EveryMD.com LLC v. Google Inc.

Filing 1

COMPLAINT against Defendant Google Inc. Case assigned to Judge Philip S. Gutierrez for all further proceedings. Discovery referred to Magistrate Judge Andrew J Wistrich. (Filing fee $ 400 PAID) Jury Demanded, filed by plaintiff EveryMD.com LLC.(car) (mg).

1

2
3
4

Frank M. We_yer,Es_(}.
(State Bar No. 127011)
TECHCOASTLA W®
2032 Whitley Ave.
Los Angeles CA 90068
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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IN THE UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT

OF CALIFORNIA

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11

12
13

EVERYMD.COM LLC~ a
California Limited Liability
Company,
Plaintiff,

14

3- 064 90-P9S
[~

COMPLAINT FOR PATENT
INFRINGEMENT

v.

15
16

Civi~·ActCVJ.

DEMAND FOR JURY TRIAL

GOOGLE INC., a Delaware
Corporation,

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Defendant.

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19

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COMES NOW, Plaintiff EVERYMD.COM LLC ("Plaintiff' or "EveryMD"),
and on information and belief alleges as follows:

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JURISDICTION AND VENUE

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1.

This is an action for patent infringement under 35 U.S.C. §§ 271 et. seq.

and 28 U.S.C. §§_l331 and 1338(a).
2.

The acts of patent infringement alleged herein occurred within this

judicial district, Plaintiff resides in this district, and Defendant GOOGLE INC.

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-1-

Complaint

1
("Defendant" or "Google") is subject to personal jurisdiction in this district.
2
Therefore, venue is proper pursuant to 28 U.S.C. §§ 1391(b), (c), and 1400(b).
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PARTIES

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5
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3.

Plaintiff is a California Limited Liability Company with a place of

business at 2032 Whitley Ave., Los Angeles, CA 90068.
4.

Defendant is a Delaware Corporation with a place of business at 1600

Amphitheatre Parkway, Mountain View, CA 94043.

9
FIRST CAUSE OF ACTION
PATENT INFRINGEMENT

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5.

Plaintiff incorporates by reference paragraphs 1 - 4 as though fully set

forth herein.

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6.

Plaintiff owns the website www.everymd.com.

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7.

Plaintiffs website at www.everymd.com has since the year 2000

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provided email messaging services allowing patients to communicate with over

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300,000 doctors.

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8.

Plaintiffs principals Frank Weyer and Troy Javaher (collectively, "the

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EveryMD inventors") invented numerous novel technologies and inventions during

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development of the www.everymd.com website.

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9.

On November 23, 1999, the EveryMD inventors filed U.S. Patent

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Application Serial No. 09/447,755 entitled "Method Apparatus and Business System
23
for Online Communications with Online and Offline Recipients" disclosing the
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inventions made by the EveryMD inventors while developing the www.everymd.com
website.

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10.

To date, four separate patents covering four separate inventions have

issued from the patent application originally filed in November 1999. Those patents

-2-

Complaint

1
2
3

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are U.S. Patent Nos. 6,671,714 (issued December 30,2003), 7,644,122 (issued
January 5, 2010), 8,499,047 (issued July 30, 2013), and 8,504,631 (issued August 6,
2013).
11.

Plaintiff is the assignee of record of U.S. Patent 8,504,631 entitled

6

"Method, Apparatus and Business System for Online Communications with Online

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and Offline Recipients" ("the '631 patent").

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12.

The '631 patent is valid and in full force and effect.

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13.

The' 631 patent is directed to a novel method for providing notification

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of online messages to a telephone number of a recipient.

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14.

Defendants Google+ service directly infringes the '631 patent by

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practicing the claimed invention of the '631 patent without authorization of Plaintiff.
15.

One example of how Defendant's Google+ service directly infringes

claim 1 of the '631 patent is set forth in paragraphs 16 to 26 below.

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16.

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"1. A method for providing for communications by a server computer system

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among afirst member of a group of members for whom said server computer system

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has created afirst server created email box and a second member of said group of

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members for whom said server computer system has created a second server created

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email box, said method comprising the steps of"

The preamble of claim 1 of the '631 patent states:

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17.

