Free Memorandum in Opposition - District Court of California - California

Case 5:07-cv-04507-JF

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Filed 10/30/2007

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1 ROBERT J. YORIO (SBN 93178) [email protected] 2 COLBY B. SPRINGER (SBN 214868) [email protected] 3 CHRISTINE S. WATSON (SBN 218006) [email protected] 4 CARR & FERRELL LLP 2200 Geng Road 5 Palo Alto, California 94303 Telephone: (650) 812-3400 6 Facsimile: (650) 812-3444 7 Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC 8 9 10 11 12 13 ACTICON TECHNOLOGIES LLC, 14 15 v. Plaintiff, PLAINTIFF ACTICON TECHNOLOGIES LLC'S OPPOSITION TO DEFENDANT PTI GLOBAL, INC.'S MOTION TO CHANGE TIME Date: Time: Judge: Courtroom: November 9, 2007 9:00 a.m. Hon. Jeremy Fogel 3, Fifth Floor CASE NO. C 07-4507 JF (HRL) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

16 PRETEC ELECTRONICS CORPORATION, a dissolved California corporation; PTI 17 GLOBAL, INC., a California corporation; CHIU FENG CHEN, an individual; GORDON 18 YU, an individual; TOMMY HO, an individual; ROBERT WU, an individual; GRACE YU, an 19 individual; KUEI LU, an individual; and DOES 1 through 20, 20 Defendants. 21 22 23

Plaintiff Acticon Technologies LLC ("Acticon") hereby files its opposition to Defendant

24 PTI Global, Inc.'s Motion to Change Time. PTI Global, Inc.'s motion should be denied on the 25 grounds that Acticon is likely to suffer irreparable injury if the hearing on its Motion for 26 Preliminary Injunction does not take place on Friday, November 9, 2007, and that PTI Global, 27 Inc.'s motion lacks any basis for the relief sought since PTI Global, Inc. is already represented by 28 counsel in this case.
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Plaintiff's Opposition to Defendant PTI Global, Inc.'s Motion to Change Time C 07-4507 JF (HRL)

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I.

INTRODUCTION

Defendant PTI Global, Inc.'s Motion to Change Time should be denied because (1) Plaintiff

3 Acticon is likely to suffer irreparable injury if the Court does not hear its Motion for Preliminary 4 Injunction on November 9, 2007, as scheduled, since the harm which Acticon requests the Court to 5 enjoin ­ the fraudulent transfer of assets from PTI Global, Inc. to another company, individual or 6 the other named defendants in this case ­ is exactly what a continuance of the hearing would allow; 7 (2) PTI Global, Inc. already has obtained counsel, Ms. Linda Shao; and (3) Chi-Lin Tom, the 8 alleged General Manager of PTI Global, Inc. is prohibited from representing the corporation pro se. 9 10 A. 11 12 13 II. ARGUMENT

PTI Global, Inc. Filed the Same "Motion to Change Time" That Pretec Electronics Corporation Filed in Acticon Technologies, LLC. v. Pretec Electronics Corporation, et. al., Case No. C 06-4679 JF (HRL) in Order to Gain Time to Improperly Dissolve Pretec Electronics Corporation and Fraudulently Transfer Pretec's Assets to PTI Global, Inc. Before Making A Formal Appearance Before the Court. For the second time, Defendant PTI Global, Inc. ("PTI Global"), which Acticon alleges in

14 its Complaint to be the successor corporation to Pretec Electronics Corporation ("Pretec"), is 15 attempting to mislead the Court into granting a continuance of a hearing date on the false basis that 16 it is attempting to obtain counsel in the case. No good cause exists, however, to justify such a 17 continuance and PTI Global lacks a good faith basis for its request. 18 The Motion to Change Time filed by PTI Global in this case is virtually identical to the

19 Motion to Change Time filed by Pretec Electronics Corporation in Acticon Technologies LLC v. 20 Pretec Electronics Corporation, et. al., Case No. 06-4679 JF (HRL) (Pretec I). See Motion to 21 Change Time in Pretec I, dated October 19, 2006, attached as Exhibit A to the Declaration of 22 Christine S. Watson ("Watson Decl."); see Motion to Change Time, filed October 26, 2007, in this 23 case, attached as Exhibit B to the Watson Decl.1 24 In Pretec I, Tommy Ho, Operations Manager of Pretec, who is a defendant in the instant

25 case, filed a Motion to Change Time on behalf of Pretec and subsequently contacted counsel for 26 27
1

28
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The Docket in this case does not reflect a docket entry number for PTI Global's Motion to Change Time and does not indicate that the motion was filed electronically. -1Plaintiff's Opposition to Defendant PTI Global, Inc.'s Motion to Change Time C 07-4507 JF (HRL)

