LEXIS 3401, at *7-9 (N.D. Cal. Jan. 7, 2011) (“a jury could 

find that defendants have violated Section 17200 without finding that defendants have violated the Code of 

Federal Regulations”); Holliman v. Kaiser Foundation Health Plan, 2006 U.S. Dist. LEXIS 14627, at *13 (N.D. 

Cal. Mar. 14, 2006) (finding no federal question jurisdiction where UCL claim was based on violations of 

California Labor code and FLSA); Roskind v. Morgan Stanley Dean Witter & Co., 165 F.Supp.2d 1059, 1067 

(N.D Cal. Apr. 11, 2001) (finding no federal question jurisdiction where UCL claim was based on “unfair” 

misrepresentations and violation of the National Association of Securities Dealers rules); Castro v. Providian 

Nat’l Bank, 2000 U.S. Dist. LEXIS 19062 at *8-9 (N.D. Cal. Dec. 29, 2000) (finding that even if plaintiffs were 

basing UCL claim on violation of federal Truth in Lending Act (“TILA”) in addition to violations of California 

law, claim did not depend on question of federal law because jury could find violation of UCL without finding 

violation of TILA); Davis v. Weger Mort. Corp., 2010 U.S. Dist. LEXIS 80683, at *1 (C.D. Cal. June 22, 2010) 

(remanding UCL claim because other state law was alleged to be violated in addition to TILA). 2

 Even in cases were plaintiff asserts federal claims, this Court has permitted plaintiff leave to amend its complaint 

unambiguously to remove federal claims, stating that in such circumstance remand would be appropriate. See, e.g., 

Iniquez v. Vantium Capital, Inc., 2013 U.S. Dist. LEXIS 41776, at *7-9 (N.D. Cal. Mar. 25, 2013). 
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Code §§ 17500-17577.5. Further, Plaintiff has alleged three common law causes of action in its 

complaint: (1) negligent misrepresentation; (2) intentional interference with contract; and (3) 

intentional interference with prospective contractual relations. At no time, whether in its 

Second Amended Complaint or otherwise, has Plaintiff asserted or even referenced a federal 

law as its basis for pursuing any of these causes of action. Further, in its removal petition, 

Defendant has not asserted that any of these causes of action necessarily entail consideration of 

a federal question. 

 As a general matter, "when a claim can be supported by alternative and independent 

theories, one of which is a state law theory and one of which is a federal law theory - federal 

question jurisdiction does not attach because federal law is not a necessary element of the 

claim." See Rains v. Criterion Sys. Inc., 80 F.3d 339, 346 (9th Cir. 1996).3 In a “cause of action 

that sweeps in a broad range of predicate unlawful conduct...the fact that a federal law is 

‘borrowed’ does not by itself establish jurisdiction in this court.” Papke v. Network Capital 

Funding Corp., 2013 U.S. Dist. LEXIS 66566, at *8 (C.D. Cal. May 9, 2013). As the Papke

Court held: “Resolution of this case may ultimately hinge on a determination of FLSA noncompliance, or it may not, but this does not alter the fundamental nature of plaintiffs’ state law 

claims.” Papke, at *8. 

 Similarly, in Goff v. Dial & Assocs., the Central District of California found that 

“[s]ince any of these alleged unlawful business practices may give rise to liability under the 

UCL, a jury could find that Defendant violated the UCL without also finding that it violated the 

federal RICO statute....Therefore, the federal law is not a necessary element of Plaintiff's 

claim. Federal question jurisdiction over a UCL claim is typically ‘based on either the violation 

of a federal statute over which federal courts have exclusive jurisdiction or the violation of a 

single federal statute with no allegations of state law violations.’ [Pope, at *3] Because Plaintiff 

has alleged viable non-federal alternatives to support his UCL claim, federal question 

 

3 See also Martinez ex rel. Morales v. City of Fairfield, 2008 U.S. Dist. LEXIS 73674, at *2 (E.D. Cal. Aug. 13, 

2008) (even when federal law is incorporated by reference into a cause of action in the complaint, when the cause 

of action is supported by alternate theories based on state law alone, the cause of action does “not necessarily arise 

under federal law”). 
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jurisdiction is not established.” Goff v. Dial & Assocs. PC, 2015 U.S. Dist. LEXIS 7471, at *7 

(C.D. Cal. Jan 22, 2015). 