Google's Google+ service provides communications between Google+

23
members. For each Google+ member, Google's server computer system creates an
24
email box, typically an "@gmail.com" email box. Examples of email boxes created

25
26

by Google's server computer system are "[e-mail]"

(first server

created mailbox for first member "Frank Weyer") and "[e-mail]"
27
(second server created mailbox for second member "Techcoast Law").
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-3-

Complaint

1
18.

2

The limitation of claim 1 that follows the preamble of claim 1 of the '631

patent states:
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"said server computer system transmitting a first server created web page to a

5

first internet access device of said second member, said first server created web page

6

comprising a message interface for receiving by said server computer system input

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data comprising afirst message to said first member;".

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9

19.

Google's server computer system transmits various server created web

pages to an internet access device of a member (i.e. a "second member") that provide

10

message interfaces for receiving data comprising messages to another member (i.e. the

11

"first member"). The screen capture below shows an example of such a "first server

12

created web page" that includes such a "message interface." In the screen capture

13

below, the web page including the message interface has been provided to the second

14

member "Techcoast Law" for receiving data comprising a first message ("Comment")

15

to first member "Frank Weyer."

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Teehcoas

Law

..

I+

Share'

17
18

Following

intances

More

~

v

19

Sign in to start talking with friends

20

Frank Weyer
Shared pnvately - 6 52 PM

21
22
23

Hangouts

#GOO,,,

When a member posts a message, the Google servers provide an
interface that allows other members to send data comprising
messages to the posting member.

I

e .,.,

24
Add a comment

+1

Sign in

25
26
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20.

The next limitation of claim 1 of the '631 patent states:

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-4-

Complaint

1

"said server computer system receiving first input data entered into said

2
message interface from said first internet access device of said second member;"
3

21.

4

When the second member enters input data into the message interface

5

from the second member's internet access device, the first input data is received by

6

Google's server computer system, as indicated by the input data now being displayed

7

as a received message with an indicated time of receipt on the web page provided by

8

the Google server computer system, as shown in the screen capture below. In the

9

screen capture below, the web page indicates that the input data was received by

10

Google's server computer system from the internet access device of "second" member

11

"Techcoast Law" at "8:04 PM":

12

Techcoas

Law

I_~ ~~are

..

13
14

More

Following

intances

~

v

15

Sign in to start talking with friends

16

Frank Weyer
Shared pnvately

17
18
19

Hangouts

- 6 52 PrJ

.Google

When a member posts a message, the Google servers provide an
interface that allows other members to send data comprising
messages to the posting member.

I

e ."o

20
21

22

23

+1

"".
Sign in

Techcoast Law

Signing In will sign you Into

8 0<1PI\'

Hangouts

This is a message to the first member that is input into the

across Google.

Learn more

interface and received by Google's server computer system

24
Add a comment.

25
26
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22.

The next limitation of claim 1 of the '631 patent states:

28
-5-

Complaint

1

"said server computer system sending a second message to a telephone number

2
associated with said first member notifying said first member of said first input data;."
3

23.

4

Google+ allows members to indicate a telephone number at which to

5

receive notifications of online messages. The screen capture below shows the

6

different kinds of notifications the Google server computer system is configured to

7

send to a member's telephone number:

8

Receive notifications
Notify me by email or SMS when someone ...

9
Posts

.Email

I Phone

Mentions me in a post

~

~

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Shares a post with me directly

~

~

12

Shares a post and they're in a circle I subscribe to

~

~

13

Comments on a post I created

~

~

Comments on a post after I comment on it

~

~

Shares or comments on your content across the web (for example,
your blog)

~

~

10

14
15
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Circles

Email

I Phone

Adds me to a circle

~

~

Suggests new people to add to my circles

~

~

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Joins who is in my contacts

~

~

19

Photos

.Email

I Phone

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Tags me in a photo

~

~

Tags one of my photos

~

~

Suggests a profile photo for me

~

~

Comments on a photo after I comment on it

~

~

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Comments on a photo I am tagged in

~

~

24

Messenger

.Email

I Phone

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Starts a conversation with me

~

~

26

Hangouts

.Email

I Phone

Invites me to a video call

~

~

17

21

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27
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-6-

Complaint

1

24.

