Marvel Worldwide, Inc. et al v. Kirby et al

Filing 12

DECLARATION of Neal L. Kirby in Support re: 9 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc)

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Marc Toberoff (MT 4862) TOBEROFF & ASSOCIATES, P.C. 2049 Century Park East, Suite 2720 Los Angeles, CA 90067 Tel: 310-246-3333 Attorneys for Defendants Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan M. Kirby UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MARVEL WORLDWIDE, INC., MARVEL CHARACTERS, INC. and MVL RIGHTS, LLC, Plaintiffs, -againstLISA R. KIRBY, BARBARA J. KIRBY, NEAL L. KIRBY and SUSAN M. KIRBY, Defendants. Civil Action No. 10-141 (CM) (KF) [Hon. Colleen McMahon] [ECF Case] DECLARATION OF NEAL L. KIRBY IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS I, Neal L. Kirby, hereby declare as follows: 1. I am the son of Jack Kirby, (a.k.a. Jacob Kurtzberg). I am familiar with the facts set forth below and make this declaration in support of defendants' motion to dismiss. The facts set forth herein are known to me of my own personal firsthand knowledge and, if called as a witness, I could and would testify competently thereto under oath. 2. I am a resident and citizen of the state of California. I reside in Orange County, California and have lived in California since 1970. 3. Along with my siblings, Barbara J. Kirby, Lisa R. Kirby and Susan M. Kirby, I executed and served by first class mail on September 16, 2009, forty-five notices of termination ("Notices of Termination") regarding prior alleged grants of copyrights in works authored or co-authored by my father. 4. I, along with my sister, Lisa Kirby, oversee the Notices of Termination and any litigation with respect thereto. I was involved in the retention of the Los Angeles law firm of Toberoff & Associates, P.C. to draft and serve the Notices of Termination and consult with the firm with respect to any litigation regarding the Notices. 5. I do not operate a business in the State of New York nor do I "systematically and continuously" transact or solicit business in New York. 6. I do not own or maintain any offices, bank accounts, real property or other assets in New York, nor do I have any employees in New York. 7. 8. I do not pay income, property or use taxes to the State of New York. On March 9, 2010, I, along with my siblings, filed a lawsuit in the United States District Court, Central District of California, seeking, among other things, a declaratory judgment that our Notices of Termination are valid and effective under the Copyright Act. 1 CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing was served electronically by the Court's ECF system and by first class mail on those parties not registered for ECF pursuant to the rules of this court. Dated: March 9, 2010 TOBEROFF & ASSOCIATES, P.C. s/Marc Toberoff By: __________________________________ Marc Toberoff (MT 4862) 2049 Century Park East, Suite 2720 Los Angeles, CA 90067 Tel: 310-246-3333 Attorneys for defendants Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan M. Kirby 3