 This same conclusion has been reached repeatedly by California’s federal courts, 

including this Court and the Ninth Circuit. See Kvam v. Chase Home Fin. LLC, 2012 U.S. Dist. 

LEXIS 77218, at *5-6 (N.D. Cal. June 4, 2012) (“Here, Defendants removed Plaintiff’s state 

law complaint on the grounds that the allegations, particularly the Section 17200 cause of 

action, contain some references to violations of federal law. ‘In determining whether federal 

jurisdiction attaches to a state law claim that is predicated on violations of federal law, a court 

must examine whether the 'state-law claim necessarily raise[s] a stated federal issue, actually 

disputed and substantial, which a federal forum may entertain without disturbing any 

congressionally approved balance of federal and state judicial responsibilities.’” Cortes v. Bank 

of America, 2009 U.S. Dist. LEXIS 112815, 2009 WL 4048861, at *2 (C.D. Cal. Nov. 20, 

2009) (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, at 314 

(2005)).4 Given that Plaintiff has not even asserted a federal law in relying on any of its other 

causes of action, the foregoing precedents clearly provide no justification for removal 

stemming from Plaintiff’s other causes of action. 

 C. Facebook Cannot Meet Its Burden Regarding Any of the Artful Pleading 

 Requirements 

 Under the artful pleading doctrine, a federal court may exercise removal even if a 

federal question does not appear on the face of the complaint so long as one of three 

requirements is met: (1) federal law completely preempts state law; (2) the claim is necessarily 

federal in character; and (3) the right to relief depends on the resolution of a substantial, 

 

4 See also Pope v. Wells Fargo Bank, 2010 U.S. Dist. LEXIS 125341, 2010 WL 8388301, at *3 (E.D. Cal. Nov. 

29, 2010) (“Courts have consistently found that federal question jurisdiction does not exist where a plaintiff has 

alleged a UCL claim based on violations of both state and federal law.”); Carbonel v. ARA Loans and Realty, Inc.,

2010 U.S. Dist. LEXIS 81991, at *2 (N.D. Cal. Aug. 12, 2010) (granting motion to remand because the plaintiff's 

Section 17200 claim was predicated on violations of state law and three federal statutes, which were consequently 

not a “necessary part of the claim” and would just “shape the court’s interpretation” of the claim) (citations and 

quotations omitted)); Perez v. Nidek Co. Ltd., 657 F. Supp. 2d 1156, 1161 (S.D. Cal. 2009) (“Federal question 

jurisdiction is not created by the fact that Plaintiffs’ state law claims under the CLRA and UCL hinge upon 

alleged violations of the FDCA and its regulations.”); Klussman v. Cross-Country Bank, No. C-01-4228-SC, 2002 

WL 1000184, at *2-6 (N.D. Cal. May 15, 2002) (removal improper where plaintiff’s UCL claim was based on 

violation of FCRA). 
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disputed federal question. See Arco Environmental Remediation, L.L.C. v. Dep’t of Health & 

Environmental Quality of the State of Montana, 213, F.3d 1108, 1114 (9th Cir. 2000); see, e.g. 

Briggs, 2010 U.S. Dist. LEXIS 35639, at *5-6. Like Briggs, “it is undisputed that, in this case, 

the face of plaintiffs’ complaint does not allege a claim arising exclusively under federal law.” 

Briggs, 2010 U.S. Dist. LEXIS 35639, at *5. However, the “artful pleading doctrine allows 

courts to delve beyond the face of the state court complaint and find federal question 

jurisdiction by recharacterizing a plaintiff’s state-law claim as a federal claim.” Lippitt, 340, 

F.3d at 1041. 