2
3

4

If a member has elected to receive phone notifications, Google's server

computer system sends an SMS message ("second message") to the telephone number
of the first member notifying the first member of the data input into the message
interface by the second member. Below is a photograph of an example of such an

5
SMS message sent to the first member's telephone number:
6
7
8
9
10

11
12
13
14
15

25.

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The last limitation of claim 1 of the '631 patent states:

17

"said server computer system sending a third message to said first server

18

created email box of said first member, said third message comprising said first input

19

data."

20

26.

Google+ allows members to receive notifications of messages input by

21

other members via their gmail mailboxes. If a member has elected to receive gmail

22

notifications, Google's server computer system sends an email ("third message") to

23

Google server created gmail email box comprising the first input data. Below is a

24

screen capture of such a "third message" sent by the Google server computer system

25

to the first server created email address [e-mail] .. of first member

26

"Frank Weyer":

27

28
-7-

Complaint

1

2

Re: When a member posts a message, the Google,.,

IODOX

x

View this post in Google+

New comment Techcoast Law

3
Frank Weyer

4

Shared privately

5

6

When a member
comprising

7

posts a message,

messages

the Google servers provide an interface that allows other members

to send data

to the posting member.

+1

8
Techcoast Law

9

804 PM

This is a message
server computer

to the first member that is input into the interface

and received by Google's

system

10
11

Adel a comment.

(Shared privately!

12
13
14

Techcoast Law shared trus post with you Mute notifications from Techcoast Law Mute updates to this post. To change what ernails

Googfe'" sends to you you can always manage email subscriptions on the settings page

15
16

27.

the www.everymd.com website with the '631 patent number.

17
18

Plaintiff has provided constructive notice of the '631 patent by marking

28.

Defendant has constructive and actual notice of Plaintiff' patent rights

but Defendant continues to act in conscious and willful disregard of those rights.

19

29.

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Defendant's infringements of Plaintiff's patent rights have irreparably

damaged Plaintiff and will continue to cause irreparable harm unless enjoined by the
Court.

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-8-

Complaint

1

DEMAND FOR RELIEF

2

Plaintiff asks this Court to:

3

WHEREFORE,

4

a.

Enter judgment for Plaintiff against Defendant on this Complaint;

5

b.

Enter a preliminary and permanent injunction to enjoin Defendant, and

6

all those in privity with Defendant, from further infringement of the '631 patent

7

during the remaining term of the patent;

8
9

c.

Award compensatory damages to Plaintiff and to increase those damages

three times in accordance with 35 U.S.C. § 284;

10
d.

Award Plaintiff reasonable attorneys' fees in accordance with 35 U.S.C.

13

e.

Award Plaintiff interest and costs; and

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f.

Award Plaintiff such other and further relief as is just and proper.

11
12

15

§ 285;

DEMAND FOR JURY TRIAL

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Plaintiff hereby demands a trial by jury of all issues so triable.

18

Respectfully submitted,

19

TECHCOASTLA

20

D Uc

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Dated: September 4, 2013

W®

By:
Frank M. Weyer (State Bar No. 127011)
2032 Whitley Ave.
Los Angeles, CA 90068
[phone]
Fax [phone]
[e-mail]
Attorney for Plaintiff
EVERYMD.COM LLC

28
-9-

Complaint

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NOTICE

OF ASSIGNMENT

This case has been assigned
Magistrate

Judge is

to District

Andrew

The case number

TO UNITED STATES JUDGES

___

Judge

___.:P~h.:::il~ipt::....:::::S.:....:G::::..:u:::.:t::::ie:..:.:rr:..:e:.:::.z
and the assigned

J. Wistrich

on all documents

flied with the Court should

read as follows:

2:13-CV-6490-PSG (AJWx)

Pursuant
California,

to General

the Magistrate

All discovery

Order

05-07 of the United

Judge has been designated

related

motions

should

States District
to hear discovery

be noticed

on the calendar

Court

for the Central

related

5, 2013

of

motions.

of the Magistrate

Clerk, U. S. District

September

District

Judge.