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1 Acticon to discuss possible resolution of the case. Complaint, at ¶¶31-33. The Court granted 2 Pretec's motion and within one month of the Court's Order, Pretec filed for corporate dissolution, 3 without notifying the Court or contacting counsel for Acticon. Complaint, at ¶¶36-37. During that 4 same period of time, another corporation, Pretec Technology, Inc., changed its name to PTI Global, 5 Inc. Complaint, at ¶35. Corporate Statements of Information filed with the California Secretary of 6 State demonstrate that Tommy Ho, the individual who filed the Motion to Change Time in Pretec I, 7 was both the Operations Manager of Pretec and an officer and/or director of Pretec Technology, 8 Inc. (now PTI Global, Inc.) See Exhibit O to the Declaration of Christine S. Watson filed in 9 support of Acticon's Ex Parte Application for Temporary Restraining Order and Motion for 10 Preliminary Injunction (Docket Entry 9). 11 The Complaint in the instant case alleges that Pretec improperly filed for dissolution and

12 fraudulently transferred its assets to PTI Global, Inc. in order to avoid liability in Pretec I. If the 13 Court grants PTI Global, Inc.'s motion, which is almost exactly the same as the motion that Pretec 14 filed in Pretec I, PTI Global, Inc. will be afforded yet another opportunity to transfer and conceal 15 its assets in order to avoid liability. This is the very result which Acticon seeks to prevent in its 16 Motion for Preliminary Injunction. While the Court did not find circumstances warranting the 17 immediate relief of a Temporary Restraining Order, the Court did grant a briefing schedule and
2 18 hearing date for Acticon's Motion for Preliminary Injunction . The briefing schedule and hearing

19 date should not be disturbed in light of the fact that there is a substantial probability that Acticon 20 will face the same situation in this case that it faced in Pretec I if the dates are continued. Waiting 21 an additional sixty days for a hearing on Acticon's motion defeats the entire purpose of the motion 22 and will cause Acticon undue prejudice and irreparable harm, especially when the premise for PTI 23 Global, Inc.'s motion is entirely false. 24 25 26 27 28
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The parties may submit briefs not to exceed fifteen (15) pages in support of or in opposition to the Plaintiff's Motion for Preliminary Injunction by Friday, November 2, 2007. The hearing on the motion is scheduled for Friday, November 9, 2007, at 9:00 a.m. -2Plaintiff's Opposition to Defendant PTI Global, Inc.'s Motion to Change Time C 07-4507 JF (HRL)

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PTI Global, Inc. Is Represented By Counsel. PTI Global is currently represented by counsel Ms. Linda Shao. Ms. Shao filed an

3 opposition to Acticon's Ex Parte Application for Temporary Restraining Order and Motion for 4 Preliminary Injunction. In addition, Ms. Shao has been communicating with counsel for Acticon 5 regarding this case. See Exhibit 3 to the Declaration of Linda Shao Supporting PTI Global, Inc.'s 6 Opposition to Plaintiff's Ex Parte Motion for TRO and Motion for Preliminary Injunction. Ms. 7 Shao has not sought withdrawal as counsel for PTI Global, Inc., and continues to represent PTI 8 Global in this case. Consequently, there is no basis for granting PTI Global an additional sixty 9 days to obtain counsel before considering Acticon's Motion for Preliminary Injunction. 10 11 12 C. Chi-Lin Tom, General Manager of PTI Global, Inc., Cannot Represent the Corporation Pro Se. The Court should deny PTI Global, Inc.'s motion on the grounds that the motion was

13 improperly filed by the corporation itself rather than through its counsel, Ms. Linda Shao. 14 "[O]fficers of a corporation cannot represent the corporation `pro se'; nor can the partners of a 15 partnership. Such entities must appear through counsel." Rowland v. California Men's Colony 16 (1993) 506 U.S. 194, 202; Local Rule 3-9(b) ("A corporation, unincorporated association, 17 partnership or other such entity may appear only through a member of the bar of this Court"); see 18 also Schwarzer, Tashima & Wagstaffe, Fed. Civ. Proc. Before Trial, §7:49:3 (The Rutter Group 19 2007). 20 21 III. CONCLUSION

Based on the foregoing, Acticon respectfully requests that the Court deny PTI Global, Inc.'s

22 Motion to Change Time. 23 24 Dated: October 30, 2007 25 26 27 28
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Respectfully submitted,

CARR & FERRELL LLP

By: /s/ Christine S. Watson ROBERT J. YORIO COLBY B. SPRINGER CHRISTINE S. WATSON Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC -3Plaintiff's Opposition to Defendant PTI Global, Inc.'s Motion to Change Time C 07-4507 JF (HRL)