 Regarding preemption, “the mere presence of a federal issue does not automatically 

confer federal-question jurisdiction, and passing references to federal statutes do not create a 

substantial federal question.” Lippitt, 340 F.3d at 1040-41. Further, simply because the goals of 

state laws and federal laws are aligned to prohibit similar unlawful conduct “is not enough to 

sweep [plaintiff’s] complaint within the exclusive jurisdictional ambit” of a federal law. Lippitt, 

340 F.3d at 1044. Here, Plaintiff has alleged a long history of unfair, deceptive, fraudulent, 

tortious and anti-competitive conduct. States and common law courts have broad authority to 

prohibit this conduct. The notion that California and other state laws prohibiting the alleged 

conduct are somehow all reduced in Plaintiff’s Complaint to federal antitrust violations would 

fail to respect the broad scope of state and common law authority prohibiting unfair, deceptive, 

fraudulent, tortious and anti-competitive conduct entirely independent of federal laws, 

including the Sherman Act. 

 In this regard, Plaintiff is in a similar position as the appellant in Redwood Theatres, 

Inc. v. Festival Enterprises, Inc., 908 F.2d 477 (9th Cir. 1990). In Redwood, the Ninth Circuit 

rejected appellee’s argument that “where an industry is primarily engaged in interstate 

commerce and would benefit from a national uniformity of antitrust law, then restraints upon 

that interstate trade fall within the exclusive jurisdiction of the Sherman Act and federal 

courts.” Redwood, 908 F.2d, at 479-480. Rather, “The Supreme Court...has consistently held 

that ‘Congress intended the federal antitrust laws to supplement, not displace, state antitrust 

remedies,” California v. ARC Am. Corp., 490 U.S. 93, 102 (1989) [citations omitted]; Watson 
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v. Buck, 313 U.S. 387, 403 (1941), and this court has observed that ‘state antitrust laws retain 

vitality in dealing with matters which significantly affect local interests, even if they also have 

interstate aspects.’” Redwood, 908 F.2d, at 479-480 (quoting Salveson v. Western States 

Bankcard Asso., 731 F.2d 1423, 1427 (9th Cir. 1984). Further, “California courts have held that 

the Cartwright Act applies to transactions in interstate commerce.” Id.

 The parallels to Hendricks should also be noted. In Hendricks, the Court determined 

that “‘to remove a state law claim to federal court under the complete preemption doctrine, 

federal law must both completely preempt the state law claim and supplant it with a federal 

claim.’” Hendricks, 160 F. Supp. 2d, at 1159 (quoting Young v. Anthony’s Fish Grottos, Inc., 

830 F.2d 993, 997 (9th Cir. 1987). Further, “the fact that the Federal Power Act includes an 

exclusive jurisdiction provision does not mean that the entire field is preempted; instead, the 

exclusive jurisdiction provision only means that federal preemption is a defense to any Federal 

Power Act claims brought in state court.” Hendricks, 160 F. Supp. 2d, at 1159. The situation is 

no different here as both state and federal governments have broad authority to address unfair, 

deceptive, fraudulent and anti-competitive conduct. As with the Federal Power Act, federal 

antitrust law by no means preempts entirely state law claims as a general matter and certainly 

does not supplant such claims with a federal claim in this instance. 

 To do so here would be to reduce the broad authority states have to regulate anticompetitive conduct independent of federal law to the arguably narrower proscriptions of 

federal antitrust law. Further, this would necessarily result in equating the elements of 

proscribed conduct under state law with those of federal law. As Courts have made clear, “the 

exercise of federal jurisdiction must not ‘disturb any congressionally approved balance of 

federal and state judicial responsibilities.’” See Nevada v. Bank of Am. Corp., 672 F.3d 661, 

675 (9th Cir. Nev. 2012) (quoting Grable, 545 U.S. at 313). Permitting removal to federal court 

for any state law claim involving anti-competitive, fraudulent or deceptive conduct would 

“herald a potentially enormous shift of traditionally state cases into federal courts.” Nevada, 