Court

By MDAVIS
Deputy Clerk

Date

NOTICE TO COUNSEL
A copy of this notice must be served with the summons and complaint on all defendants (if a removal action is
filed, a copy of this notice must be served on all plaintiffs).

Subsequent documents must be filed at the following location:
Western Division
312 N. Spring Street, G-8
Los Angeles, CA 90012

o

Southern Division
411 West Fourth St., Ste 1053
Santa Ana, CA 92701

o

Eastern Division
3470 Twelfth Street, Room 134
Riverside, CA 92501

Failure to file at the proper location will result in your documents being returned to you.
CV-18 (08/13)

NOTICE OF ASSIGNMENT TO UNITED STATES JUDGES

~

Name & Address:
Frank M. Weyer, Esq. (State Bar No. 127011)
TECHCOASTLA W®
2032 Whitley Ave.
Los Angeles CA 90068
Telephone: [phone]
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EVERYMD.COM LLC, a California Limited Liability
Company,
PLAfNTIFF(S)

CASE NUMBER

.~

i'

v.

CV 1 3 - 0 4 9 a
6

GOOGLE INC., a Delaware Corporation,
SUMMONS
DEFENDANT(S).

TO:

DEFENDANT(S):
A lawsuit has been filed against you.

Within
21 days after service of this summons on you (not counting the day you received it), you
must serve on the plaintiff an answer to the attached ri'complaint 0
amended complaint
o counterclaim 0 cross-claim or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer
or motion must be served on the plaintiff's attorney, Frank M, Weyer
, whose address is
Techcoastlaw, 2032 Whitley Ave., Los Angeles, CA 90068
. If you fail to do so,
judgment by default will be entered against you for the relief demanded in the complaint. You also must file
your answer or motion with the court.

Clerk, U.S. District Court

SEP
Dated:

• 52013
_
By

/l(a~:t£A/
(Seal of the Court)

[Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee of the United States. Allowed
60 days by Rule 12(a)(3)].

CY-OIA

(10/11

SUMMONS

•

.

CIVIL COVER SHEET

I. (a) PLAINTIFFS

( Check box if you are representing

yourself

D)

II. BASIS OF JURISDICTION

o

Number.

(b) Attorneys (Firm Name, Address and Telephone
are representing yourself, provide same.)

If you

~

04, Diversity

Government
Defendant

(Indicate Citizenship
of Parties in Item III)

IV. ORIGIN (Place an X in one box only.)
Iv1 1.Original
2. Removed from
~
Proceeding
State Court

D

V. REQUESTED

IN COMPLAINT:

CLASS ACTION

under F.R.Cv.P.

0

3. Remanded from
Appe"ate Court

JURY DEMAND:

0

23:

Yes

Number.

If you

o

3. Federal Question (U.S.
Government Not a Party)

0

Citizen of Another State

o 2. us.

0)

III. CITIZENSHIP
OF PRINCIPAL
PARTIES-For Diversity Cases Only
(Place an X In one box for plaintiff and one for defendant)
DEF
PTF
DEF
PTF
1 0 1 Incorporated or Principal Place
0 4
4
Citizen of This State
of Business In this State

(Place anX In one box only.)

1. U.S. Government
Plaintiff

yourself

GOOGLEINC.,a Delaware Corporation

EVERYMD.COM
LLC,a California Limited Liability Company

(b) Attorneys (Firm Name, Address and Telephone
are representing yourself, provide same.)
FRANKM. WEYER(BARNO. 127,011)
TECHCOASTLAW
2032 WHITLEYAVE,LOSANGELES 90068
CA
310-494-6616

( Check box if you are representing

DEFENDANTS

o

0

2

Citizen or Subject of a
Foreign Country

Reinstated
D 4, Reopened or

181 Yes 0

No

(Check

o

181No

MONEY

D

2

Incorporated and Principal Place
of Business in Another State
Foreign Nation

S, Transferred
from Another
District (Specify)

KYes" only if demanded
DEMANDED

0

6. MultlDistrict
litigation

in complaint.)

