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

Filing 13

DECLARATION of Marc Toberoff, Esq. 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. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Toberoff, Marc)

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 MARC TOBEROFF, ESQ. IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS I, Marc Toberoff, hereby declare as follows: 1. 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 an attorney and the founding partner of Toberoff & Associates, P.C., located at 2049 Century Park Place, Suite 2720, Los Angeles, California, 90067. 3. My firm represents Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan M. Kirby (the "Kirbys"), the children of legendary comic book artist and writer Jack Kirby (a.k.a. Jacob Kurtzberg). 4. On September 16, 2009, the Kirbys availed themselves of their right under the Copyright Act to recapture their father's copyright interests by serving 45 notices of termination ("Termination Notices") by first class mail on plaintiffs and all of their known predecessors and successors-in-interest pursuant to 17 U.S.C. 304(c). 5. On December 3, 2009, I held an in-person settlement conference in Los Angeles with the general counsel of plaintiffs' parent corporation, The Walt Disney Company ("Disney") regarding the Termination Notices. On December 16, 2009, I engaged in another lengthy settlement conference with Disney's general counsel and plaintiffs' current counsel. At the conclusion of the settlement conference, it was clearly contemplated and expected that Disney and plaintiffs would get back to me regarding the settlement under discussion after the Christmas holidays. Instead, plaintiffs filed the present action on January 8, 2010, without warning or any prior indication that our settlement discussions had concluded.