672 F.3d, at 676 (quoting Grable, 545 U.S., at 319). Finally, it is not even clear which federal 

statutes would preempt all of Plaintiff’s state and common law claims, as Plaintiff at no time 
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has asserted its intention to pursue any federal causes of action directly or rely upon any federal 

law violations under the “unlawful” prong of the UCL. Based on Facebook’s continued pattern 

of obstruction and delay, Plaintiff has not even been afforded the opportunity yet to discover 

the key evidence necessary to determine once and for all the various violations it intends to 

pursue in summary judgment and the various defendants it will name. Even so, it is clear that 

none of these causes of action necessarily hinges on a federal question, let alone on a specific 

federal statute to which any state law claims would ultimately reduce. 

 There can be no doubt that Plaintiff’s claim is not necessarily federal in character and 

that none of Plaintiff’s prayers for relief hinge on the determination of a federal question. 

Because Plaintiff’s claim is not “predicated on a violation of federal antitrust laws,” unlike 

National Credit, the artful pleading doctrine is inapposite. National Credit, 2004 U.S. Dist. 

LEXIS 17303, at *6. The artful pleading doctrine is intended to prohibit circumstances in 

which a plaintiff deliberately omits allegations of federal law in pleadings where the federal 

law is essential to establishing its claim. See Lippitt, 340 F.3d, at 1041; Hansen v. Blue Cross of 

Cal., 891 F.2d 1384, 1389 (9th Cir. 1989). It serves to discourage disingenuous conduct of 

plaintiffs who attempt to hide behind the well-pleaded complaint rule. See Hansen, 891 F.2d, at 

1389. However, the Ninth Circuit cautions courts to rely upon the artful pleading doctrine 

“only in limited circumstances as it raises difficult issues of state and federal relationships and 

often yields unsatisfactory results.” See Sullivan v. First Affiliated Secur., Inc. 813 F.2d 1368, 

1376 (9th Cir. 1987). 

 Here, Defendant must show that a violation of federal law is a necessary precursor to 

Plaintiff prevailing on any of its causes of action in order to invoke the artful pleading doctrine. 

See Boxer v. Accuray Inc., 906 F.Supp.2d 1012, 1016 (N.D. Cal. 2012) (remanding to Superior 

Court because defendant made “no showing that a violation of the Dodd-Frank Act with 

respect to disclosures in a proxy statement is a necessary prerequisite to finding of 

materiality”). Facebook cannot meet this burden as the only information upon which it relies is 

Plaintiff’s non-voluntary answer to an interrogatory served by Facebook asking Plaintiff to 

identify all potential laws Facebook’s conduct may have violated, independent of whether 
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Plaintiff intends to pursue such laws at trial. Finally, the fact that this matter may be construed 

by Facebook to entail novel issues arising under federal law does not by itself justify removal 

to federal court. See Nevada, 672 F.3d, 674-675 (9th Cir. 2012) (finding that the question of 

whether a particular claim arises under federal law does not depend on the novelty of the 

federal issue). 

 D. Because Removal is Disfavored, Any Ambiguity Is Resolved Against 

 Removal

 Federal removal statutes are strictly construed against the exercise of removal 

jurisdiction. Abrego v. Dow Chem. Co., 443 F.3d 676, 685 (9th Cir. 2006) (citing Syngenta 

Crop Protection, Inc. v. Henson, 537 U.S. 28, at 32 (2002)); California ex rel. Lockyer v. 

Dynegy, Inc., 375 F.3d 831, at 838 (9th Cir. 2004); Golden 1 Credit Union v. H & B Group, 

Inc., No. 1:06-cv-1717, 2007 U.S. Dist. LEXIS 31142, at *7 (E.D. Cal. Apr. 27, 2007) (“The 

removal statute must be strictly construed, with all doubts and ambiguities resolved against 

removal and in favor of remand.”) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 

at 108 (1941)). “The ‘strong presumption’ against removal jurisdiction means that the 

defendant always has the burden of establishing that removal is proper.” Gasu v. Miles, Inc., 

980 F.2d 564, at 566 (9th Cir. 1992) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 

U.S. 283, at 288-90 (1938)). 