IN COMPLAINT:

$

VI. CAUSE OF ACTION (Cite the U.S.
Civil Statute under which you are filing and write a brief statement of cause, Do not cite jurisdictional statutes unless diversity.)
Patent Infringement under 35 U.S.c. 271(a)

VII.

NATURE

OF

SUIT (Place an

OTHER STATUTES

X in

one box only).

0

375 FalseClaims Act

0

CONTRACT
110 Insurance

0

0
0
0
0

400 State

0

120 Marine

0

o 4650ther
Immigration

0

0
0
0
0
0

460 Deportation

0

470 Racketeer lnfluenced & Corrupt Org.

140 Negotiable
Instrument
150 Recovery of
Overpayment &
Enforcement of
Judgment

245 Tort Product
Liability
290 All Other Real
0 Prooertv
TORTS
P£RSONAL INJURY
310Airplane

0

0

151 Medicare Act

0

152 Recovery of
Defaulted Student
Loan (Excl.Vet.)

0
0
0

Reapportionment
410 Antitrust
430 Banks and Banking
450 CommercellCC
Rates/Etc.

o 130 Miller Act

480 Consumer Credit
490 Cable/Sat lV
850 Securities/Commodities/Exchange
890 Other Statutory
Actions
891 Agricultural Acts
893 Environmental
Matters
895 Freedom of Info.

o
o 896 Arbitration
Act

o

0
0
0

0

0

190 Other
Contract

o
.

0

195 Contract
Product Liability

0

o

REAL PROPERTY

210Land
o 899 Admin. ofProcedures o Condemnation
Act/Review
Appeal of
Agency Decision
of

o

153 Recovery of
Overpayment of
Vet. Benefits
160 Stockholders'
Suits

10 196 Franchise

o 950 Constitutionality
State Statutes

Rnt
'CONT.
240 Torts to Land

0

0
0

0
0

o 220 Foreclosure
o 230 Rent Lease & o
Ejectment

FOR OFFICE USE ONLY: Case Number:

_

315 Airplane
Product Liability
320 Assault. Libel &
Slander
330 Fed. Employers'
Liability
340 Marine
345 Marine Product
liability

PRISONERPETITIONS
H.be.s Corpus:
463 Alien Detainee

IMMIGRATION
462 Naturalization
Application

PROPERTY RIGHTS

o 820 Copyrights

o
Patent
o 510 Motions to Vacate lEI 830 Trademark
Actions
Sentence
o
o 530 General
SOCIAL SECURITY
TORTS
o 535 Death Penalty
o 861 HIA (1395ff)
Other:
0 370 Other Fraud
o 862 Black Lung (923)
0 540 Mandamus/Other
o 863 DIWC/DIWN (405 (g))
0 371 Truth in Lending 0 550 Civil Rights
380 Other Personal
0 Property Damage o 555 Prison Condition o 864 SSIDTitle XVI
o 865 RSI(405 (g))
o Conditions of
560 Civil Detainee
385 Property Damage
840

..;

0
0
0

Product Liability
BANKRUPTCY
422 Appeal 28
USC158
423 Withdrawal 28
USC157
CIVIL RIGHTS
440 Other Civil Rights

350 Motor Vehicle
355 Motor Vehicle
Product Liability
0
360 Other Personal
0 441 Voting
Injury
362 Personal Injury442 Employment
Med Malpratice
443 Housingl
365 Personal InjuryAccomodations
Product Liability
445 American with
367 Health Carel
DlsabilitiesPharmaceutical
Employment
Personal Injury
Product Liability
446 American with
Disabilities-Other
368 Asbestos
::~~n~lll~rytv
D.I~Ed~ti~
un'"
~

o

o

o
o

Confinement
FORF~ITUR~~ENALTY

o 625 Drug Related 21
Seizure of Property
USC881
o

0
0

FEDERAL TAX SUITS
870 Taxes (U.S.Plaintiff or
Defendant)
871 IRS-ThirdParty 26 USC
7609

6900ther
LABOR

o Act Fair Labor Standards
710
o Relations
720 Labor/Mgmt.
o 740 Railway Labor Act
o 751 Family and Medical
Leave Act

o 790 Other Labor
litigation
0

791 Employee Ret. Inc.
Security Act

t;VI1-UOLJ'1U

AFTER COMPLETING PAGE 1 OF FORM CV-71 , COMPLETE THE INFORMATION REQUESTED ON PAGE 2.
CV-71 (02/13)

CIVILCOVERSHEET

Page 1 of 2

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
CIVIL COVER SHEET
VIII (a). IDENTICAL CASES:

Has this action been previously

filed In this court and dismissed, remanded or closed?

