Perfect 10 Inc v. Google Inc et al

Filing 301

DECLARATION of Jeffrey N. Mausner In Support Of MOTION for Leave to file Second Amended Complaint #297 filed by Plaintiff Perfect 10 Inc. (Attachments: #1 Exhibit 10, #2 Exhibit 11, #3 Exhibit 12, #4 Exhibit 13, #5 Exhibit 14, #6 Exhibit 15, #7 Exhibit 16, #8 Exhibit 17, #9 Exhibit 18, #10 Exhibit 19, #11 Exhibit 20, #12 Exhibit 21, #13 Exhibit 22, #14 Exhibit 23)(Mausner, Jeffrey)

Perfect 10 Inc v. Google Inc et al

Doc. 30

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JEFFREY N. MAUSNER (State Bar No. 122385) DAVID N. SCHULTZ (State Bar No. 123094) Law Offices of Jeffrey N. Mausner Warner Center Towers, Suite 910 21800 Oxnard Street Woodland Hills, California 91367-3640 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Perfect 10, Inc.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PERFECT 10, INC., a California corporation, Plaintiff, v. GOOGLE INC., a corporation; and DOES 1 through 100, inclusive, Master Case No.: 04-9484 AHM (SHx) DECLARATION OF JEFFREY N. MAUSNER IN SUPPORT OF MOTION OF PLAINTIFF PERFECT 10, INC. FOR ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT

[NOTICE OF MOTION AND MOTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DR. NORMAN ZADA IN SUPPORT Defendants. THEREOF; [PROPOSED] SECOND AMENDED COMPLAINT; AND _____________________________ [PROPOSED] ORDER SUBMITTED CONCURRENTLY HEREWITH] AND CONSOLIDATED CASE Date: July 7, 2008 Time: 10:00 a.m. Place: Courtroom 14, Courtroom of the Honorable A. Howard Matz Discovery Cut-Off Date: None Set Pretrial Conference Date: None Set Trial Date: None Set

Declaration of Jeffrey N. Mausner in Support of Motion of Plaintiff Perfect 10, Inc. for Order Granting Leave to File Second Amended Complaint Dockets.Justia

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DECLARATION OF JEFFREY N. MAUSNER I, Jeffrey N. Mausner, declare as follows: 1. I am a member of the State Bar of California and admitted to practice before this Court. I am counsel of record for Plaintiff Perfect 10, Inc. ("Perfect 10") in this action. All of the matters stated herein are of my own personal knowledge, except where otherwise stated, and if called as a witness, I could and would testify competently thereto. I make this declaration in support of Perfect 10's motion for an Order granting Perfect 10 leave to file its [Proposed] Second Amended Complaint, filed concurrently herewith (the "Motion"). 2. Attached hereto as Exhibit 10 is a true and correct copy of Perfect 10's [Proposed] Second Amended Complaint, without the exhibits thereto. The exhibits are attached to the [Proposed] Second Amended Complaint that is being lodged concurrently with the Motion. 3. Attached hereto as Exhibit 11 is a "redlined version" of the [Proposed] Second Amended Complaint, comparing it to the Amended Complaint currently on file in this action. 4. This is the first time that a motion to amend the complaint against Google has been filed in this case. Perfect 10 filed its Amended Complaint in this action as of right on January 18, 2005, before Google filed a responsive pleading and only two months after Perfect 10 commenced this action, on November 19, 2004. At present, neither a trial date nor a discovery cut-off date has been set in this action. Google has not taken any depositions in the case. 5. On March 2, 2008, I sent to Rachel M. Herrick, Esq. of Quinn Emanuel Urquhart Oliver & Hedges, LLP, counsel of record for Google, a copy of the [Proposed] Second Amended Complaint that Perfect 10 was proposing to file and a "red-lined" version comparing it to the Amended Complaint. I asked Ms. Herrick if Google would stipulate to the filing of the Second Amended Complaint, or if it would be necessary to file a motion. Attached hereto as Exhibit 12 are true
-1Declaration of Jeffrey N. Mausner in Support of Motion of Plaintiff Perfect 10, Inc. for Order Granting Leave to File Second Amended Complaint