 Defendant cannot meet its burden of establishing that removal is proper. To the extent 

there is any ambiguity, it should be resolved against removal. These well-established principles 

further require remanding this matter to the Superior Court. 

III. PLAINTIFF HAS NOT TRIGGERED 28 U.S.C. § 1446(b)(3) 

 Plaintiff’s non-voluntary, truthful response to an interrogatory seeking all potential laws 

Facebook’s conduct may have violated is not sufficient to trigger a window for filing a removal 

petition almost 22 months since Plaintiff filed suit. On the one hand, if Plaintiff’s interrogatory 

response indeed represents the new information upon which Defendant is relying to start the 
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clock for its removal petition under 28 U.S.C. § 1446(b)(3), then the interrogatory response on 

its face demonstrates that Facebook cannot show that Plaintiff’s causes of action necessarily 

reduce to a violation of any underlying federal law, since Plaintiff specifically mentions 

numerous California and other state laws accessible to Plaintiff under the “unlawful” prong of 

the UCL, including multiple violations of the Cartwright Act, Cal. Bus. & Prof. Code § 16720. 

However, on the other hand, if Facebook were to rely on any information outside Plaintiff’s 

interrogatory response, then none of that information could be construed as new information as 

a result of a voluntary act on Plaintiff’s part, as Plaintiff has consistently described Facebook’s 

“bait and switch” conduct and collusion with other companies in pay-to-play and similar 

schemes since its very first pleading in April 2015. 

 Facebook either properly served its removal petition under § 1446(b)(3) in relying on 

Plaintiff’s interrogatory response, in which case the response demonstrates on its face that 

Facebook cannot meet its burden under artful pleading to show that a substantial federal 

question is necessitated under any prong of any cause of action; or, Facebook is relying on 

information that Plaintiff has consistently communicated to Facebook for over two years now, 

in which case Facebook has improperly served its removal petition in violation of the 

requirements of § 1446(b)(3). One of those two scenarios must be the case. 

 Further, Plaintiff appreciates that § 1446(b)(3) applies to any “other paper from which it 

may first be ascertained the case is one which is or has become removable,” and therefore that 

any motion papers submitted by Plaintiff could constitute a voluntary act sufficient to trigger § 

1446(b)(3). Self v. Gen. Motors Corp., 588 F.2d 655, 657-659 (9th Cir. 1978). However, in the 

instant case, it appears that Defendant has deliberately attempted to bait Plaintiff into triggering 

the § 1446(b)(3) clock through a mandatory, verified response to its served interrogatory that 

does not even ask which laws upon which Plaintiff intends to rely, but instead requires Plaintiff 

to answer truthfully under threat of sanction all potential violations that Facebook’s conduct 

may have violated. “The voluntary/involuntary rule provides that, if a suit could not be filed in 

federal court at the time of its filing, then it must remain in state court unless a ‘voluntary’ act 

of the plaintiff brings about a change that renders the case removable”. See Graybill-Bundgard 
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v. Standard Ins. Co., 793 F. Supp. 2d 1117, 1119-20 (N.D. Cal. 2011) (quotations omitted). 

Responding truthfully and completely to an interrogatory intended to bait Plaintiff does not 

constitute a “voluntary” act. Further, Plaintiff’s response to the interrogatory did not provide 

Facebook with any new information that has not been available to it since April 2015. See, e.g., 

Busch v. Jakov Dulcich & Sons, LLC, 2015 U.S. Dist. LEXIS 79325, at *10-13 (N.D. Cal. June 

17, 2015) (finding no “voluntary” act where defendant’s conduct was disingenuous in 

attempting to ascribe a voluntary act to Plaintiff). 

