Doe v. Geller et al

Filing 24

MOTION to Dismiss for Lack of Jurisdiction filed by Uri Geller, Explorologist Ltd.. Motion Hearing set for 12/6/2007 02:30 PM in Courtroom 6, 17th Floor, San Francisco. (Vucinich, Jeffrey) (Filed on 10/2/2007)

Doe v. Geller et al

Doc. 24

Case 3:07-cv-02478-VRW

Document 24

Filed 10/02/2007

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Jeffrey M. Vucinich (SBN 67906) [e-mail] Clapp, Moroney, Bellagamba & Vucinich 1111 Bayhill Drive, Suite 300 San Bruno, CA 94066 Telephone: [phone] Facsimile: 650.989.5499 Richard Winelander (pro hac vice) [e-mail] 1005 North Calvert Street Baltimore Maryland 21202 Telephone: [phone] Facsimile: 443.378.7503

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
JOHN DOE A/K/A BRIAN SAPIENT, Plaintiff, vs. URI GELLER and EXPLOROLOGIST LTD., Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 3:07-cv-02478 VRW NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF SUBJECT MATER JURISDICTION; LACK OF PERSONAL JURISDICTION; IMPROPER VENUE AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE BASED [Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(3), 9(b) and 12(b)(6)] Date: December 6, 2007 Time: 2:30 p.m. Courtroom: 6, 17th Floor

TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVEN that on December 6, 2007, at 2:30 p.m., or as soon thereafter as counsel may be heard by the above-entitled Court, located in Courtroom 6 on the 17th floor of the United States District Courthouse, 450 Golden Gate Avenue, San Francisco, California 94102, Explorologist, Ltd. and Uri Geller will and hereby does respectfully move

NOTICE OF MOTION AND MOTION TO DISMISS

-1-

Case Number 3:07-cv-02478 VRW

Dockets.Justia.com

Case 3:07-cv-02478-VRW

Document 24

Filed 10/02/2007

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

this Honorable Court to dismiss this case pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3), 9(b) and 12(b)(6). The grounds for this Motion are as follows: First, pursuant to Federal Rule of Civil Procedure 12(b)(1), because this Court lacks subject matter jurisdiction over the extraterritorial acts alleged to be in violation U. S. Copyright Law. Second, pursuant to Federal Rule of Civil Procedure 12(b)(2), because this court lacks personal jurisdiction over Defendants, a British corporation and British resident, neither of whom have ever been jurisdictionally "present" in the State of California. Third, pursuant to Federal Rule of Civil Procedure 12(b)(3), because Sapient's vexatious choice of forum is solely motivated by a desire to disadvantage and harass Defendants. Even assuming that this Court could exercise jurisdiction over Defendants, this case should be transferred and consolidated with the suit Explorologist filed in Philadelphia under the "first to file" rule. Fourth, and irrespective of where this case is heard, the Complaint is fatally defective because it fails to aver with particularity the circumstances that constitute fraud as required by Fed. R. Civ. P. 9(b); Fifth, the Complaint fails to state a claim upon which relief can be based. Since as a the alleged DMCA takedown was based on three-month old affidavit and otherwise failed to comply with the take down requirements of 17 U.S.C. § 512(g); there can be no liability for a DMCA takedown that is not based on a knowing misrepresentation, especially where an individual neither authorizes nor knows about the takedown; and there can be no liability under 17 U.S.C. § 512(f) where statements made in connection with a DMCA takedown that are true and made in good faith. This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the declarations of Shimshon Shtrang and Uri Geller, the exhibits, the

NOTICE OF MOTION AND MOTION TO DISMISS

-2-

Case Number 3:07-cv-02478 VRW

Case 3:07-cv-02478-VRW

Document 24

Filed 10/02/2007

Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

pleadings, and papers on file herein, and upon such other matters as may be presented to the Court at the time of hearing. Dated: October 2, 2007 _______/s/________________________ Richard Winelander, Esq. (pro hac vice) 1005 North Calvert Street Baltimore Maryland 21202 [e-mail] Telephone: [phone] Facsimile: 443.378.7503 _______/s/________________________ Jeffrey M. Vucinich, Esq. (SBN 67906) [e-mail] Clapp, Moroney, Bellagamba & Vucinich 1111 Bayhill Drive, Suite 300 San Bruno, CA 94066 Telephone: [phone] Facsimile: 650.989.5499 Attorney for Defendants, Uri Geller and Explorologist, Ltd. CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of October 2007, a copy of the foregoing Notice of Motion and Motion to Dismiss, Memorandum of Points and Authorities, Proposed Order and Exhibits were mailed, postage prepaid to: Jason Schultz, Esq. Corynne McSherry, Esq. Marcia Hofmann, Esq. Electronic Frontier Foundation 454 Shotwell Street San Francisco, CA 94110 _______/s/____________________ Richard Winelander, Esq.

NOTICE OF MOTION AND MOTION TO DISMISS

-3-

Case Number 3:07-cv-02478 VRW