IE] NO

DYES

~

DYES

If yes, list case number(s):

VIII (b). RELATED CASES:

Have any cases been previously filed in this court that are related to the present case?

NO

If yes, list case number(s):

CIvil casesart dHmtd relattd If a previously filed cast and the present case:
(Check all boxes that apply)

0 A. Arise from the same or closely related transactions, happenings, or events; or

o B. Call for determination of the same or substantially related or similar questions of law and fact; or
o C. For other reasonswould entail substantial duplication of labor If heard by different judges; or
o D. Involve the same patent, trademark or copyright....an.d..onef the factors identified above in a, b or c also is present.
o
IX. VENUE:

(When completing the following information, use an additional sheet if necessary.)

(a) List the County in this District; California County outside of thisDistrict. State if other than Californle: or Foreign Country, in which EACH named
plaintiff

resides.

o Check here if the government,

its agencies or employees

is a named plaintiff.

If this box is checked, go to item (b).

California County outside of this District; State, if other than California; or Forei9n
Countrv

County In this Dlstrlct:LOSANGELES

(b) List the County in this Dlstrict: California County outside of this District; State if other than California; or Foreign Country, in which EACH named
defendant resides.

o

Check here if the government,

its agencies or employees

is a named defendant.

If this box is checked, go to item (c).

California County outside of this District; State, if other than California; or Foreign
Country

County In this Dlstrlct:LOSANGELES

(c) List the County In this Dlstrlct; California County outside of this District

State if other than Californiai or Foreign Country, in which EACH claim arose.

NOTE: In land condemnation cases, use the location of the tract of land Involved.
Califomia County outside of this District; State, if other than Californiai or Foreign
Country

County In this Dlstrlct:LOSANGELES

r:
-Los Angeles, Orang., San Bernardino, Rlv.nld., Ventura, Santa Barba" , or San Luis OfsPO countl1
Note: In land condemnation cases,use the location of the tract of land invol • d
l

-, '-"./"'"

<.
./'
DATE: SEPTEMBER 201 3
4,
X. SIGNATUREOF ATTORNEY(OR SELF·REPRESENTED
LITIGANT):
NotlcUo CounsellPartles: The CV-71 (JS-44)Civil Cover Sheetand the inforn ation contained herein neither re lace nor supp
lement the filln 9 and service of P leadin 9s or
p
other papers as required by law. This form, approved by the Judicial Conference of the United States in September' 974, is required pursuant to Local Rule-1 Is not filed
3
but is used by the Clerk of the Court for the purpose of statistics, venue and initiating the civil docket sheet. (For more detailed instructions, see separate instructions sheet).
Key to Statistical codes relating to Social Security Cases:
Nature of Suit Code
Abbreviation
Substantive Stat.ment of Cause of Action
All claims for health insurance benefits (Medicare) under rrtle '8, Part A, of the Social Security Act, asamended. Also,
861
HIA
include claims by hospitals, skilled nursin9 facilities, etc, for certification as providers of services under the program.
(42 U.S.c. 1935FF(b))
862

BL

All claims for "Black Lung" benefits under Title 4, Part8, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.c.
923)

863

DIWC

All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus
all claims filed for child's insurance benefits based on disability. (42 U.S.c.405 (g))

863

DI'INI

All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as
amended. (42 U.S.C. 05 (9))
4

864

SSID

86S

RSI

All claims for supplemental security Income payments based upon disability filed under Title16 of the Social Security Act, as
amended.
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.
(42 U.S.c. 405 (g))

CV-71 (02/13)

CIVIL COVER SHEET

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