IV. PLAINTIFF IS ENTITLED TO RECOVER ITS COSTS AND ATTORNEYS’ 

 FEES 

 Where a case is improperly removed, the Court “may require payment of just costs and 

any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 

1447(c). This Court has “wide discretion” under § 1447(c). See Moore v. Permanente Medical 

Group, Inc., 981 F.2d 443, 447 (9th Cir.1992). However, "[a]bsent unusual circumstances, 

courts may award attorney's fees under § 1447(c) only where the removing party lacked an 

objectively reasonable basis for seeking removal." See Martin v. Franklin Capital Corp., 546 

U.S. 132, 141 (2005). 

 Plaintiff’s allegations have been known to defendant since April 2015 when Plaintiff 

first filed suit. Since April 2015, Defendant has taken every possible measure to obstruct and 

delay these proceedings in bad faith such that at this time Plaintiff still has not obtained 

discovery relevant to the crucial decision made by Facebook executives, including Chief 

Executive Zuckerberg, to close Facebook’s operating system (which shut down Plaintiff’s 

business along with many other small businesses). On the eve of its deadline to serve its 

motions for summary judgment, Facebook filed this petition for removal knowing full well that 

none of Plaintiff’s causes of action requires the Superior Court to find a violation of an 

underlying federal law. Rather, Facebook attempted to bait Plaintiff into the purportedly 

“voluntary” act it now uses as the basis for its removal petition in a transparent attempt to 

further obstruct and delay these proceedings. 
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 Facebook further claims that Plaintiff’s failure to respond to a self-serving email sent by 

Facebook’s counsel somehow definitively establishes that Plaintiff intended to rely upon 

federal questions in its cause of action under the UCL. See Godkin Decl., Exhibit 6. In fact, as 

National Credit affirms, even if the Court were to consider Plaintiff’s answer to Facebook’s 

interrogatory to constitute new information and to potentially raise federal questions, the 

answer to the interrogatory on its face shows clearly that there is no necessity to reach a federal 

question under the “unlawful” prong of the UCL. 

 Facebook filed its removal petition with full knowledge of these facts and elected to 

proceed even after Plaintiff again clarified all this to Facebook. Facebook’s removal petition is 

a transparent attempt to delay the Superior Court trial, and to avoid producing communications 

among Facebook’s executive team clearly relevant to Plaintiff’s causes of action. Given that 

Plaintiff is a small business with limited funds that was shut down by Facebook’s conduct, 

Facebook’s gamesmanship in submitting this removal petition at this juncture has jeopardized 

Plaintiff’s ability to obtain judgment at trial scheduled for May 15, 2017. 

 For the foregoing reasons, Facebook did not have an objectively reasonable basis for 

removing the case when it did, and Plaintiff consequently should be reimbursed its costs and 

attorneys’ fees in preparing and defending this motion. 

IV. CONCLUSION 

 For all of the foregoing reasons, 643 respectfully requests that the Court remand this 

matter back to the Superior Court. Additionally, 643 respectfully requests an award of its costs 

and fees in accordance with 28 U.S.C. § 1447(c). 

Dated: January 27, 2017 CRITERION LAW 

 BIRNBAUM & GODKIN, LLP 

 By: /s/ David S. Godkin 

 Basil P. Fthenakis, Esq. 

David S. Godkin (pro hac vice) 

James E. Kruzer (pro hac vice) 

 Attorneys for Plaintiff 

 Six4Three, LLC 
Case No. 3:17-cv-00359-WHA MOTION TO REMAND AND MPA IN SUPPORT THEREOF 

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643_MPA in Support of 

Motion to Compel

CERTIFICATE OF SERVICE 

The undersigned hereby certifies, under penalty of perjury under the laws of the State of 

California, that I electronically filed the foregoing document with the Clerk of the Court using 

the CM/ECF system which will send notification of such filing to the following: 

Sonal N. Mehta 

Laura E. Miller 

Catherine Y. Kim 

Durie Tangri LLP 

217 Leidesdorff Street 

San Francisco, CA 94111 

DATED: January 27, 2017 

By: /s/ David S. Godkin 

 David S. Godkin