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and correct copies of my e-mails to Ms. Herrick attaching the [Proposed] Second Amended Complaint and the exhibits thereto (without the attachments). 6. In response, I received a letter from Ms. Herrick setting forth Google's position. A true and correct copy of Ms. Herrick's letter to me, dated April 4, 2008, is attached hereto as Exhibit 13. 7. On April 9, 2008, I participated in a conference of counsel in connection with the Motion with Ms. Herrick and others, pursuant to Local Rule 73. During the course of the conference, I offered to provide Ms. Herrick with the evidentiary basis for two of the allegations of the [Proposed] Second Amended Complaint, if Google would agree to stipulate to the filing of the [Proposed] Second Amended Complaint. Ms. Herrick refused this offer, saying that Google would have to see the evidentiary support for all of the allegations set forth in her April 4, 2008 letter before Google could determine whether it would stipulate to the filing of the [Proposed] Second Amended Complaint. Counsel for Google did not claim that Google would be prejudiced by the timing of the proposed amendment. 8. In the second to last paragraph of her letter of April 4, 2008 attached hereto as Exhibit 13, Ms. Herrick asserted that some of "Perfect 10's proposed amendments appear to lack a legal basis," and then listed three subparagraphs setting forth those proposed amendments. In response, Perfect 10 removed the allegation that it was entitled to statutory damages under the Lanham Act and clarified its claim for punitive damages in the [Proposed] Second Amended Complaint. Attached hereto as Exhibit 14 is a true and correct copy of an e-mail from me to Ms. Herrick, dated April 18, 2008 (without the attachments thereto), in which I attached a revised version of the [Proposed] Second Amended Complaint which contained the changes I discussed with Ms. Herrick, based upon the assertions in the second to the last paragraph of her letter, and a redlined version comparing the newest version of the [Proposed] Second Amended Complaint with
-2Declaration of Jeffrey N. Mausner in Support of Motion of Plaintiff Perfect 10, Inc. for Order Granting Leave to File Second Amended Complaint

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the version that I had forwarded to Ms. Herrick on March 2, 2008. 9. Attached hereto as Exhibit 15 is a true and correct copy of an e-mail I sent to Ms. Herrick on April 22, 2008, in which I specifically identified the changes to the [Proposed] Second Amended Complaint made by Perfect 10 in response to the assertions in the second to last paragraph of her letter of April 4, 2008 (Exhibit 13). 10. On May 19, 2008, after the conference of counsel in connection with the Motion, the Ninth Circuit issued a memorandum opinion in Stewart Title of California, Inc. v. Fidelity National Title Co., holding, among other things, that the Copyright Act does not preempt a California law misappropriation claim. Therefore, on May 21, 2008, I sent Ms. Herrick: (i) a copy of the Stewart Title opinion: (ii) an updated [Proposed] Second Amended Complaint, which is attached hereto as Exhibit 10 and which added a misappropriation claim; (iii) the "redlined version" of the [Proposed] Second Amended Complaint which is attached hereto as Exhibit 11; and (iii) a highlighted version of the updated [Proposed] Second Amended Complaint, pointing out the changes from the previous version discussed in Paragraph 8, above. Attached hereto as Exhibit 16 is a true and correct copy of my e-mail to Ms. Herrick, dated May 21, 2008, attaching these documents (without the attachments). Google has not raised any specific new objection to this change. 11. Attached hereto as Exhibit 17 is a true and correct copy of my e-mail to Ms. Herrick, dated May 29, 2008 (without the attachment), in which I forwarded to Ms. Herrick an updated version of Exhibit 7 to the [Proposed] Second Amended Complaint, a copyright chart, which contained new applications and the registration numbers for some registrations that were issued since the last chart I had forwarded Ms. Herrick. This version of Exhibit 7 is attached to the [Proposed] Second Amended Complaint that Perfect 10 seeks to file. 12. Attached hereto as Exhibit 18 are true and correct copies of portions
-3Declaration of Jeffrey N. Mausner in Support of Motion of Plaintiff Perfect 10, Inc. for Order Granting Leave to File Second Amended Complaint

of "Google's Opposition to Perfect 10's Motion for Preliminary Injunction," filed

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by Google in this action on or about September 26, 2005 (Pacer No. 43), which include the pages cited by Perfect 10 in its Memorandum of Points and Authorities in support of the Motion. 13. Attached hereto as Exhibit 19 are true and correct copies of portions of the "Declaration of Alexander Macgillivray in Support of Google's Opposition to Plaintiff's Motion for Preliminary Injunction," filed by Google in this action on or about September 26, 2005 (Pacer No. 42), which include the pages cited by Perfect 10 in its Memorandum of Points and Authorities in support of the Motion. 14. Attached hereto as Exhibit 20 are true and correct copies of portions of Google's Answer to Amended Complaint and Counterclaims, filed by Google in this action on or about February 2, 2005, which include the pages cited by Perfect 10 in its Memorandum of Points and Authorities in support of the Motion. 15. Attached hereto as Exhibit 21 is a true and correct copy of portions of Google's "Second Brief on Cross-Appeal Appellee/Cross-Appellant Google Inc.'s Response/Principal Brief," filed by Google in the Ninth Circuit on or about July 11, 2006, which includes the page cited by Perfect 10 in its Memorandum of Points and Authorities in support of the Motion. 16. Attached hereto as Exhibit 22 is a true and correct copy of portions of Google's "Fourth Brief on Cross-Appeal Appellee/Cross-Appellant Google Inc.'s Reply Brief," filed by Google in the Ninth Circuit on or about September 19, 2006, which includes the page cited by Perfect 10 in its Memorandum of Points and Authorities in support of the Motion. 17. Attached hereto as Exhibit 23 are true and correct copies of portions of "Defendant Google Inc.'s Response To Plaintiff's Corrected First Set of Requests For Admissions ," served by Google in this action on or about April 18, /// /// ///
-4Declaration of Jeffrey N. Mausner in Support of Motion of Plaintiff Perfect 10, Inc. for Order Granting Leave to File Second Amended Complaint